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https://www.courtlistener.com/api/rest/v3/opinions/3430681/ | This is an appeal from the ruling of the district court of Polk county, Iowa, in which a writ of certiorari was issued to review the acts of the executive council of the state of Iowa and H.B. Dunlap, custodian of public buildings and grounds of the state, in discharging the plaintiff, Ray Pittington, from the position of janitor foreman under the supervision and control of the custodian. There was a ruling and judgment in the trial court holding that the discharge of the plaintiff was illegal and a violation of the Soldiers' Preference Law (Code 1931, section 1159 et seq.) and ordering the executive council to reinstate the plaintiff to his former position as janitor foreman in the state house. The order also dismissed Dunlap, custodian, as a defendant in the case. From such ruling and order the defendant, executive council, has appealed.
It is conceded that the plaintiff-appellee is a World War veteran; that he had served many months as janitor foreman in the department of the custodian of public buildings and grounds and was discharged on May 31, 1933. There is no record as to who employed him, and the record as to who discharged him is very unsatisfactory. The appellants contend that the appellee was discharged by the custodian, and that such custodian is the only person or board who has the right and authority to so do; and that the executive council without authority to hire or discharge, is an unnecessary and improper party defendant. The only record as to the discharge of the appellee is a notation in the minutes of the executive council which appears to have been made on June 5, 1933, and consists of the following: "Council released Ray Pittington as janitor foreman, effective May 31, 1933, and appointed Earl A. Wright, effective June 1, 1933." There is no record of any motion or resolution having been offered or introduced or voted upon by the executive council. The custodian testifies that he discharged the appellee. The appellee's petition simply alleges that "plaintiff was, without cause, *Page 1377
excuse or any reason recognized by law, discharged from his work as janitor foreman, said discharge becoming effective about the 31st day of May, 1933." There is no allegation in the petition or the amendment thereto alleging that the executive council discharged the appellee, but simply that he was discharged by the "defendants." And at that time the executive council and the individual members thereof were named as defendants, as was also Dunlap, the custodian. It does affirmatively appear, however, that the appellee never had any communications with the executive council and that he dealt only with the custodian. The return to the writ recites "that a new custodian of public buildings and grounds was appointed and a new staff of assistants obtained by him with the approval of the Executive Council." This would indicate that the executive council had nothing to do either with the employment or discharge of the appellee, and that it simply approved the new staff of assistants.
[1] The custodian of public buildings and grounds is the head of one of the departments of the state government. The office is created under the provisions of chapter 17 of the 1931 Code (section 272 et seq.), and this chapter provides that the executive council shall appoint a custodian of public buildings and grounds who shall hold office during the pleasure of the council. The chapter also prescribes the duties of the custodian, among which we find under subdivision 4 of section 273 that it shall be the duty of the custodian to "have at all times, charge of and supervision over the police, janitors, and other employees of his department in and about the capitol and other state buildings at the seat of government." Chapter 18 of the Code (section 276 et seq.) creates the executive council as a department of the state government, and prescribes its duties and authority, but nowhere in the code will be found any statute clothing the executive council with authority to employ or discharge employees in the department of the custodian. It would appear that the employees under the custodian would be subject to being employed and discharged by the custodian alone. We can see no difference between the employees of that department and the employees in the office of the clerk of this court or in the office of the supreme court reporter and code editor. In both of the latter cases the supreme court appoints the head of the department but has nothing to do with the selection, employment, *Page 1378
or discharge of the deputies and assistants in those departments.
The appellee relies upon the case of Statter v. Herring et al.,217 Iowa 410, 251 N.W. 715, in which a yardman, an employee under the custodian's department, was discharged by the executive council, and in which we held that the executive council had authority to so act. In that case we held that there was no provision of law giving the state custodian authority to hire and discharge employees of his office; but in that case it affirmatively appeared that the executive council discharged the yardman upon the application of the state custodian. No such situation is shown by the record in the case at bar. In the case of Thurber v. Duckworth, 165 Iowa 685, 147 N.W. 158, a janitor was discharged and an action for his reinstatement was brought against the custodian and not against the executive council, and we held in that case that the custodian was the proper party defendant.
Chapter 188 of the Acts of the 45th General Assembly, which is the appropriation act for the biennium beginning July 1, 1933, and which became effective April 24, 1933, provides in section 63: "All clerks, janitors and other employees provided for by this act, shall be under the control of the head of the department and may, by him, be temporarily assigned to such other work or duties within the department as he shall direct and shall be subject to dismissal by him." And section 70 of the same act provides: "Where any provisions of the laws of this state are in conflict with this act the provisions of this act shall govern for the biennium." The act containing the provisions just quoted was not called to the attention of this court in the Starter case and was not considered by the court in arriving at the conclusion therein announced. It appears that the act referred to, chapter 188, is a clear, definite, and legislative announcement that all janitors and other employees provided for in the act shall be under the control of, and subject to dismissal by, the head of the department. The appellee questions the validity of this act, and contends that the sections quoted are not mentioned in the title to the act, and that the title is not comprehensive enough to permit the legislature to include the quoted sections, and that the inclusion of such sections in the act is in contravention of Section 29, Art. III, of the State Constitution. The contention here involves the question as to whether the title to the act is comprehensive enough to permit the inclusion of the sections we have *Page 1379
above quoted; that is, whether the quoted sections are germane and so connected with the act itself as to avoid the contention that it is in contravention of the State Constitution.
[2] The act in question has expired by operation of law, and we deem it unnecessary to pass upon the question of its constitutionality on this appeal. To say the least, section 63 of the act above quoted indicates the legislative intent and purpose to vest in the head of the various state departments not only the control and supervision of the employees of such department but also the power and authority to employ and discharge such employees.
[3] With this legislative intent definitely expressed, we are constrained to hold that the power and authority to have charge and supervision over the various employees of the various state departments, as well as the power and authority to discharge, is vested in the head of the various departments, and in the present case that the power to employ and discharge is vested in the head of the department of the custodian of public buildings and grounds, and that he is the only proper party to name as defendant in this class of proceedings. As we have indicated, the trial court without any apparent reason dismissed all named defendants other than the executive council, and this leaves the record with the executive council as the sole defendant, against which the appellee had no cause for complaint and no cause of action.
The appellant raises other contentions which, in view of our conclusions as above indicated, it will not be necessary to notice.
[4] There was no appeal by the appellee from the order of the trial court dismissing the custodian as one of the defendants named in the petition for the writ. While we think such order was erroneous, it, not having been appealed from, is the law of the case, and the appellee is not in a position to now reassert an action against such custodian.
[5] It follows from the foregoing opinion that the district court erred in ordering the executive council to reinstate the appellee as an employee of the department of the custodian, and such order must be annulled and reversed. — Reversed.
DONEGAN, C.J., and KINTZINGER, ALBERT, MITCHELL, HAMILTON, POWERS, RICHARDS, and PARSONS, JJ., concur. *Page 1380 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430682/ | The injury to the plaintiff occurred in the early evening of December 27, 1927, on a graded highway, running east and west. The distance from ditch to ditch was about 27 feet, but the traveled portion of the highway was only about 20 feet. Prior to the injury, the plaintiff had been traveling in an easterly direction upon said highway, and, discovering that his left rear tire was deflated, he stopped, jacked up the wheel, and removed the tire, which was placed in the road to the north of his car. The defendant approached the scene of the collision in his car from the west. It was a cloudy, misty, foggy evening. It is shown that the sun set at 4:30 P.M. At just what time the accident occurred, the evidence is in dispute. The evidence of plaintiff's witnesses tends to show that it occurred about 5 o'clock, while that of defendant's witnesses tends to show that the time of the accident was about 5:30. The plaintiff testified: "It must have been about 5 o'clock when we stopped." The defendant testifies that he looked at his watch when he left Modale, — some miles from the scene of the accident, — and that it was then 5:10 P.M. There is a difference in the testimony as to how far the plaintiff's car was standing from the south ditch, some of plaintiff's testimony being to the effect that it was as close to the ditch as practicable, — 18 inches or 2 feet therefrom, — while that of defendant is that the right wheels of plaintiff's car were as much as 4 feet from the ditch in the traveled portion of the road. The uncontradicted evidence is that there were no lights, neither head lights nor a tail light, displayed on plaintiff's car at the time in question. Defendant had the lights on his car turned on. Defendant testifies that, as he was approaching the scene of the accident from the west, a car with *Page 381
extremely bright lights was coming from the east, which passed him immediately west of plaintiff's car; that, on account of the bright lights facing him, he did not see the plaintiff's automobile until the other car had passed, going west, when he was about 15 feet from plaintiff's car, whereupon he applied the brakes, and turned his car to the north, missing plaintiff's automobile; and that, as he turned, he saw something sort of white, down toward the ground, move, and he still tried to miss what he then saw, but struck it. The appellant contends that, at the time when he was struck, he was standing with his left foot upon the running board of his car, with his right foot in the highway, and was looking in the car for material to fix the tire. It was plaintiff's left leg that was broken. There is evidence that the wheels of defendant's car slid 50 feet after the brakes were applied. The injury to plaintiff is severe and permanent in character, and it is unnecessary for us to further characterize the nature thereof. Appellant's sole contention is that the court erred in instructions to the jury, and we will not further detail the facts as disclosed by the evidence of the respective parties.
The appellant complains that the court, by Instructions 2 and 3, submitted to the jury, as one of the issues, a matter not alleged in defendant's answer. The appellant is wrong in this contention; for a careful reading of the answer will disclose that the statement in the instruction complained of is the substance of the allegations of the answer in this respect. The issues in a negligence case are well defined: (1) Was the defendant negligent in one or more of the particulars alleged in the petition? (2) Was said negligence the proximate cause of the injury? (3) Was the plaintiff guilty of negligence contributing to his injury? (4) What is the amount of plaintiff's damages? We have repeatedly condemned the practice by trial courts of substantially copying the pleadings in stating the issues to the jury, and in some cases, where the disputed questions were not made clear, have reversed. See Mowry v. Reinking, 203 Iowa 628;Elmore v. Des Moines City R. Co., 207 Iowa 862. Evidentiary allegations of fact alleged in the pleadings should be omitted by the court in stating the issues to the jury; but this is not appellant's complaint at this point, as made by his exceptions to the instructions. His exception to that part of the instruction is "for the reason that, in the answer of the defendant, *Page 382
the defendant made no such allegation." There is no error in the overruling of the exception as made by the appellant.
As grounds of negligence on the part of the defendant, the plaintiff alleged in his petition, in substance, as follows: (1) That the defendant was driving his automobile at a fast, dangerous, and reckless rate of speed; (2) that 1. NEGLIGENCE: the defendant was driving said automobile upon actions: the highway at the time in question without due instruc- regard to the rights of others; (3) that the tions: defendant did not have his car under proper grouping control; (4) that the defendant failed to turn distinct sufficiently to the left to avoid striking the grounds. plaintiff; (5) that the defendant did not reduce the rate of speed of his automobile to a reasonable and proper rate, when passing the plaintiff and his car; (6) that the defendant gave no sound or warning of his approach. The averments of the petition as to the grounds of negligence are not stated in the preliminary instructions as to the issues in the case. The court, in the basic instruction as to the grounds of negligence charged against the defendant, grouped the same, instead of submitting them as separate and distinct grounds of negligence. To illustrate, the court said:
"The specific acts of negligence on the part of the defendant as claimed by the plaintiff are * * * (3) That the defendant failed to turn sufficiently to the left to avoid striking the plaintiff, and that the defendant did not reduce the rate of speed of his automobile to a reasonable and proper rate, when passing plaintiff and his car."
He then told the jury that, in order to entitle the plaintiff to recover, they must find from a preponderance of the evidence that the defendant was negligent in some one or more of the ways claimed, "and as above stated." The plaintiff excepted to this grouping of the separate and distinct grounds of negligence. There is merit in appellant's complaint. See Williams v. IowaCent. R. Co., 121 Iowa 270; Rorem v. Pederson, 199 Iowa 304. If the jury had found that the defendant was negligent as to any one of the separate and distinct grounds of negligence alleged, which was the proximate cause of plaintiff's injury, and that plaintiff was free from contributory negligence, then he was entitled to recover. Under the instructions hereinbefore *Page 383
mentioned, and the illustration as given, before the jury could find for the plaintiff, it was incumbent upon them to find that the defendant was negligent on two separate and distinct grounds of negligence charged against the defendant. This is not the law. What is said as to the grouping in the aforesaid quoted portion of the instruction is also applicable to the grouping of other grounds of negligence referred to in said instruction and not herein quoted. This error is not obviated by other instructions given by the court.
The appellant complains that, in one of the court's instructions, the court told the jury that, in determining the question of negligence charged against the defendant, they should take into consideration what the defendant did; 2. NEGLIGENCE: but omitted to tell them that, in determining actions: said question, they should take into instruc- consideration what the defendant failed to do. tions: It is true that negligence is the doing of omitting something which an ordinarily careful and reference to prudent person, under the same circumstances, defendant's would not do, or the failure to do something omission to which an ordinarily careful and prudent person, act. under the same circumstances, would do. However, the court told the jury, in substance, that, in the determination of the question of negligence charged against the defendant, they should take into consideration all of the facts and circumstances as disclosed by the evidence and bearing upon that question. We find no error at this point.
The trial court told the jury that the statute provides that all motor vehicles in use on the public highway shall, during the period from one-half hour after sunset to one-half hour before sunrise display two or more white or tinted 3. AUTOMOBI- lights on the forward part of said vehicle, of LES: sufficient illuminating power to reveal any injuries persons, vehicles, or substantial objects 75 from feet ahead of the lamps; and that the statute operation, further provides that such motor vehicles, when or use of in use, shall display on the rear a lamp so highway: constructed and placed as to show a red light tail from the rear, and throwing a white light lights: when directly upon the rear registration number, so not as to render the numerals thereon visible for at required. least 50 feet in the direction from which the vehicle is proceeding. The court then added: *Page 384
"Under this statute, you will consider, so far as shown by the evidence, what lights, if any, the plaintiff had upon his car, whether it was at a time when said lights were required or reasonable, what lights the defendant had upon his car, if any, and from all the facts and circumstances in the evidence before you, determine whether or not either party was negligent with reference to the requirements or displaying of lights at the time in question."
As to this, the appellant complains, and there is merit in his complaint. It is undisputed that there were no lights displayed on plaintiff's car at the time in question. The appellant made no allegation of negligence as against the defendant in this respect. Apparently, the court was impressed with the belief that, if the time in question was more than one-half hour after sunset, then the plaintiff was under the statutory duty to display a tail light on his car standing in the highway; for he told the jury that, under the statute, they should consider whether it was at a time when said lights were required, — in other words, that, if the jury found that the accident occurred more than one-half hour after sundown, then they would be authorized to find that it was the statutory duty of the plaintiff to have displayed a tail light on his car and to find him guilty of negligence for failure to comply with the statute. The statute, Section 5045, Code, 1927, provides:
"Such motor vehicle when in use shall also display on the rear a lamp so constructed and placed as to show a red light from the rear and throw a white light directed upon the rear registration number and render the numerals thereon visible for at least 50 feet in the direction from which the vehicle is proceeding." (Writer's italics.)
The question is: Was plaintiff's car "in use" and "proceeding" at the time in question? It had been standing still for some time. Both occupants of the car, the plaintiff and his son-in-law, who was with him, were in the road, engaged in replacement of a deflated tire. It is apparent that the car was not "proceeding," and that its use had been temporarily abandoned. The plaintiff and his son-in-law were employed in fixing it, so that it could be put "in use." We had said statute before us for our *Page 385
consideration in Griffin v. McNeil, 198 Iowa 1359, and we considered the former statute in City of Harlan v. Kraschel,164 Iowa 667. At the time of our pronouncement in City of Harlan v.Kraschel, 164 Iowa 667, the statute provided: "Every motor vehicle operated or driven," etc. We there held that a standing car is not being "operated" or "driven," and that it is not "proceeding" in any "direction." The statutes considered inGriffin v. McNeil, 198 Iowa 1359, are the statutes now in force, and provide: "All motor vehicles in use," etc. "Such motor vehicle when in use," etc.
In the McNeil case, the car was parked on the right-hand side of the street, and we held that the automobile was not "in use," within the meaning of the statutory law. We there said:
"Was appellee's automobile in use, within the meaning of the statute, while standing by the side of and parallel with the curbing in front of the residence where it had been temporarily stopped? Section 1571-m17 was construed by this court in City ofHarlan v. Kraschel, 164 Iowa 667. We there held that an automobile parked on a public street was neither in `operation' nor being `driven,' within the meaning of the statute. Unless the change made in the statute by the thirty-eighth general assembly so far alters the meaning thereof as to require a different construction, the Kraschel case is decisive of this appeal. Appellant emphasizes the words `in use,' and contends that the car, although temporarily stopped on the paving, was in use, within the meaning of the statute, and that it was negligence for appellee to leave it in that position with the rear light turned off. The words `in use,' `operated,' and `driven,' as employed in this statute, are not exactly synonymous, but substantially so. While being driven and operated upon the public streets of a city or a public highway, an automobile is, of course, in use; but is it `in use' when standing by the curb of a public street, where it has been left by the driver for a temporary purpose? The interpretation of the statute cannot be based upon the meaning of the words `in use,' alone. The context must be considered. Section 1571-m17 provides: `The light or lights of the front lamps shall be visible at least 500 feet in the direction inwhich the motor vehicle is proceeding.' The thirty-eighth general assembly changed this statute so as to require the front lights to *Page 386
be `of sufficient illuminating power to be visible at a distance of five hundred feet in the direction in which displayed, and to reveal any persons, vehicle or substantial object seventy-five feet ahead of the lamps.' Section 1571-m17 further provides that: `The rays of such rear lamp shall shine upon the number plate carried on the rear of such vehicle in such manner as to render the numerals thereon visible for at least fifty feet in the direction from which the motor vehicle is proceeding.' The portion italicized above is identical with the language of the enactments of the thirty-eighth general assembly. The change in the language of Section 1571-m17, in so far as it relates to the front lights, clearly would not require a different construction from that placed upon it in the Kraschel case. The act of the thirty-eighth general assembly contemplates that the rear light shall be displayed only when the vehicle is `proceeding,' — that is, the light must be visible for a distance of 50 feet in the direction from which the motor vehicle is `proceeding.' * * * It is clear that appellee's car was not proceeding, within the meaning of the statute, while it was standing upon the street, where it had been left for an indefinite period. The fact that appellee intended later to continue his journey home in the automobile is not controlling. It was not, at the time in question, in use, in the statutory sense. The change made by the thirty-eighth general assembly does not in any material sense alter the meaning of the statute. * * * The statute requiring lights to be displayed both in the front and rear of motor vehicles was evidently intended by the legislature to apply only when said vehicles are actually in use upon a public street or highway, and not while they are parked by the side of a street. * * * The several cited statutes being read together, and effect being given to the evident spirit and purpose thereof, it seems to us that the failure of appellee to display the rear light on his automobile at the time in question did not constitute contributory negligence, as a matter of law."
It perhaps is not amiss to say that Section 5045, Code, 1927, was amended by Section 1, Chapter 25, Laws of the Forty-third General Assembly, so that, as amended, said section now reads as follows: "Such motor vehicle when in use or parked upon *Page 387 or immediately adjacent to the traveled portion of the highway,"
etc. The italicized portion constitutes the amendment.
However, this accident occurred on the evening of December 27, 1927, and we must consider the statute as it was at that time. In view of our previous pronouncements, it is quite clear that there was no statutory duty resting upon the plaintiff to have displayed a tail light on his automobile at the place in question, although it may have been more than a half hour after sundown. The standard by which plaintiff's conduct in this respect should be governed is only that of an ordinarily careful and prudent man in the same circumstances; while the jury, under the instruction given, were authorized to find a failure on his part to comply with a statutory duty. A portion of this same thought relative to the statutory duty of the plaintiff to maintain a tail light at the time in question was also erroneously inserted in another of the instructions.
The appellant complains because the court told the jury, in one of the instructions, that it appears without conflict that defendant did turn to the left, and that there was no contact or collision between the cars. It is undisputed that there was no contact or collision between the cars, but plaintiff's claim is that defendant was negligent in failing to turn sufficiently to the left to avoid striking the plaintiff. The statement should be avoided upon a retrial.
The appellant complains of what is said in Instruction Number 13, relative to contributory negligence on the part of the plaintiff; but we find no error in this respect, as the language used imposed upon the plaintiff only the duty of exercising the same care and caution as an ordinarily careful and prudent man, under the same circumstances, would have exercised.
In one of the instructions, the court told the jury of certain matters which it should take into consideration in determining the question of negligence charged against the defendant, and also the question as to contributory negligence of the plaintiff. The appellant complains of this instruction; but it is apparent that there is no reversible error at this point, as the court told the jury therein, in substance, that, in the determination of these questions, they should take into consideration all of the facts and circumstances as disclosed by the evidence and bearing upon these questions. *Page 388
We have considered all complaints made by the appellant against the instructions, and for the reasons hereinbefore given, the judgment of the trial court is hereby reversed, and the cause remanded for a new trial. — Reversed.
MORLING, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430684/ | This action was commenced at law, to recover a balance alleged to be due on account. The defendant, appellant herein, filed an answer and cross-petition, praying an accounting. On motion, the cause was transferred to equity and tried, with the result stated. The items of the account sued upon represent merchandise sold by appellee, a wholesale dealer in fruit and vegetables at Omaha, to appellant, a retail grocer in Council Bluffs. The account covers the period from September 1 to December 6, 1926. None of the items of the account sued on are in dispute. The prayer of appellant for an accounting is based upon certain alleged fraudulent conduct and transactions on the part of Lester Meyer, son of appellee, and part owner of the business, who was the salesman for Council Bluffs. The method of transacting business between the parties is of more than ordinary significance and importance. Frequent calls were made by the salesman upon appellants at their store, where numerous orders for fruit and vegetables were received. These orders were delivered by the salesman to the proper person at the office in Omaha. Invoices or statements were there made out, by the use of carbon sheets, in triplicate. The original and one carbon copy were given to the driver of the truck who made delivery of the merchandise. When delivery thereof was made, the items were checked with these statements or invoices, and the carbon copy left with appellants. The original, signed by them, was returned to the office in Omaha. The ledger account was there made up from the carbon copy retained in the office and the signed original. Later, statements of the account, in whole or in part, were made up by the bookkeeper and the salesman. In making up the statement of the account, the bookkeeper read the items from the ledger to the salesman, who entered them on the statements. *Page 679
The respective statements were then presented to appellants by the salesman, and settlement had.
Joseph Gotsdiner, with whom all of the business was conducted for appellant, testified that, before payment was made in any case, he and the salesman checked the items of the statement with the carbon statement or invoices in his possession. All payments appear to have been made by check. It is claimed by appellants that many of the statements presented by the salesman contained items of merchandise that were not shown upon the invoices; that the items were read by him from the carbon copy of the invoice, and the statements checked by the salesman; that it was the custom for the salesman to check the items not shown on the invoice by a cross. The original statements show crosses at the left of certain items thereof.
It is the further claim of appellants that full payment was made of each statement, but with the explicit agreement and understanding on the part of the salesman that he would either produce the original or signed receipt for inspection, or credit appellant with the amount of the disputed item. The salesman neither produced the original signed receipt nor was credit given for any of the disputed items. This method of settling the accounts was followed during the greater part of 1925 and 1926, and, in fact, during all of the time involved herein.
One further claim of appellant's must be considered in this connection. It is that the salesman, the attorney for appellee, appellants, and others had a conference in November, 1926, in which it was agreed on behalf of appellee that the signed original orders would be produced, or credit given for the disputed items. This claim is not disputed by appellee, but it is contended on his part that all of the statements and ledger accounts had been previously destroyed, but this was not known to the conferee representing him. The explanation offered by appellee for the destruction of these papers is that all original receipts for merchandise and ledger accounts are removed from the office and placed in a store room immediately, or soon after the account has been settled; that they are then, sooner or later, removed from the store room and destroyed, to prevent their accumulation in large quantities.
It will be observed that the method of transacting business between the parties was more than ordinarily precise and definite. *Page 680
Each invoice or statement delivered to appellant by the truck driver was carefully checked with the merchandise. The original was then signed by appellant, and returned by the driver to appellee. This method afforded full and complete protection to both buyer and seller. Any effort on the part of the seller to pad the account could be at once detected by checking the same with the invoices.
According to the testimony of Joseph Gotsdiner, this method was pursued in every instance, and in every instance, the error, if any, was discovered. Notwithstanding the certainty of the method adopted, appellants claim that they paid approximately a dozen statements in full, each of which contained items for merchandise not shown on the invoices. As stated, these payments are claimed to have been made because of the promise of the salesman to either produce the signed original of the disputed item or credit appellant therefor. One of two theories must be correct. Either appellants did not preserve or produce all of the invoices, or, if they did, they knew definitely, at the time the payments were made, that the statement was false. Thus, the element of apparent certainty in the method of transacting the business introduces into the case elements of doubt. Appellants do not claim to have independent recollection of the transactions or of the items. They naturally and necessarily rely upon the invoices. The salesman for appellee testified that, in two or three instances, a discrepancy between the invoices and the statement presented was discovered. As to these items, he testified that the original signed receipts were produced before payment was made. It is significant in this connection that shortages and rebates are noted on some of the statements, and proper deductions made therefor. This was done before payment was made.
Lester Meyer, the salesman, denied the alleged agreements on his part to produce the original receipt or credit the amount in dispute in toto, and testified that settlements were made in every instance after appellants had satisfied themselves that the statement was correct. If appellants preserved all of the invoices originally checked with the merchandise and with the signed original, they knew positively that there could be no discrepancy between them and the statement rendered. There is a total absence of any other proof that the statements were not correct. *Page 681
Appellants do not claim to have any independent recollection as to the items of merchandise received, nor of shortage thereof.
It is well settled that, where one voluntarily pays a disputed claim with full knowledge of the facts, the sum paid cannot be recovered on the ground of its invalidity. 1. PAYMENT: Garner v. Fry, 104 Iowa 515; Anderson v.
recovery of Cameron, 122 Iowa 183. It is equally well payments: settled that, where one voluntarily destroys fraud: evidence of a claim asserted by him for money payment with due, a presumption is created against him. knowledge of Warren v. Crew, 22 Iowa 315; Wallace v. Berger,
facts. 14 Iowa 183.
2. EVIDENCE: presump- tions: destruction of evidence.
The demand of appellants that the appellee produce the original signed receipt or invoice for the merchandise must have been based upon some doubt in their own minds as to the accuracy with which the invoices had been preserved by them. According to their testimony, the repeated promises of the salesman to produce these signed receipts were never performed. Nevertheless, the excuse offered by appellants for making the payments, as claimed by them, is that they had confidence in the salesman. In view of the facts stated and the method of transacting business between the parties, the confidence thus manifested is contrary to ordinary observation and experience. The aggregate of the payments claimed to have been made of improper items is $572.88. This exceeds the amount claimed by appellee to be due. The record contains no testimony tending to show that the method of handling and disposing of signed invoices and ledger accounts by appellee was not as claimed by him. Manifestly, it would have been difficult for appellant to have secured evidence on this point.
It requires more than ordinary credulity for the court to accept the contentions of appellant. It would indeed be unusual for a merchant of years of experience to repeatedly pay accounts which he reasonably knew to be erroneous, upon the mere promise of the salesman to furnish proof of the accuracy thereof. His repeated failure to do so would have certainly aroused some suspicion, at least, as to his credibility. It may be that the rule which prevents one who has voluntarily paid a demand which he knew he did not owe from recovering it, will be avoided by an express promise to repay if found invalid; but the promise alleged in this *Page 682
case is, in our opinion, not sustained by the preponderance of the evidence.
Appellant was not permitted to offer testimony of similar controversies between appellee and other customers in Council Bluffs. The theory upon which this testimony was offered is that it bore upon the question of fraudulent intent. It seems to us that there is an almost utter absence of proof of fraud. The method of transacting the business between the parties quite conclusively negatives every reason for the alleged promises of the salesman to produce the original receipts. The ruling of the court was not, in our opinion, erroneous.
We conclude that the finding and judgment of the district court is sustained by the preponderance of the evidence. — Affirmed.
ALBERT, C.J., and FAVILLE, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430685/ | On the 25th day of February, 1929, the appellants filed in the district court of Des Moines county, Iowa, a verified claim against J.D. Smyth and Theodore Kriechbaum, executors of the estate of Dr. J.J. Ransom, for $866.63, with interest thereon. On September 11, 1931, the appellants filed an amendment to their claim, in which they set up that they had an oral contract with Dr. Ransom to furnish him electric light service for his residence at the rate of $6.25 per month; that the exact amount of electricity which he used cannot be set out, as said electricity was not furnished on a meter basis, but was furnished on a flat rate plan; that the contract was entered into in 1916, and that bills were rendered each month to Dr. Ransom from 1916 to 1925; and that at the time of his death he was indebted to the claimants for 91 months electric light service at $6.25 per month, being a total of $568.75. In addition to said amount, he was indebted to claimants for merchandise items which had been charged on the electric light account in the amount of $83.10. The appellants seek to recover, first, on the oral contract and, second, upon a quantum meruit basis. To this claim the executors of the estate filed an answer, setting up, first, a general denial; second, statute of limitations; third, that the city of Burlington, Iowa, in which city the claimants operated their electric light and gas plant, had granted to the Peoples Gas
Light Company a franchise in the year 1902 for a period of 25 years, and that said ordinance established the rate to be charged for electric current; that said ordinance constituted a contract between said city and said company for the benefit of the users of electricity within said city, and said ordinance also constituted a governmental regulation *Page 286
of electric light rates; and that said alleged flat rate charges were discriminatory, against public policy, illegal, null, and void.
A jury was chosen, and the case proceeded to trial. At the close of the evidence, the executors made a motion to direct a verdict, which motion was sustained by the court and judgment entered against the Peoples Gas Electric Company for the costs. Thereafter motion for new trial was filed by the appellants, which was overruled. The appellants, being dissatisfied, have appealed to this court.
The Peoples Gas Electric Company operated a gas and electric plant in the city of Burlington, Iowa, under a franchise granted to them by that city. Dr. J.J. Ransom was the president of the American Trust Savings Bank of Burlington. He had, from the description set out in the record, a very elaborate and magnificent home, which had installed in it 130 to 140 electric lights. The entire house from basement to attic and the garage were wired for electricity. Some time in 1916, it is the claim of the electric company, an oral agreement or contract was entered into with Dr. Ransom whereby the Peoples Gas Electric Company agreed to furnish all the electricity that Dr. Ransom needed for his home at a rate of $6.25 per month. It appears from the record that Dr. Ransom did not pay his account monthly, but that it was permitted to run from month to month and from year to year. On October 10, 1916, Dr. Ransom paid the sum of $918.35, which paid his bill to May of 1916. The doctor then paid $6.25 per month for seven straight months, and after that he again allowed the bill to run on without any further payments until after the claimants sold the electric light plant in 1924 to the Iowa Southern Utilities Company. Under the agreement of sale to the Iowa Southern Utilities Company, the claimants were to retain the accounts accrued up to August 1, 1924, and to remain in possession until January 1, 1925. Dr. Ransom never paid anything on his electric bill to the claimants from December, 1916, to August 1, 1924; in other words, for a period of over seven years, the doctor, a man of means, president of the largest bank in Burlington, did not pay his electric bill. Why he was so favored does not appear in the record. Why a meter was not installed does not appear in the record. According to the claimants, the agreement was one to furnish all the electricity that the doctor needed to light his home, at the rate of $6.25 per month.
[1] Many questions are raised in this case. It will only be necessary for us to discuss one of these questions. The city of *Page 287
Burlington, Iowa, by ordinance fixed the rate to be charged for electricity. The title of the ordinance is: "An Ordinance Regulating and Fixing the Rate of Charge for Electric Light within the City of Burlington, Iowa." But, the appellants say, this was only a maximum rate, as shown by sections 2 and 3 thereof. With this we cannot agree. The ordinance in section 1 without doubt or ambiguity fixes the rate charged at a certain, definite price to be charged for electricity per month. This section, in part, reads as follows:
"Sec. 1. That the rates of charge for electricity for light furnished the users thereof, within the Corporate limits of the City of Burlington, Iowa, be and the same are hereby regulated, fixed and established as follows:
"First 175 kilowatt hours per month — 10¢ per k.w. hour.
"Next 225 kilowatt hours per month — 9¢ per k.w. hours * * *"
Section 2 of the ordinance provides:
"No person, firm or corporation supplying electricity for light within the limits of the City of Burlington, Iowa, shall make any charge in excess of the rates set out in Section 1 hereof, nor shall any person, firm or corporation exact or receive any amount in excess of the rates in said section established for electricity delivered for light within the limits of the City of Burlington, Iowa."
[2] In January of 1918 the city of Burlington passed what is known as a regulatory ordinance, which was practically the same as the first ordinance, except as to the amount to be charged; the rate to be paid by the user of electricity being increased. And after that the city of Burlington passed what is known as a third ordinance, which also increased the rates to be charged for electricity, with practically the same provisions as in the other ordinances. It is the claim of the appellants that a $6.25 charge was not in violation of the terms of said ordinance, because the only restriction in the ordinance was that the rate charged should not exceed 15 cents per 1,000 watts, now usually designated as 15 cents per k.w. (1,000 watts being one kilowatt or one k.w.). With the house which is described as the home of Dr. Ransom, with the number of lights in it, equipped with lamps burning from 60 to 120 watts each, and with the evidence showing that the house was always well lighted, the appellants claim this shows that the rate charged was not in excess of the ordinance rate. We would be willing to concede that *Page 288
the amount of electricity which the good doctor used in his palatial home exceeded the ordinance rate of 15 cents per kilowatt. But the ordinance says nothing about any maximum rate, and, clearly, it was contemplated that the electricity should be metered out and not guessed at as to the amount consumed. Any rate in excess of the rates fixed in the ordinance, or any rate below such rate, so fixed, was inconsistent with the ordinance and illegal and against public policy. There is no question that the city of Burlington had the right to make the rates. By its ordinances it fixed the rates. To permit of lower rates, such as the agreement which the company had in this case with Dr. Ransom, would at once open the door to discrimination and favoritism, which has, after so long a struggle, been largely eliminated in our public utility activities. If the electric company had a right to agree to furnish electricity at $6.25 per month, it would have the right to furnish electricity for $1 per month. The rates that other consumers must pay for electricity are fixed upon the volume of business which the company does and the income which it receives. If a favored few are permitted to receive their electricity at a lower rate or for practically nothing, then those unfortunate individuals who do not fall into the favored class are forced to pay a higher rate than they would be if all paid at the same rate. This, of course, is against public policy. The authority of the city of Burlington to establish and fix rates cannot be in this day successfully questioned. The right to fix rates was surrendered by claimants when they under their franchise exercised the privilege of occupying the streets of the city of Burlington with their poles and equipment and selling electricity to the citizens. The city of Burlington did fix the rate to be charged for electricity at so much per 1,000 watt hours. This naturally contemplated a meter service and a meter charge. Any other thought would open the door to excessive fraud and defeat the governmental rate. Any charge not on a meter basis would be inconsistent with the charge so fixed by the city, as it would be impossible for anybody to tell under ordinary use the amount of electricity consumed.
The Wisconsin court had this matter before it in the case of President and Trustees of the Village of Kilbourn City v. Southern Wisconsin Power Company, 149 Wis. 168, 135 N.W. 499. On page 504 of 135 N.W., the court said:
"Of course, the defendant had the power to contract to buy, and the plaintiff the power to contract to sell, the right to overflow the *Page 289
land of the latter, and they had the right to agree on the compensation to be paid; but they did not have the right to agree that full compensation should be made, and that, in addition thereto, the plaintiff should receive annually from $3,500 to $4,500 worth of free power. All subterfuges, whereby one consumer is called upon to pay a greater or a lesser rate than that prescribed in the published schedule of charges, or whereby one consumer obtains a preference, or advantage over another, are condemned. The scope, effect, and purpose of the law is considered at length in La Crosse v. La Crosse G. E. Co.,145 Wis. 408, 130 N.W. 530, and it is unnecessary to elaborate or repeat what is there said. The matter of giving concessions in rates in settlement of a claim for unliquidated damages was considered in Union Pacific Ry. Co. v. Goodridge, 149 U.S. 680, 13 S. Ct. 970, 37 L. Ed. 896; and it was held that such a contract was in violation of the interstate commerce act. Other cases holding that parties dealing with public service corporations must pay the regular schedule of rates for the service performed, and that these rates cannot be departed from by making a contract which recites a consideration for the departure, are L. N. Ry. Co. v. Mottley, 219 U.S. 467, 476, 31 S. Ct. 265, 55 L. Ed. 297; Wight v. U.S., 167 U.S. 512, 17 S. Ct. 822, 42 L. Ed. 258; U.S. v. C. A.R. Co. (D.C.) 148 F. 646; U.S. v. C., I. L. Ry. Co. (C.C.) 163 F. 114; U.S. v. B O. Ry. Co., 165 F. 113, 91 C.C.A. 147; Interstate Commerce Commission v. Reichmann (C.C.) 145 F. 235; Armour Packing Co. v. U.S.,209 U.S. 56, 28 S. Ct. 428, 52 L. Ed. 681. Through a rigid enforcement of our laws, state and national, favoritism to the few by public utilities in the matter of rates has been very largely done away with, and the courts should be sure they are right before placing an interpretation on statutes dealing with rates of charge which would encourage a return to the old order of things."
In the case of Incorporated Town of Mapleton v. Iowa Public Service Co., 209 Iowa 400, at page 405, 223 N.W. 476, 68 A.L.R. 933, speaking through Justice Evans, this court said:
"Moreover, the municipality which exercises the power over a public utility to fix its rates, owes a corresponding duty to protect such utility against unfair competition by reason of such regulation. The railway legislation of the country gives universal recognition to this principle. Rates, fixed under the supervision of the *Page 290
Railroad Commission must be adhered to by every carrier. The rate charged must be neither greater nor less than that fixed in the schedule. We think that the plaintiff may likewise enforce its ordinance rates."
And so it seems to us that claimants are not entitled to recover upon the alleged oral contract that it made with Dr. Ransom to furnish electricity to him for consumption in his home at a flat rate, as same was contrary to the provisions of the ordinances passed by the city of Burlington, Iowa, and to permit such contracts would be against public policy and would open the door to discrimination and favoritism.
But the appellants claim, if they are not entitled to recover upon the oral contract, they are entitled to recover on a quantum meruit basis. It is not necessary for us to answer this question, as there is no evidence in the record upon which a jury could ascertain the amount of electricity which Dr. Ransom used during this period of years in kilowatt hours, for, if the appellants are entitled to recover upon a quantum meruit basis, they would have to recover at the rate set out in the ordinance, which provides for so many cents per kilowatt hour. And, as there is a failure of proof upon this matter, appellants would not be able to recover.
[3] The ordinance, however, provides that the appellants are entitled to a minimum charge of so much per month. There is evidence in the record from which the jury could have found that the appellant company furnished electricity to Dr. Ransom; that during this period of time his house was connected with the wires of the appellant company; that electricity was used during that period of time. And under this showing it was for the jury to say whether or not the appellants would be entitled to recover what is known as the minimum charge which is provided by the ordinances passed by the city of Burlington.
[4] The appellants also claim a right to recover for a stove and other merchandise furnished to Dr. Ransom. There is evidence in the record from which the jury could have found that the stove was delivered to Dr. Ransom, and the value of said stove. This also applies to other merchandise alleged to have been furnished by the appellant company. The only defense made against this is that the statute of limitations has run. The record in this case shows an open, continuous, running account, and bills were rendered monthly to Dr. Ransom. In view of this showing, the statute of limitations *Page 291
would not apply, and the question of whether the appellants would be entitled to recover for the merchandise which they claim they furnished Dr. Ransom would be a question for the jury to decide upon the evidence submitted.
As the lower court directed a verdict against the appellants, the judgment and decree of the lower court must be, and it is hereby, reversed, and the case remanded.
EVANS, ALBERT, KINDIG, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211003/ | This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1358
Michael Barlow,
Appellant,
vs.
Hospitality Center for Chinese, Inc.,
Respondent.
Filed May 31, 2016
Affirmed
Hooten, Judge
Hennepin County District Court
File No. 27-CV-14-434
Todd M. Johnson, Scott A. Johnson, Wilbert V. Farrell, Hellmuth & Johnson, PLLC,
Edina, Minnesota (for appellant)
David J. Hoekstra, David M. Werwie & Associates, St. Paul, Minnesota (for respondent)
Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and Rodenberg,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant challenges the district court’s grant of summary judgment in favor of
respondent, arguing that the district court erred in its application of the law and by making
improper factual determinations. We affirm.
FACTS
Respondent Hospitality Center for Chinese, Inc. (HCC) is a nonprofit organization
that provides hospitality to college students and their families from China, Taiwan, and
Hong Kong. As part of its outreach activities, HCC sponsors an annual summer picnic at
the University of Minnesota. Appellant Michael Barlow, a volunteer for HCC, assisted
with the picnic each summer from 1999 to 2012. Barlow’s volunteer duties included
organizing and preparing food to be served at the picnic and bringing a corn roaster to the
picnic grounds to roast corn during the picnic. Each year, Barlow would pick up the corn
roaster with his truck and haul it to the picnic grounds. At the picnic, Barlow would train
volunteers to operate the corn roaster under his supervision, and he would also operate the
corn roaster himself.
The corn roaster was an electrically powered device that rotated ears of corn through
a heating element at 500 degrees until they were fully roasted. Those operating the corn
roaster would be within inches of the extreme heat. Because of the constant heat emanating
from the corn roaster, volunteers had to operate it in pairs, and generally no person was
supposed to operate the corn roaster for more than two hours at a time. From 1999 to 2011,
Barlow always placed the corn roaster under the shade of trees to reduce the corn roaster
operators’ exposure to heat. Prior to the 2012 picnic, Barlow never had any physical health
issues related to his volunteer work at the picnics, having never fallen, fainted, or suffered
a heat stroke.
Barlow volunteered to be a “team captain” in charge of food preparation for the
2012 picnic. He understood that his role would be to implement safety rules regarding the
2
operation of the corn roaster and to train other volunteers to operate the corn roaster at the
picnic, having no expectation that he would actually operate the corn roaster, except to
assist others as needed. It was anticipated that more than 1,600 ears of corn would be
served at the 2012 picnic. HCC assured Barlow that he would have an ample amount of
volunteers to train in the operation of the corn roaster. When Barlow volunteered to be a
team captain, he did not agree to operate the corn roaster for the entire time needed to roast
1,600 ears of corn. Rather, he expected that the volunteers assured by HCC would operate
the corn roaster under his supervision. Barlow, who was an obese 67-year-old man with
diabetes at the time of the 2012 picnic, never informed anybody at HCC of any health
issues that might impact his ability to perform his volunteer duties at the picnic.
On the day of the 2012 picnic, Barlow arrived at the picnic grounds with the corn
roaster. Upon arrival, he was informed that he would not be able to set up the corn roaster
in the shade underneath the tree in the location where he had always set it up in previous
years. The university required the corn roaster to be placed in a different location near a
permanent grounding rod that the university had installed that year. Barlow opposed
moving the corn roaster, complaining that there was no shade in the new location, but the
corn roaster was moved to the new location over his objection.
Barlow arrived two hours before the corn needed to be served, but no volunteers
came to be trained. When the time came for the corn to be roasted, Barlow plugged in the
corn roaster to prepare it for roasting. Barlow waited for other volunteers as long as he
could, but at approximately 2:00 p.m., he began to roast the corn by himself to ensure that
the roasted corn would be available to picnic patrons. As he roasted the corn, he continued
3
hoping and expecting that volunteers would arrive so that he could train them to operate
the corn roaster, but no volunteers ever appeared. Barlow did not leave the vicinity of the
corn roaster once he began roasting the corn because the extremely high temperature of the
corn roaster coupled with the proximity of the picnic patrons made for a dangerous
situation. Operating the corn roaster required Barlow to take off and replace an ear of corn
every four to six seconds. He did not turn the corn roaster off to take a break because
turning the corn roaster off would render it unusable for the remainder of the picnic.
Barlow claimed that because he had to attend the corn roaster continuously and because of
the rapid pace at which he had to operate the corn roaster, he was unable to contact anybody
in a supervisory role about his need for assistance, even though he carried a cell phone and
had one of the supervisor’s telephone numbers.
From 2:00 p.m. until approximately 5:00 p.m., Barlow operated the corn roaster by
himself. Barlow had brought his own cooler containing bottles of Gatorade and water so
that any volunteers who neglected to bring their own fluids could hydrate themselves while
they operated the corn roaster, but Barlow, being the only one operating the corn roaster,
ended up consuming all the water and Gatorade himself. The HCC director in charge of
assigning the picnic volunteers never came to the corn roasting station to ask if Barlow
needed assistance during the three hours that he operated the corn roaster. According to
Barlow, the director later said that she “had simply forgotten about” him at the picnic and
therefore had never sent any volunteers to take over the corn roasting operation. The
director denied making that statement but acknowledged that she never had any expectation
4
that Barlow would operate the corn roaster for three hours at the picnic and stated that she
expected volunteers to assist him with the corn roasting.
After he finished roasting all 1,600 ears of corn, Barlow turned off the corn roaster.
When the corn roaster had cooled to a safe temperature, he began to walk to the main tent
area where food was being served and, as he was walking to the main tent area, he suddenly
fainted and collapsed. Before collapsing, he exhibited no symptoms that would have
served as a warning that he was about to faint. Barlow has no recollection of his fall. After
he regained consciousness, people gathered around and attempted to help him. One person
retrieved a bottle of Gatorade for Barlow. After drinking the Gatorade, Barlow walked
over to the main tent and ate a plate of food. While eating, Barlow began to experience
pain in his right shoulder area. He went back to his truck and, using predominantly his left
hand, disassembled the corn roaster and loaded it back into his truck with the aid of another
person.
Barlow left the picnic, intending to return the corn roaster, but he instead drove
home because he felt faint and dizzy while driving and was still in pain. When he arrived
at his home, he called his wife and told her that he could not get out of his truck because
he was in too much pain and that he needed to go to the hospital. Barlow went to the
hospital, where a doctor informed him that he had suffered a heat stroke due to severe
dehydration. Barlow was diagnosed with a rotator cuff injury in his right shoulder and
ultimately had shoulder surgery.
Barlow sued HCC for negligence. After discovery, HCC moved for summary
judgment, which the district court granted. This appeal follows.
5
DECISION
On appeal from summary judgment, we review de novo whether there are any
genuine issues of material fact and whether the district court erred in its application of the
law. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76–77 (Minn. 2002).
“We view the evidence in the light most favorable to the party against whom summary
judgment was granted.” Id. Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that either party is
entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03.
To maintain a claim of negligence, a plaintiff must prove the following elements:
“(1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) that the
breach of the duty was a proximate cause of the injury.” Doe 169 v. Brandon, 845 N.W.2d
174, 177 (Minn. 2014). “A defendant is entitled to summary judgment as a matter of law
when the record reflects a complete lack of proof on an essential element of the plaintiff's
claim.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). Here, the district court
granted summary judgment for HCC because it concluded that “[t]he record in this case
shows a lack of proof as to the essential element of duty.”
“Generally, the existence of a legal duty is an issue for the court to determine as a
matter of law.” Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). “A volunteer is
one who does or undertakes to do that which he is not legally or morally bound to do.”
White v. Great N. Ry. Co., 142 Minn. 50, 53, 170 N.W. 849, 850 (1919). When a volunteer
undertakes to do a task, “he does so at his own risk.” Id. at 53, 170 N.W. at 851. “To one
6
who is a volunteer, properly speaking, even if assisting in the master’s work at the request
of a servant, no affirmative duty to exercise care is due originally, but only after knowledge
of peril.” Kelly v. Tyra, 103 Minn. 176, 179–80, 114 N.W. 750, 752 (1908); see also Evarts
v. St. Paul, Minneapolis & Man. Ry. Co., 56 Minn. 141, 147, 57 N.W. 459, 460 (1894)
(“[I]f, after discovering such volunteer has placed himself in a position of danger, even
through his own negligence, the servants fail to exercise reasonable care to avert the danger,
the master will be liable.”).
A defendant also owes a duty “when the defendant’s own conduct creates a
foreseeable risk of injury to a foreseeable plaintiff.” Brandon, 845 N.W.2d at 178
(emphasis omitted) (quotation omitted). In close cases, foreseeability in the context of duty
is a question for the jury, but when a case does not present a close question of foreseeability,
the district court may decide the issue as a matter of law. Id. at 178 n.2. In order for the
risk of the plaintiff’s injury to be foreseeable, it must be objectively reasonable to expect,
not merely conceivably possible. Id. at 178. “If the connection between the danger and
the defendant’s own conduct is too remote, there is no duty.” Id.
The district court concluded that “[t]here is no evidence in the record to support a
finding that [HCC] had knowledge of the specific risks involved in this case.” The district
court concluded that Barlow, as a volunteer with experience in operating the corn roaster,
“assumed the ordinary and obvious risks of working with the corn roaster,” and HCC
therefore owed him no duty. The district court further determined that the risk of Barlow’s
heat stroke or shoulder injury was not foreseeable to HCC when it moved the corn roaster
to the new location with no shade. Barlow admitted that he fell suddenly, exhibiting no
7
symptoms warning him of an impending collapse. The district court concluded that, if
Barlow himself did not expect any harm before collapsing, HCC could not have expected
any risk of harm.
We agree with the district court’s reasoning. Critically, Barlow was a volunteer to
whom HCC owed no duty. Barlow argues that he “did not ‘volunteer’ to operate the corn
roaster for three-plus hours in an un-shaded area amongst picnic patrons” and that HCC
should have known that Barlow would be placed in danger by operating the corn roaster
by himself for an extended period of time due to HCC’s failure to provide the promised
volunteers. Barlow is correct that he initially volunteered to supervise other volunteers
who would be roasting the corn and that he would only assist in the corn roasting as needed.
But, by subsequently taking on the corn roasting duties himself after no volunteers showed
up to roast the corn, he extended the scope of his volunteering because he undertook to do
something that he was “not legally or morally bound to do.” White, 142 Minn. at 53, 170
N.W. at 850. By continuing to operate the corn roaster in that capacity, he did so “at his
own risk.” Id. at 53, 170 N.W. at 851.
Barlow argues that his heat stroke caused by dehydration “should have been
foreseeable to HCC given that a [67]-year-old obese man with diabetes was forced to
continually operate the corn roaster when the HCC-designated volunteers failed to show
up.” But, Barlow never informed HCC of any health issues that would impact his ability
to perform his volunteer duties at the picnic, so HCC could not have known that he was
any more likely to suffer a heat stroke while operating the corn roaster than anybody else.
Moreover, Barlow was, for all intents and purposes, an expert in operating the corn roaster,
8
having operated the machine at numerous prior picnics, and even he appeared not to
recognize any danger in operating the corn roaster, exhibited no symptoms that could have
warned him of his impending collapse, and never experienced health problems at prior
picnics. If Barlow himself could not foresee the risk of collapsing from heat stroke after
operating the corn roaster, the danger was not so obvious as to put HCC on notice of the
risk of Barlow’s injuries. It was not objectively reasonable to expect that Barlow would
suffer a heat stroke, collapse, and injure his shoulder due to HCC’s failure to send the
anticipated volunteers to the corn roaster. Barlow, having assumed the risk of roasting
corn by volunteering to roast all 1,600 ears and having suffered an injury that could not be
foreseen by HCC’s failure to send other volunteers to the corn roaster, was therefore owed
no duty by HCC. Because Barlow cannot establish this essential element of a negligence
claim, summary judgment for HCC was appropriate.
Barlow also argues that the district court erred by resolving factual disputes in favor
of HCC. In deciding a motion for summary judgment, the district court must view the
evidence in the light most favorable to the nonmoving party. Ahlm v. Rooney, 274 Minn.
259, 262, 143 N.W.2d 65, 68 (1966). The relevant facts for purposes of summary judgment
are material facts. See Minn. R. Civ. P. 56.03. “A fact is material if its resolution will
affect the outcome of a case.” O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.
1996). The factual matters that Barlow identifies have no impact on the analysis of the
essential element of HCC’s duty. We have viewed the evidence in the
9
light most favorable to Barlow, and we conclude that the district court did not err in
determining that there are no genuine issues of material fact concerning HCC’s duty.
Affirmed. | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430749/ | Plaintiff's truck and the truck of defendant Caviness, driven by defendant Woolums, were engaged in hauling crushed rock on a road-surfacing project for Jefferson county. They collided in daylight on a dirt road. Plaintiff's empty truck was going north to the quarry, up a hill about eleven hundred feet long. The Caviness truck, loaded with five to six tons of rock, was going south down the hill. The slope or grade of the hill varied from seven to eleven per cent. The trucks collided about two hundred fifty feet south of the top of the hill.
The traveled portion of the road in the general vicinity was twenty to twenty-two feet wide. However, at about the point of collision the west two and one-half to four feet of the grade had washed out to a depth of about four feet. The distance from the east side of the washout to the east shoulder of the road was variously given as from ten to nineteen feet. The collision occurred on plaintiff's (east) side of the road almost opposite, or within some fifteen feet north of, the washed-out place. Each driver charged the other with excessive speed and failure to yield the right of way. The jury returned a verdict against both defendants for $1,300, upon which judgment was entered. *Page 777
I. Upon this appeal defendants complain that the trial court struck from their answer allegations of a custom between truckers pertaining to the right of way under such circumstances as are shown there. The stricken allegations (slightly paraphrased for the sake of brevity) are:
"Defendants further state that defendant Woolums, traveling down a hill with a loaded truck, approaching a narrow place in said roadway and about to meet the empty truck driven by plaintiff traveling up the hill, relied upon a well established custom long existing between truckers when working upon public works of the character upon which plaintiff and defendant Woolums were then working, known to plaintiff or by the exercise of reasonable care should have been known, that a driver of an empty truck would yield the right of way to the driver of a loaded truck when about to meet in a narrow or defective place in a highway * * * that plaintiff failed to observe said long established custom to yield to the loaded truck the right of way when approaching said narrow place in said roadway and contrary thereto drove into said narrow portion of said roadway at a high rate of speed, attempting to beat said defendant's approaching truck to said narrow place or to pass therein; and that said failure to so yield the right of way was negligence which contributed to the collision and the resulting damage sustained by plaintiff."
[1] Plaintiff's motion to strike the above allegations, which was sustained, stated they constitute no defense or excuse for failure to exercise the statutory care required of defendants in the operation of their truck. Defendants contend the stricken allegations properly bear on the issue of plaintiff's freedom from contributory negligence. They concede that custom or usage will not justify or excuse a negligent act. (See 38 Am. Jur., Negligence, section 34; 45 C.J., Negligence, section 803; Johnson v. Plymouth Gypsum Plaster Co., 174 Iowa 498, 503, 156 N.W. 721; Hamilton v. Chicago, B. Q. Ry. Co., 145 Iowa 431, 436, 124 N.W. 363.) Therefore, no reliance is placed on the stricken allegations as an excuse for Woolums' alleged negligence. *Page 778
This appeal is presented by both sides largely as if the trial court had ruled directly against the admissibility of evidence in support of the pleaded custom. The parties have apparently assumed defendants were precluded by the striking of the allegations from offering such evidence. Also that if evidence to prove the custom would be admissible, which plaintiff denies, the pleading would be proper. We proceed on the same assumptions, without deciding whether evidence of such a custom may be offered in a negligence case without pleading it. On the necessity of pleading custom in such a case, see 38 Am. Jur., Negligence, section 267; annotations 151 A.L.R. 324, Ann. Cas. 1912B, 1064. See, also, 25 C.J.S., Customs and Usages, section 32.
It is well settled, subject to certain qualifications, that upon the issues of negligence and contributory negligence evidence of custom in the performance of similar acts, while not a conclusive test, is generally admissible. 38 Am. Jur., Negligence, section 317; Webber v. Larimer Hdwe. Co., 234 Iowa 1381, 1386, 15 N.W.2d 286, 289, and authorities cited; Wood v. Tri-States Theater Corp., 237 Iowa 799, 807, 23 N.W.2d 843, 847. Conformity with custom is some proof of due care and nonconformity some proof of negligence. Hubb Diggs Co. v. Bell, Tex. Com. App., 1 S.W.2d 575, 576. See, also, LaSell v. Tri-States Theatre Corp., 233 Iowa 929, 943, 11 N.W.2d 36, 44.
[2] It is generally held, however, that a custom which conflicts with a statutory provision will not be enforced. Where there is such conflict, the statute must control. 55 Am. Jur., Usages and Customs, section 17; 25 C.J.S., Customs and Usages, section 10b; Harris v. Rutledge, 19 Iowa 388, 87 Am. Dec. 441; Milroy v. Chicago, M. St. P. Ry. Co., 98 Iowa 188, 197, 67 N.W. 276. Accordingly, it is usually held that a custom contrary to statute or ordinance may not be shown to excuse a violation thereof. 1 Blashfield Cyclopedia of Automobile Law and Practice, Perm. Ed., 458, 460, section 651; 15-16 Huddy Cyclopedia of Automobile Law, Ninth Ed., 371, 373, section 201.
However, there are decisions that evidence of custom is admissible even for the purpose of excusing noncompliance with *Page 779
a state or municipal regulation. Dugan v. Fry, 3 Cir., N.J., 34 F.2d 723, 724, 725; Pollock v. Hamm, 177 Ark. 348,6 S.W.2d 541; Tobin v. Goodwin, 157 Wash. 658, 290 P. 215. See, also, Hensen v. Connecticut Co., 98 Conn. 71, 118 A. 464, 467. As stated, defendants do not contend the custom upon which they rely could excuse the negligence charged against Woolums but argue only it may be considered on the issue of plaintiff's freedom from contributory negligence.
[3] Plaintiff asserts the pleaded custom may not be shown for any purpose because, it is said, it conflicts with section321.298, Code, 1946 (section 5024.02, Code, 1939), which requires persons in vehicles meeting each other on the public highway to give half the traveled way by turning to the right. A violation of this requirement is prima facie evidence of negligence. Kisling v. Thierman, 214 Iowa 911, 914, 243 N.W. 552; Lang v. Siddall, 218 Iowa 263, 269, 270, 254 N.W. 783, and cases cited.
We think the custom pleaded here cannot be invoked to supersede or nullify the above statute. But it does not follow that such custom cannot be considered in determining whether plaintiff was free from contributory negligence.
All motorists are under a two-fold duty: to comply with applicable traffic regulations and to exercise the care of the ordinarily prudent person under the circumstances. The requisite degree of care in the performance of the second duty is measured by the care ordinarily exercised under such conditions. On the question whether plaintiff performed the second of these two duties defendants were entitled to offer evidence of what was usual and customary under like circumstances.
The trial court ruled in effect plaintiff could ignore the pleaded custom and if he complied with the statute on meeting vehicles he did all that was required of him. This overlooks the fact plaintiff was also required to act with the care of the ordinarily prudent person. A motorist who complies with statutory provisions does not necessarily exercise such care. Statutes, in effect, prescribe only the minimum of prudent conduct. The jury could properly find mere compliance with the statute was not ordinary care on plaintiff's part under the circumstances *Page 780
here, including the pleaded custom, if it were established and if it were further shown plaintiff knew, or in the exercise of reasonable care should have known of it.
The stricken portion of defendants' answer alleges in effect that plaintiff knew or should have known Woolums would not yield the right of way because of the claimed custom among fellow truckers on such a project. We have frequently held a motorist may assume that other motorists will observe the law unless heknows or in the exercise of ordinary care should have knownotherwise. Thordson v. McKeighan, 235 Iowa 409, 418,16 N.W.2d 607, 611; Coon v. Rieke, 232 Iowa 859, 863, 864, 6 N.W.2d 309, 311; Johnston v. Calvin, 232 Iowa 531, 534, 5 N.W.2d 840, 842, and cases cited. The jury was so instructed here and neither side excepted to the instruction.
If because of his knowledge of the pleaded custom it was apparent to plaintiff that Woolums was not going to yield half the road, the jury could properly find plaintiff should have stopped his truck, not because of any statute but by reason of his obligation to use due care. See Jordan v. Schantz, 220 Iowa 1251, 1256, 264 N.W. 259; Coon v. Rieke, supra. The pleaded custom, if plaintiff knew or should have known of it, was relevant and material upon the question whether ordinary care required plaintiff to stop, reduce his speed, or take some other precaution to have avoided injury. If defendant violated the statute on meeting vehicles, plaintiff was not thereby excused from exercising ordinary care on his part.
Our conclusion is amply supported by authority. In Mann v. Standard Oil Co., 129 Neb. 226, 261 N.W. 168, defendant offered evidence of a recognized custom to signal a left turn by opening the left door and that its truck driver gave such signal. The statute required an arm signal. The court holds the custom could not supersede the statute but the evidence was admissible upon the issue of plaintiff's contributory negligence. Hensen v. Connecticut Co., supra, 98 Conn. 71, 118 A. 464, 466, holds testimony was properly received that defendant's truck, on the left, took the usual and customary course, not to justify the driver's negligence but solely as affecting the question of the care exercised *Page 781
by plaintiff, if it were found plaintiff was familiar with the locality and the prevailing custom. We may observe there is substantial evidence here that plaintiff was familiar with the condition of the road and the location of the washout.
Muir v. Cheney Bros., 64 Cal. App. 2d 55, 148 P.2d 138, 141, involves the question of right of way at an intersection and holds evidence of the customary course of traffic at the intersection was properly received, not to excuse plaintiff's failure to yield the right of way but to give the jury full knowledge of the circumstances at the time and place of the collision, which were known to the parties, so as to permit the jury to decide whether plaintiff acted as an ordinarily prudent person in the light of such circumstances.
It is also held evidence of custom was properly received as bearing on contributory negligence in Scott v. McKelvey, 228 Iowa 264, 268, 290 N.W. 729; Pollock v. Hamm, supra, 177 Ark. 348,6 S.W.2d 541; City of Pampa v. Todd, Tex. Civ. App., 39 S.W.2d 636; Tobin v. Goodwin, 157 Wash. 658, 290 P. 215. In the Scott, Pollock, and Tobin cases a state or municipal regulation was applicable to the matter upon which the testimony was received. See, also, Hamilton v. Chicago, B. Q. Ry. Co., 145 Iowa 431, 436-438, 124 N.W. 363; Thayer v. Smoky Hollow Coal Co., 121 Iowa 121, 127, 96 N.W. 718; Brown v. Bush, 220 Ala. 130, 124 So. 300.
II. The measure of plaintiff's recovery for damage to his truck, as pleaded and proven by him, was the reasonable value of the necessary repairs, plus the reasonable value of the use of the truck while being repaired with ordinary diligence, not exceeding the value of the truck before the collision. It was shown the reasonable value of the labor and material for the necessary repairs was $671. It took sixty-five days to obtain the necessary parts to repair the truck. In the summer of 1942, when the collision occurred, both trucks and parts were in great demand. It was shown the reasonable value of the use of the truck at that time was $23 a day. Thus plaintiff's total damages for repairs and loss of use exceeded $2,200. However, the value of the truck before the collision was only $1,300. As stated, the verdict was for this last amount. *Page 782
Sometime after it was repaired (the exact time does not appear) plaintiff sold his truck. Defendants complain they were not permitted to show, on plaintiff's cross-examination, the sale price. The record is as follows:
"Q. What did you get for the truck? A. $800. Mr. Thoma: Just a moment. Objected to as immaterial and irrelevant. The court: Sustained."
[4] Perhaps a sufficient response to this contention is that since no motion was made to strike plaintiff's answer it remained part of the record. State v. Rowe, 238 Iowa 237, 246,26 N.W.2d 422, 426, and authorities cited. Aside from this, we see no error in the ruling.
[5] It is argued that since the verdict was for the full value of the truck before the collision, plaintiff made a profit by selling the truck and recovering the verdict. Laizure v. Des Moines R. Co., 214 Iowa 918, 241 N.W. 480, is cited. The case is not in point. There nothing was claimed or allowed for loss of use of the vehicle while being repaired. The measure of recovery was therefore the reasonable cost of repair not exceeding the value of the car before the injury. Here, however, the greater part of plaintiff's damage was from loss of use of the truck while being repaired with ordinary diligence. The recovery of $1,300 was not for the value of the truck as such but because plaintiff could not recover more for cost of repair and for loss of use of his truck while being repaired than its value before the collision. However, he was entitled to recover that much. Langham v. Chicago, R.I. P.R. Co., 201 Iowa 897, 901, 208 N.W. 356, 358; Laizure v. Des Moines R. Co., supra; Kohl v. Arp,236 Iowa 31, 33, 17 N.W.2d 824, 826.
[6] III. Defendants' complaint against instruction 20 on the measure of plaintiff's recovery is without merit. The instruction accurately states the law as announced in the second rule laid down in Langham v. Chicago, R.I. P.R. Co., supra. Defendants excepted to the instruction on the ground plaintiff could not recover more for repairs and for loss of use of his truck while undergoing repairs than the difference in its value immediately before and immediately after the collision. The *Page 783
Langham case and those that follow it limit recovery for repairsand loss of use during repairs to the value of the vehicle before the injury and not to the difference in its value before and after such injury.
For the error discussed in Division I defendants are entitled to a new trial and the cause is therefore — Reversed.
OLIVER, C.J., and BLISS, HALE, SMITH, MANTZ, MULRONEY, and HAYS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430750/ | This is a suit in equity brought by the vendor (appellee) for the specific performance of a contract to sell real estate. The issues are not as complicated as the facts. In August, 1930, Foft, the appellee, purchased by written contract from certain estate referees the quarter section of land in question. The contract called for settlement on March 1, 1931. The land was encumbered by a mortgage of $13,500, past due by its terms, and held by one Schulte. On October 3, 1930, Foft sold this land by written contract to Page, the appellant. The consideration was $20,000, of which $500 was paid in cash, and the balance of $19,500 to be paid March 1, 1931, at the office of Foft in Kingsley, Iowa, without interest until due, and at 8 per cent thereafter. Page had the right to pay the $19,500 at any time before March 1, 1931, and if he did, the amount of the mortgage was to be deducted, and Page was to receive 4 per cent interest until March 1, 1932, on the amount paid by him. The contract provided for punctual payment and performance on the part of the purchaser, and contained the customary forfeiture clause, and further provided that on performance by the purchaser, the seller would furnish abstract showing clear and perfect title, and would convey by warranty deed. Page knew that Foft held the land on contract, and he also knew of the mortgage encumbrance. A few days after executing the contract Page left for California. Foft had previously arranged with Schulte to extend the mortgage beyond March 1, 1931, at 5 1/2%. Page told Foft, before leaving, that if the mortgage could be extended at 5% he would accept it. He asked Foft to find out from Schulte if the latter would do this. On November 11, 1930, Foft wrote Page that Schulte had arranged to loan the amount due on the mortgage on March 1, 1931, at 5 1/2%, and *Page 389
that the mortgage would have to be paid at that time. In this letter Foft said: "I was afraid he would not take the loan at 5 per cent. So I presume we will have to arrange to pay it March first. I thought you would want to know this in good time." Page did not reply to this letter, nor did he communicate with Foft until January 29, 1931, when he wrote him as follows:
"I have never heard from you anything further regarding the transfer of the land that we was dealing for, evidently it will not be transferred to me in time for me to secure a loan on the place before the mortgage on the place will become due, so you will have to arrange about taking care of that as owing to poor collections I will not be situated to pay more than 1/2 down and the balance I could assume. But if you do place a loan on it be sure the right to pay any amount of the mortgage that we may wish to pay at any interest paying date. If you have any doubt about their being able to give a satisfactory deed to the land by Mch. 1st please let me know."
Foft never answered this letter. On February 26, 1931, Page returned from California to Kingsley, the home of both parties. The following day he went out to the farm, where his son was making preparation to move on, and to care for twenty brood sows the father had purchased. Page observed that a portable granary had been removed since he contracted for the place. On the same day, February 27, according to Schulte and Faber, and March 2, according to Page, the appellant went to Remsen to see Schulte about the loan. According to Schulte, Page told him he couldn't get all of the money by March 1, and he wished to talk it over with Schulte about the loan, and whether he could loan it or not. Schulte told him he couldn't do anything without talking to Faber, who had arranged to use the money. Page and Schulte then went to see Faber, who told them his deal could wait fifteen days, if Page needed that much more time to procure a loan to close this March 1 land deal. Faber corroborates the testimony of Schulte. Page did not tell Schulte or Faber that he wanted until March 15 to get the money, as he had not seen Foft, and was going to see him the next day, February 28th. Foft was then in a hospital at Sioux City, where he had been since in December, 1930. Page testified that his only purpose in going to see Schulte and Faber was to find out if he *Page 390
could borrow some money at 5%, and that he never asked for an extension of the loan.
On February 28, 1931, the last day of February, Page and one of his sons called on Foft at the hospital. Foft's version of this interview was that Page told him he came over to see "what arrangements we could make about closing the deal on March 1," as he would not have the money ready then, and that he would have to have a little time to make a loan on the land. Foft said he told him he would get in touch with Gates (a banker at Kingsley) and have him try to put a loan through for Page. He asked Page to have Gates call on him the next day at the hospital. With respect to the loan Foft said he told Page, "it would take about fifteen days to make this loan, as near as I could tell, and that there was no hurry on our part, we made arrangements there and could give him fifteen days' time if he wanted it." Foft said Page mentioned the absence of the granary and he told Page he might deduct $150 therefor from the purchase price, to which Page made no reply. Page and son denied the version of Foft, and testified that Page told Foft he was ready to settle for the premises and wanted possession, and asked if Foft was ready to deliver them; and Foft said he didn't have title, although he had an abstract, but it was too deep for him. Foft also asked him to call on Gates, and to have Gates call at the hospital. Page's son corroborated his father and said the latter had demanded a deed of Foft, which the latter said he did not have. Both said nothing was mentioned about getting time to make a loan. The evidence justifies a finding that Page was financially able to perform the contract on March 1. At that time he had a credit balance in the Kingsley bank of $6,724.79 and a cash balance in Long Beach, California, bank of $6,733.50, and had arranged with another Kingsley bank for from $6,000 to $10,000. He also owned an unencumbered 220-acre farm near Kingsley. Nothing was done by either party toward closing the transaction on March 1, which was Sunday, or on March 2. Gates called on Foft on Sunday, and on Monday, Gates had Baird, the manager of a loan company, inspect the farm. Before going to the farm Baird talked with Page, and agreed to and did meet Page on his return from the farm. Page told him he would have the place looking better in a year. Baird told him the maximum loan would be $7,000. Baird testified that Page was disappointed, as he expected to be able to borrow $10,000 on the place, to use in paying for the land. He *Page 391
didn't sign an application, and said he would see Baird the following day. He stated that he had paid too much for the land, and that values had dropped, and he would like to get out of the deal, and was going to make a tender for the deed to Foft and force the contract through or give it up. Gates corroborates Baird, as do other witnesses relative to Page's dissatisfaction. Page does not deny the Baird testimony.
On March 3, Page called on Foft and asked if he had the deed and abstract ready, and receiving a negative answer, he personally delivered to Foft the following tender, in writing, prepared by his attorney, to wit:
"March 3, 1931
"Mr. Mason J. Foft, Sioux City, Iowa.
"Dear Sir:
"I hereby offer you the sum of $19,500 with interest thereon at six per cent from March 1, 1931, being the balance due on a certain contract dated October 3, 1930, whereby you agreed to sell me the Southwest Quarter (S.W. 1/4) of Section Twenty-five (25), Township Ninety-one (91), Range Forty-four (44), Plymouth County, Iowa, and offer to surrender to you said land contract and now demand of you abstract of title showing clear and perfect title to the above described land and warranty deed executed by you, conveying full title to said real estate to me.
"Yours truly, "E.L. Page."
On March 5, Page, by registered letter, received by Foft on the following day, notified Foft that because of his failure to perform the contract he had elected to terminate the same. He also demanded the return of the $500 paid, with interest at six per cent.
On March 7, Foft borrowed of the Gates bank $13,500 to pay the Schulte mortgage. The release of the mortgage was given the same day and recorded March 9. On March 7, Foft received from the referees a deed to these premises executed February 28, 1931, and recorded March 9. On March 9, Foft served on Page a written tender of deed and abstract, and a demand for $19,500. The tender recited that any defects in the abstract would be made good, and that if the offer was rejected, the deed and abstract would be left for acceptance at the office of Foft. The tender was refused.
On April 2, 1931, the appellee filed his petition, reciting many of the facts set out herein, averring his ability and readiness to perform, *Page 392
and asking judgment for $19,500 with 8% interest from March 1, 1931. Appellant's answer admits the contract, alleges the appellee's default in performance and the appellant's ability and readiness to perform and his tender of performance, and also alleges the loss of the granary. In a counterclaim appellant asks judgment for $500 with interest. Appellee's reply was a general denial, with reassertion of other matters already covered in this statement of facts.
The trial was begun on June 22, 1931. In the cross-examination of the witness Gates, it developed that his bank had taken from Foft a mortgage on the land in question, to secure the $13,500 loaned to Foft about March 7. At first the debt was unsecured, but as the closing of the transaction became further delayed, Gates became concerned lest the bank examiner would catch him without security for the notes, and between the 20th and 25th of March, Foft executed the mortgage to the bank. Although he testified that it was agreed that the mortgage was not to be recorded, and that he knew of Page's contract, and that the bank at no time claimed any rights under the mortgage superior to Page's rights in the land, yet the witness stated that the mortgage was taken to secure the money advanced and the bank was looking to the land as security, if the debt was not otherwise paid. He further testified that he was then willing that the land be deeded to Page free from the mortgage lien. On June 29, 1931, a satisfaction of a mortgage on this land, "dated and executed on the 6th day of April, 1931, and not of record," was executed by the Gates bank, and on the same day recorded. On the same day the appellee amended his petition, setting out the making of the release, and alleging that the plaintiff made no claim under the mortgage paramount to defendant's rights in the land, and tendered the release into court, that it might "make such order concerning the same as will equitably protect all of the parties hereto." The appellant amended his answer, alleging the execution of the mortgage of April 6, 1931, and that thereby plaintiff had elected to consider the land his own and to disregard the contract, and had estopped himself to ask for specific performance.
Appellant had objected to the abstract of title because a certain deed shown therein, dated July 25, 1892, purporting to have been executed by the grantors as heirs at law of the last preceding owner of record, did not recite that they were the sole heirs at law. On November 21, 1931, an affidavit curing this claimed defect was recorded *Page 393
in the recorder's office, and also filed in the clerk's office, in this cause. The abstract was last certified to March 9, 1931, and necessarily made no reference to the affidavit or the release of the unrecorded mortgage.
On January 23, 1932, the court granted decree for specific performance and judgment against appellant for $19,350, with interest at 8% from March 15, 1931, and denied appellant's counterclaim.
[1] The first question for determination is whether the parties had agreed upon a modification of the contract with respect to the time and manner of its final consummation. Page was informed, by Foft's letter of November 11, 1930, that the mortgage of $13,500 would not be extended at 5% interest, and that if he desired the extension he would have to pay interest at 5 1/2%. The holder had already agreed with Foft to extend the mortgage at the latter rate. Page gave no indication to Foft, or to the holder, that he had changed his mind, and was willing to pay the higher rate. The holder then arranged with Faber to place the money at 5 1/2% after March first.
The first communication from Page to Foft was the former's letter of January 29, 1931, in which he informed Foft that he would not be able to perform the contract on March 1, according to its terms, and that, instead of paying the full amount of $19,500, he would be able to pay only half of it, and to assume a mortgage for the balance. Foft was not bound to accept any such partial performance. He did not reply to the letter, and heard nothing more from Page. The $13,500 mortgage had been due, by its terms, since March 1, 1923, and the maturity had been extended from year to year, apparently without any extension of record. The abstract had been continued to January 24, 1931, and then to February 28, 1931. Foft said he delivered the abstract to one of Page's sons about the middle of February for examination, but it was returned to him without examination, with the statement that the elder Page would attend to it on his return. The son denied this. There is no serious dispute as to what Page did on his return from California, and when what he thus did is viewed in the light of his letter of January 29, we have little hesitancy in finding that on February 28, Page asked for, and Foft consented to, a fifteen-day extension of the final performance of the contract. In view of this finding we must also find that Page's tender of March 3 and his notice of rescission of March 5 were such a violation of the modification agreement, and *Page 394
such an abrupt change of front, that Foft could not be put in default thereby. Foft might have stood upon the modification agreement and have put himself in readiness to perform on March 15, but he elected to accept the repudiation thereof by Page, and prepared at once to place himself in position to perform. Under the circumstances he was entitled to a reasonable time in which to do so. He at once borrowed money of the Gates bank to pay the mortgage of $13,500. This was done, and a deed vesting title in him was procured on March 7, and both instruments were recorded on March 9, and the abstract was continued and certified to 9:30 o'clock in the forenoon of that day, showing the two instruments just mentioned. A written tender of the abstract and of a warranty deed from Foft to Page, and a demand of payment, together with a manual offer of the deed and abstract, the original contract, was made to Page on March 9, 1931. The tender, offer, and demand were refused.
[2] If the record showed nothing further than this, we would have no hesitancy in affirming the trial court's decree. But a more troublesome question is yet to be answered. That question is: "What effect, if any, did the execution and delivery by Foft of the unrecorded mortgage to the Gates bank, the purpose thereof, the alleged rights, if any, claimed thereunder, and its release after the close of the evidence, but before decree, have upon the appellee's right to recover?"
[3] Before answering this question, we will digress for a moment to briefly discuss some principles of law relative to the remedy of specific performance as they bear upon this case. As noted herein, Page, by the terms of the contract, was first obligated to pay, or to tender payment, before Foft was bound to tender deed and abstract. In other words the vendor, in a contract specifically requiring the vendee to first pay before getting deed, need only get himself in readiness to perform, and need make no tender until payment is made or offered by the vendee, and the vendor is not in default until this is done. We have so held in Huie v. Falde, 197 Iowa 289; Martin v. Work,201 Iowa 444; Bortz v. Wright, 206 Iowa 698; Boynton v. Salinger,147 Iowa 537. In the case last cited, suit was brought to foreclose such a contract, and the sufficiency of the petition was challenged because it did not allege the tender of the deed as a condition precedent to the maintenance of the action, nor tender such a deed. We there held that since the *Page 395
vendors were under no obligation to convey until full payment, such allegations were not necessary.
In Huie v. Falde, supra, a suit for the specific performance of such a contract by the vendor, we said:
"We are of the opinion that appellee (plaintiff) could maintain the action for specific performance against the vendee without actually executing and tendering to the vendee a deed to the premises in controversy under this contract, and that, under the facts shown, appellant was in default, and the tender of deed in the petition and upon trial was sufficient."
In Winton v. Sherman, 20 Iowa 295, an action to foreclose such a contract, the defendant answered that the plaintiff had not tendered or delivered a deed. A demurrer to the answer was overruled. In reversing, this court said:
"But this rule does not obtain in equity causes, where the court, upon a final decree, can grant just such relief as the plaintiff may show himself entitled to, upon such conditions as shall fully protect the right of the defendants, not only as to the subject matter, but also as to costs. A delivery or tender of a deed, before bringing suit in equity for the purchase-money and foreclosure of lien therefor, or other equitable relief, is not necessary."
There was a like holding in a similar case, in Grimmell v. Warner, 21 Iowa 11. In fact, in the early case of Rutherford v. Haven Co., 11 Iowa 587, such was held to be the rule in the foreclosure of a contract containing mutual and dependent covenants. The matter of "keeping a tender good" has been discussed in a number of cases, not only where specific performance was asked by the vendor, but also by the vendee. In actions of the latter kind the tender would necessarily be of payment. In equity actions of that nature, we have held that the money need not be paid into court, after a proper and adequate tender has once been made. In Martin v. Harper, 193 Iowa 259, the plaintiff tendered the money in sufficient amount, and evidenced the tender in writing, and again embodied in his petition an unconditional offer and tender of full performance on his part. We held it was not necessary to pay the money into court. Respecting a similar situation in Hayward v. Munger, 14 Iowa 516, we said:
"As to the failure to bring the money into court until after the *Page 396
order was made by the referee, we remark, that it has been held under our statute, in an action at law, that the tender must be kept up; and that a plea of tender, unaccompanied by payment of the money into court, is of no avail. Johnson v. Triggs, 4 G. Greene, 97; Mohn v. Stoner, 11 Iowa 30; Freeman v. Fleming, 5 Id., 460. The rule is one of very questionable propriety, in view of the provisions of our statute, in a law action. It was so settled, however, as early as 1853, and we have not felt disposed to disturb it. In an equitable proceeding, however, we are unwilling to give it effect. The language of the statute is that, when the tender is not accepted, the party making it may, if he sees fit, retain it in his possession; but if afterwards the party to whom it was made see proper to accept it, and give notice thereof, the subject of the tender must be delivered within a reasonable time, or it will be of no effect. Section 1815. In this case respondents, at no stage of the case, intimated their readiness to accept the tender. At law, the judgment of the tribunal is either yea or nay; that it is either simply for or against the plaintiff or defendant. There is no power to so mould and shape the judgment as to make the rights of parties contingent upon the performance of certain things. In equity the whole matter is before the chancellor. He can direct that if the money is brought into court by a day named, the relief shall be granted; and if not, that it shall be denied; and can make all needful orders as to costs, if any should be adjudged against a party for his failure to keep his tender good, as it is termed. A court of law has no such power. And in view of the power possessed by the chancellor, and the provisions of our statute, we hold, that though the money was not brought into court, until directed by the referee, complainant should not, therefore, be denied relief — should not be turned out of court to come in again, with a case which, upon all its essential facts, shows that he has done equity, and has a right, therefore, to demand it. It is not unlike the distinction, which has been recognized by us, between a law and equitable action, in that class of cases where a deed is necessary to be tendered, by the terms of the contract, before there can be a recovery for the purchase money of the land. Though necessary at law, it is not in equity."
And so we inquire, in view of the decisions mentioned above, and the facts in this case, did the plaintiff fail in either the making or the maintaining of his tender? We may concede, at least for the purpose of argument, that, after appellant had made his offer to *Page 397
pay and demand of deed on March 3, it was then incumbent on the appellee, within a reasonable time, to tender deed and abstract. He made a personal tender, adequately and properly, on March 9, and evidenced the same by a written tender wherein he promised to keep the same good. The tender having been refused, the appellee was rightfully entitled to commence his action. It was fully accrued. He had title to the land free of incumbrance, and he had tendered a warranty deed conveying the land to the appellant, and offered him an abstract of title showing that fact. At that time there was no unrecorded mortgage standing out against the property. There was then no good reason for the appellant's refusal to perform, and he therefore had no defense. And these facts distinguish this case from the case of Griffey v. Lubben,196 Iowa 465. In that case the vendors had, on March 1, the very day on which the contract matured, given a mortgage on the premises, and a few days later had given another mortgage to another person, thus incapacitating themselves from making conveyance on that day free and clear of encumbrance. That was not true of the appellee in this case on March 9, as he was then in position to comply fully with his contract. Appellee filed his petition in this action on April 2, 1931. At that time the unrecorded mortgage to the Gates bank had not been given. Gates was not sure when it was given, and he thought it was between the 20th and 25th of March; but the satisfaction recites that it was of a mortgage given April 6, 1931, and appellant in the amendment to his answer alleged that to be the date of the mortgage, so that we must accept it as a fact. At the time of the commencement of the action the appellee was ready, able, and willing to perform the contract, and so alleged in his petition. There was no mortgage on the land at that time. In Nielson v. Benedict,196 Iowa 173, that was not true, as the mortgage encumbrance complained of had been placed on the land by the mortgagor prior to the commencement thereof, but was released a few days before trial. The plaintiff in that case had also brought a quieting-title action in his own name. In both the Nielson and the Griffey cases we bottomed our ruling upon the fact that the vendors in each case had evidenced their intention of abandoning the contract and of asserting absolute ownership of the property. We find no such intent shown on the part of the appellee in this case. Everything shows the contrary intent. He at no time had put it out of his power to perform the contract. His every act showed his desire to consummate the contract. *Page 398
The bank knew of Page's rights in the land when it took the mortgage; it conceded those rights to be superior at all times; and during the trial, and directly after the taking of evidence was concluded, executed and recorded a release of the mortgage. That the trial was not fully concluded is shown by the fact that each party filed further pleadings after the release was given. Where the plaintiff is a vendee, he need not at all times have his money in court ready to deliver, but he is required only to have it where it may be produced at such time as the court may order. As we said in Hayward v. Munger, supra:
"In equity the whole matter is before the chancellor. He can direct that if the money is brought into court by a day named, the relief shall be granted; and if not, that it shall be denied; * * *"
So in this case the appellee was not required to have his abstract certified from day to day. Also the court had full power to protect the rights of the appellant. It was not necessary for the court to do so, but it had the authority to have directed the appellee to produce a release of the mortgage at any specified time, on penalty of entering decree against him. The appellant was in no way injured by reason of this mortgage. Furthermore, his conduct in this matter has not been such as to make an emphatic tug at the heartstrings of a chancellor. In his letter of January 29, he asked the appellee to place such a mortgage on the land. He solicited the appellee's good offices in seeking to get a loan for him. By his conduct he forced the appellee into an unfavorable situation, and he ought not to be permitted to take advantage of a matter resulting directly from an exigency for which he was responsible.
Appellant complains also because the alleged defect in the title was not cured until after the trial and before the decree. There is no reversible error in this.
Other matters are urged upon us by appellant, but we find no good reason for interfering with the sound judicial discretion exercised by the trial court, and its decree is therefore — Affirmed.
STEVENS, C.J., and EVANS, ALBERT, and CLAUSSEN, JJ., concur.
KINDIG, J., takes no part. *Page 399 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430751/ | A preliminary statement of some of the facts is necessary to an intelligent understanding of the question involved.
In July, 1923, the petitioner herein, E.J. Gumbert, executed a promissory note for $508.31 to the American 1. COURTS: State Bank of Walnut, Iowa. Later, the note was jurisdic- duly transferred to the Walnut State Bank, which tion: instituted a suit thereon on the first day of municipal May, 1924, in the municipal court of Council courts: Bluffs, Iowa. Defendant therein (being the territorial petitioner herein) on limitations: effect. *Page 1311
the 6th day of May following filed a motion for a change of place of trial, alleging, in the proper manner and with the proper showing, that Gumbert, the American State Bank, and the Walnut State Bank were, at all times involved, residents of the town of Walnut, Iowa; that the district court of Iowa in and for Pottawattamie County, at Avoca, had original and exclusive jurisdiction of matters arising east of the west line of Range 40 in Pottawattamie County; that the town of Walnut is located east of the west line of Range 40 in said county; and that both parties reside, and at all times have resided, east of said line. This motion was, on the 6th day of July, 1924, submitted and overruled. Following this, on the 31st day of July, the petitioner filed a motion to dismiss said cause in said municipal court, bottomed on the same grounds as set out in the former motion for change of venue, and on the same day filed a new motion for change of venue, covering substantially the same grounds. Both of these latter motions were overruled on the 7th day of January, 1925. This was followed by a petition for writ of certiorari in this court, which was filed on the 6th of February, 1925.
Under Chapter 198, Section 3, Acts of the Twentieth General Assembly, Chapter 134, Acts of the Twenty-first General Assembly, and Chapter 37, Acts of the Twenty-second General Assembly (Section 228, Code of 1897), Pottawattamie County is divided into two divisions. The district court was to be held in the western division at Council Bluffs, and in the eastern division at Avoca. Each of these courts operates independently of the other, and has complete jurisdiction in its territory. The statute especially provides that the Avoca division shall have exclusive jurisdiction of all matters arising east of the west line of Range 40. All parties to the original litigation herein were residents of the Avoca division.
The motion for a change of venue herein made, and also the motion to dismiss the case in the municipal 2. VENUE: court, were bottomed on the above facts. The change of municipal court was originally established under venue: Chapter 106 of the Acts of the Thirty-sixth change from General Assembly, and, so far as material municipal herein, Section 1 thereof provides: courts.
"That any city, * * * may establish a municipal *Page 1312
court under the provisions of this act by proceeding as hereinafter provided, and for the purpose of this act, the territorial limits of any such city shall be held to extend to the limits and include therein all civil townships in which said city or any part thereof is located."
Subsequent sections provide for a special election at which the question of the establishment of such court shall be submitted, and all electors residing within the above described territory are entitled to vote at such election. If this section means anything, it is intended to describe and mark out the territorial district of said municipal court. Section 18 of said Chapter 106 provides:
"Said municipal court shall have concurrent jurisdiction with the district court, in all civil matters, where the amount in controversy does not exceed $1,000, except in probate matters, actions for divorce, alimony, separate maintenance, those directly affecting the title to real estate, and juvenile proceedings * * *."
The narrow question presented here is whether or not, under these sections, the municipal court erred in overruling the motion first made for a change of venue. The question is not free from doubt. On first blush it might seem that there is a conflict between these sections of the statute, but on a more careful reading, it will be seen that they harmonize. In the enactment of the aforesaid Section 1, the legislature had some purpose, and it undoubtedly intended by said section to mark out the boundaries of the district of the municipal court. It could have no other purpose that we are able to discover from the various sections constituting the act which provides for the municipal court. In our opinion, its purpose was to create a judicial district out of the territory within the boundaries of the respective townships, as specified in said act.
The purpose, as we view it, of Section 18, giving concurrent jurisdiction with the district court, was to specify the subject-matter or the kind and character of litigation over which the municipal court was to have jurisdiction. It was not the purpose of Section 18 to make the jurisdiction of the municipal court concurrent with that of the district court in so far as territory was concerned. Thus construed, these two sections of *Page 1313
the law are harmonized. We are not unmindful, in reaching this conclusion, of the various decisions this court has made, interpreting statutes governing superior courts in this state; but a reading of the law creating such superior courts shows that it has no section corresponding with the first section above quoted, marking out the boundaries of its district. We think this differentiates the law establishing municipal courts from the one under which the superior courts were established. In other words, we think Section 18 should be construed to read that the municipal court has concurrent jurisdiction with the district court in the territory within the district of the municipal court, and not otherwise. This brings us, then, to the question of whether or not the municipal court erred in refusing to grant the application of the petitioner for a change of place of trial.
Section 694-c23, Supplemental Supplement to the Code, 1915, part of the Municipal Court Act, reads as follows:
"Changes of venue may be taken from the said court in all civil actions to the district court in the county in which said municipal court is situated or to another county in the same manner, for like causes and with the same effect as the venue is changed in the district court."
Among the various provisions for a change of venue in the district court are the following, from the Code of 1897:
"Sec. 3501. Personal actions, except as otherwise provided, must be brought in a county in which some of the defendants actually reside, but if neither of them have a residence in the state, they may be sued in any county in which either of them may be found. In all actions upon negotiable paper, except when made payable at a particular place, * * * the place of trial shall be limited to a county wherein some one of such makers resides."
"Sec. 3504. If an action is brought in a wrong county, it may there be prosecuted to a termination, unless the defendant, before answer, demands a change of place of trial to the proper county, in which case the court shall order the same at the cost of the plaintiff * * *."
Under these sections of the statute, we are unable to escape the conclusion that the municipal court erred in not complying *Page 1314
with the original motion herein made for a change of place of trial. The modern trend of all holdings along these lines looks to the convenience of the parties, the saving of expense in procuring witnesses, and the acquaintance of jurors with the parties. All matters of this nature require that the litigation should be submitted as near as possible to the residence of the parties.
As the aforesaid act of the legislature created the Avoca division of said district, and gave that division exclusive jurisdiction over litigation arising in its territory, we think the court erred in not granting the motion for a change of venue, and in not ordering the case transferred to the Avoca district court. This question, in its final analysis, is not so much a question of want of jurisdiction as it is a question of venue. It is, in reality, a challenge of the venue of the municipal court, and we are of the opinion that the challenge should have been sustained. This results in the sustaining of the writ of certiorari herein, and the action of the court in refusing a change of venue is reversed. — Reversed.
FAVILLE, C.J., and EVANS and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430752/ | The Indemnity Insurance Company of North America commenced this action at law against L.L. Opdycke and Herman Koehler for the recovery of money which the Insurance Company claimed to have paid on a certain referees' bond executed by Opdycke and Koehler as principals and the Indemnity Insurance Company of North America as surety. It based its right of recovery on an indemnifying agreement contained in the written application. The bond was issued in an action of partition, wherein the said principals were appointed referees to make a sale of real estate, and it is alleged that the said referees received the proceeds from the sale of said real estate and failed to account for the moneys coming into their hands; that the Insurance Company was required to pay the sum prayed for, under its suretyship.
Herman Koehler filed a separate answer, denying under oath that he signed or executed said referees' bond, or even authorized any other person to execute the same for him; denying that he ever had in his possession any funds or property in said partition action, or any funds relating to said partition action, except $50 paid to him by L.L. Opdycke, which amount he returned to the court. He denied that he was indebted in any *Page 504
amount. Prior to the time of the trial Herman Koehler died and his administrator, Alvah Griffith, was substituted in his place.
L.L. Opdycke filed a general denial.
Jury having been waived, the case was submitted to the court, which returned a verdict in favor of the Insurance Company against both of the defendants for $566.42, plus interest and attorneys' fees. The estate of Herman Koehler has appealed.
We must turn to the record to ascertain the facts.
In December of 1932 a decree of partition in cause No. 8506, entitled "Martha Weston vs. Unknown Claimants of certain real estate," was entered, ordering the sale of the real estate and appointing L.L. Opdycke and Herman Koehler as referees. A few days later Herman Koehler and L.L. Opdycke, as referees, made, signed and executed an application for referees' bond to the Indemnity Insurance Company of North America. The nature of this agreement and the conditions of same will be given consideration later in this opinion. The Indemnity Insurance Company then signed a referees' bond as surety. L.L. Opdycke signed in person. Herman Koehler did not sign, but, instead, the bond was signed "Herman Koehler by R. Feyerbend, his attorney." It was then filed by the referees. Shortly thereafter the referees filed a joint report, which was signed by R. Feyerbend as attorney for them and sworn to by Koehler and Opdycke, stating that they were the duly qualified, appointed and acting referees for the purpose of selling the real estate; that they had sold the real estate to Sam Dawson for $6,000; that they had furnished bond; and they asked that they be authorized to execute referees' deed to the purchaser. Several months later Martha Weston, the plaintiff in cause No. 8506, filed her petition, and Sam Dawson, the purchaser of the land, filed his petition, both asking for refund and payment of the $1,000 by the referees to the said purchaser, setting up certain defects in the partition action and that good title could not be made. Opdycke filed his separate report, wherein he admitted that he received $1,000 down payment as part of the purchase price of said real estate, paid by Sam Dawson; that at the request of R. Feyerbend, the attorney, he made expenditures set forth in his report, showing disposition of part of the $1,000 which he received, and that he had on hand the sum of $391.67. Herman Koehler filed his separate report, in which he set up that he had no knowledge of the expenditures set forth in L.L. *Page 505
Opdycke's report, and that he did not at any time authorize the said Opdycke to issue any checks. Objections to the report of Koehler were filed, and upon a hearing the court ordered the referees to pay to Sam Dawson the sum of $1,000.
In January of 1934 Martha Weston and Guy Schoonover, as assignees of all of the rights of Sam Dawson, commenced action against Opdycke and the Indemnity Insurance Company of North America for the sum of $1,000, with interest and costs, and judgment was entered in the amount of $365.12 in favor of the plaintiff Schoonover and in the amount of $248.90 in favor of Martha Weston. Both of these judgments were against Opdycke and the Indemnity Insurance Company of North America. It should be noted that Herman Koehler was not made a defendant in this action. Thereafter the Indemnity Insurance Company of North America paid the amount of the two judgments rendered against it, and commenced this action to recover that sum, plus interest, costs and attorneys' fees, against both Opdycke and Koehler.
The writer of this opinion does not agree with the majority of the court and his views will be set out in the dissenting opinion.
The right to recover in this action is based upon the indemnifying agreement signed by both Opdycke and Koehler, upon which agreement the bonding company signed as surety the bond in the partition action. The estate of Herman Koehler is the only party appealing, and so we are not confronted with the question of whether the judgment against Opdycke was properly entered.
The indemnifying agreement contained in the application signed by referees is as follows:
"We do hereby covenant, promise and agree to pay * * * to the company any and all loss, costs, charges, suits, damages, counsel fees and expenses of whatever kind or nature which said company shall or may for any cause at any time, sustain or incur or be put to for or by reason or in consequence of said company having entered into or executed said bond, and we do further agree that if any suit is brought on the bond herein applied for, to permit said company to employ its own counsel or attorneys to defend such suit and to repay to said company the fee of said counsel and all other costs and expenses to which the company may be put in defense of such suit." *Page 506
[1] The question is whether the two parties who signed the application, part of which is quoted above, were jointly and severally liable, or simply severally liable. Whatever liability there is in this case depends upon the construction of this application.
In the case of McArthur v. Board, 119 Iowa 562, at page 564,93 N.W. 580, the late Justice Weaver, speaking for the court, said:
"Individual cases depend so much upon the peculiar wording of the contracts under consideration and the peculiar circumstances and relations of the parties, that they are of limited value as precedents, and we think it unnecessary to go into any extended review of those which have been cited in argument. They are all in harmony with the proposition we have above stated that the intention of the parties, if it can be gathered from the language employed and the circumstances indicated by the contract as a whole, must be our guide in determining the extent of the liability thereby incurred."
In the recent case of Licht v. Klipp, 213 Iowa 1071, on page 1074, 240 N.W. 722, 724, Justice Kindig said:
"Whether a contract is joint or several must be determined by the terms thereof, viewed in the light of the attending circumstances, and the practical, mutual construction, if any, placed thereon by the parties. Shively v. Globe Mfg. Co.,205 Iowa 1233, 219 N.W. 266."
And so in the case at bar, what was the intention of Herman Koehler and L.L. Opdycke at the time they signed the application? The language is:
"We do hereby covenant, promise and agree to pay * * * all loss, costs, charges, damages, counsel fees and expenses of whatever kind or nature which said company shall or may for any cause at any time sustain or incur * * *."
The essence of this agreement between the referees and the bondsman was that the bondsman said: "Yes, I will sign your bond, but you have to agree to indemnify me against any loss, for any cause, no matter how sustained, by reason of signing of the bond." The evidence is undisputed that the company had to pay a loss. In the application that both referees signed the words "we agree" were used. Not singly, but together they *Page 507
agreed to indemnify the company against any loss which it might sustain. In view of this agreement Herman Koehler was liable for the loss suffered by the bonding company.
[2] The appellant denies that Koehler ever signed the bond. That the bonding company did sign the bond is conceded. It appears from the record that it was signed "Herman Koehler by R. Feyerbend, his attorney." It is not necessary to go into the question of whether Feyerbend, the attorney, had authority to sign the bond, because shortly after the filing of the bond the referees filed a report of sale, in which they set forth that they were the duly qualified, appointed and acting referees and that they had furnished surety bond for $8,400, the amount required by the court order. This report of sale was signed by R. Feyerbend, attorney for the referees, but was verified by Herman Koehler and L.L. Opdycke. In view of the fact that Koehler swore to the report of sale, setting forth that he had filed a bond, his administrator is now in no position to deny that Feyerbend, the attorney, did not have authority to sign Koehler's name to the bond.
There are some other questions raised in regard to the admission of evidence, all of which have been given careful consideration. We do not find there was any error prejudicial to the appellant in the admission of the testimony. It follows, therefore, that the lower court was right in entering judgment against the estate of Herman Koehler, and judgment and decree must be, and it is hereby, affirmed. — Affirmed.
RICHARDS, C.J., and ANDERSON, DONEGAN, KINTZINGER, PARSONS, SAGER, and STIGER, JJ., concur.
MITCHELL, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430753/ | I find myself unable to agree with the majority, and respectfully dissent.
The question is whether the two parties who signed the application were jointly and severally liable, or simply severally liable. Whatever liability there is in this case depends upon the construction of this application. Here we have a record which shows that L.L. Opdycke received the purchase price which was paid to the referees, and the money which he expended was expended without the authority and knowledge of Koehler. The only amount that Koehler received out of this payment was the *Page 508
sum of $50, and this amount was repaid. So we have a record in which we have two referees, one of whom did not receive any of the money, and the other expended without authority certain sums. The question is, are both referees liable? Or, is the referee who expended the money individually liable?
In the case of McArthur v. Board, 119 Iowa 562, at page 564,93 N.W. 580, the late Justice Weaver, speaking for the court, said:
"Individual cases depend so much upon the peculiar wording of the contracts under consideration and the peculiar circumstances and relations of the parties, that they are of limited value as precedents, and we think it unnecessary to go into any extended review of those which have been cited in argument. They are all in harmony with the proposition we have above stated that the intention of the parties, if it can be gathered from the language employed and the circumstances indicated by the contract as a whole, must be our guide in determining the extent of the liability thereby incurred."
In the recent case of Licht v. Klipp, 213 Iowa 1071, on page 1074, 240 N.W. 722, 724, Justice Kindig said:
"Whether a contract is joint or several must be determined by the terms thereof, viewed in the light of the attending circumstances, and the practical, mutual construction, if any, placed thereon by the parties. Shively v. Globe Mfg. Co.,205 Iowa 1233, 219 N.W. 266."
And so in the case at bar, was it the intention of the parties to bind both parties? Did Koehler agree to act as surety for Opdycke, and did Opdycke agree to act as surety for Koehler? No person can be bound for the acts or omissions of another unless he can be said to have so contracted. Koehler had nothing to do with the appointment of Opdycke, and Opdycke had nothing to do with the appointment of Koehler. They were appointed by an order of the court, and they were acting as officers of the court. What did Koehler agree to do? To make good any shortage that was due to the failure of Opdycke to account for money that came into his hands? No, what Koehler agreed to do was to account for any moneys that came into his hands. They were co-referees. This is shown by the fact that they filed separate reports. When action was brought to recover the money *Page 509
Herman Koehler was not joined as a party; only Opdycke and the Indemnity Insurance Company of North America were joined.
The question of whether referees appointed in a partition action are jointly liable appears never before to have been decided by this court, and the distinguished and able counsel representing both parties in this action have been unable to cite us authorities from other courts.
What Koehler agreed to do when he signed the application, was to account for all of the funds that came into his hands as referee. He did not in that application say, nor did the Indemnity Insurance Company require him to say, "I will not only be responsible for all of the money for which I fail to account but I will also stand responsible for the sums of money for which my co-referee fails to account." If it had been the desire of the Indemnity Insurance Company to require that, they could very easily have placed it in the application, and before the issuing of the bond could have required Koehler to have agreed to it. Had he agreed, he would have been bound. But, before he can be held accountable for the failure of Opdycke to account for funds of which Koehler had no knowledge and which never came into his hands, and which he did not in any way default upon, there must be a clear showing that Koehler agreed to pay these sums to the Indemnity Insurance Company in case his co-referee defaulted.
Upon this record, certainly, it cannot be held that Koehler ever intended to guarantee the conduct and fidelity of Opdycke.
In my judgment the Koehler Estate would be liable for only such amounts of money that Koehler misappropriated or failed to account for, and the lower court erred in entering judgment against the estate for the amount for which Opdycke failed to account. I would reverse the case. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430754/ | In 1925 L.C. Barnett owned a life estate in a tract of land embracing about 185 acres in Warren county, Iowa. On the 27th day of August, 1925, the said Barnett and his wife executed a trust agreement and a trust deed in the following language:
"TRUST AGREEMENT
"This memorandum of agreement entered into on this 27th day of August, 1925, between L.C. Barnett and Dorothy M. Barnett, first parties, and Howard F. Sones, Second party, witnesseth:
"That first parties have this day conveyed to second party upon the terms and conditions hereinafter specified the following described premises situated in Warren County, Iowa, to-wit: The West half of the Northwest quarter and the North half of the Northeast quarter of the Northwest quarter of Section 26, Township 76 North, Range 24 West 5th P.M. Iowa, and the East 1/3 of the 73 3/4 acres of the West part of the South half of the Southeast Quarter of Section 35, Township 76 North, Range 24 West 5th P.M. Iowa.
"First parties have conveyed said premises to second party as trustee to be held by second party in trust for the purpose of securing to Irvin Law the payment of one note for $5000.00, dated September 1, 1925, due five years from date and in consideration of said trust it is mutually agreed between the parties hereto that second party is to have immediate possession of said premises and is to have the right to rent said premises and operate same as a farm and to collect the rents therefrom and out of the proceeds of the rental from said farm second party is to pay the taxes on said premises and is to make the necessary repairs thereon and is to *Page 189
pay any life insurance premium on the life insurance policy hereinafter provided for and any amount remaining is to be applied on the interest on said note and upon the principal as the same matures, or as second party may see fit to apply same.
"It is further understood and agreed that L.C. Barnett is to provide life insurance on his own life in an amount equal to $5000.00 with this trustee named as beneficiary therein for the purposes of further securing the payment of said note, for the reason that the said L.C. Barnett, one of the first parties herein owns only a life estate in said premises so that in case of his death this trust would be terminated and there would be no source of payment of said note aside from said life insurance.
"It is understood that when said note and interest is fully paid off and discharged that this trust shall end and all of said property including the proceeds of any of said insurance is to be returned to L.C. Barnett or to his estate.
"The reasonable expenses of this trust, including the compensation of said trustee is to be paid out of the rental from said lands.
"This contract is to be signed in triplicate, one copy to be held by first parties, one copy by second parties and one copy by Irvin Law."
"TRUST DEED
"Know All Men by These Presents:
"That we, L.C. Barnett and Dorothy M. Barnett, husband and wife, in consideration of One Dollar in hand paid by Howard F. Sones, Trustee, as hereinafter provided, do hereby transfer and convey to the said Howard F. Sones, Trustee, the following described premises situated in Warren County, Iowa, to-wit:
"The West Half of the Northwest Quarter and the North Half of the Northeast Quarter of the Northwest Quarter of Section 26, Township 76 North, Range 24 West 5th P.M. Iowa, and the East 1/3 of the 73 3/4 acres of the West part of the South Half of the Southeast Quarter of Section 35, Township 76 North, Range 24 West 5th P.M. Iowa, and said L.C. Barnett and Dorothy M. Barnett, hereby relinquish their right of dower in and to said premises.
"The purpose of this deed is to convey said premises to the said Howard F. Sones in trust as security for the payment of one note for $5000.00 signed by the grantors, dated September 1, 1925, due five years from date, payable to Irvin Law. *Page 190
"The said trustee is to have immediate possession of said premises but it is understood that if the grantors pay $5000.00 or more on said note on or before the 1st day of January, 1926, as they have an option to do, then said trustee shall relinquish to said grantors all of the 1925 crop on said premises, but the grantors shall have no farther interest in the income or proceeds from said premises until said debt is fully paid off and discharged.
"The full terms of said trust are evidenced by a contract of even date herewith between the grantors and the grantee herein."
It will be observed that one Howard F. Sones was named as trustee in the agreement and in the deed. Subsequently one Joe McCoy was appointed trustee in the stead of Sones. Pursuant to the agreement the trustee entered into possession of the land and appears to have rented it, but the rents actually received from the land have been insufficient to take care of interest on the $5,000 obligation mentioned in the trust, taxes on the land, and the insurance premiums on the life insurance policy referred to in the trust agreement.
[1] The trustee made application to the court for authority to foreclose the trust deed; the purpose of the application being, of course, to create a situation in which the life estate of the said Barnett in the real property could be sold under special execution and the proceeds applied upon the indebtedness. Barnett resisted the application. The trial court denied the prayer of the application, and from such order this appeal is prosecuted.
[2] The trust agreement and the trust deed were executed at the same time and as a part of the same transaction. The trust agreement refers to the deed and the deed refers to the trust agreement. In this situation the instruments must be construed together. Seeger v. Manifold, 210 Iowa 683, 231 N.W. 479; Barnett v. Lovejoy, 193 Iowa 678, 186 N.W. 1; Elmore v. Higgins, 20 Iowa 250.
[3] The trust agreement gives to the trustee the right to immediate possession of the premises, the right to rent the farm, and to operate it and to collect its rents. Every right had by Barnett in the land passes under the trust agreement to the trustee, except the right to sell the life estate. The right to alienate the life estate in its entirety is not given to the trustee. The inference to be drawn from the exclusion of this right from the enumeration is that such right was not granted. This court has recognized that the maxim *Page 191 "Expressio unius est exclusio alterius" is applicable in the construction of contracts. Beck Sons v. Economy Coal Co.,149 Iowa 24, 127 N.W. 1109. Applying this maxim in the construction of the trust agreement, we reach the conclusion that it was not the intention of the parties that the trustee should have the right to sell Barnett's life estate for the purpose of discharging the debt.
The trust deed, standing alone, would carry the right to sell the entire life estate upon proper proceedings. But the deed does not stand alone. It contains the recital that the trust agreement contains the full agreement of the parties. Reading the instruments together, we cannot escape the conclusion that the trust deed cannot be foreclosed as a mortgage and the life estate sold under it.
The instruments recite that the sum of $5,000 was due approximately five years after the date of the instrument. As before noted, the tract of land embraced about 185 acres. Out of the proceeds of the operation or renting of this land, interest, taxes, repairs, and the life insurance premiums were required to be paid. It is, of course, a matter of common knowledge that the income from the land would not be sufficient to take care of these various obligations and retire the indebtedness in five years. It is altogether natural to assume that the parties to the instruments were aware of this fact. In this situation the fact that the right of selling the life estate was not specifically given to the trustee is significant, and we think indicative of an intent that the trustee should not have this right.
[4] Regardless of whether the instruments in effect create a trust or are a mortgage, the trustee is only entitled to their enforcement as properly construed; in other words, the trustee has only such rights as are given to him in the instruments. The right to sell the life estate in the property is not given to him by the instruments, and it cannot be afforded to him by the court in the guise of permission to foreclose the trust deed in contravention of the agreement of the parties.
The only question presented by this appeal is whether the court properly denied the trustee authority to foreclose the trust deed. The right to any other remedy is not before the court. The trial court properly denied the prayer of the application, and the order appealed from must be, and it is, affirmed. — Affirmed.
ALBERT, C.J., and EVANS, KINDIG, and DONEGAN, JJ., concur. *Page 192 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430755/ | Sophronia Munsell had lived alone in a cottage in Cedar Rapids in which she had a life estate. Title to the remainder was in her two sons, Marvin of Cedar Rapids and *Page 311
Victor, of Winthrop, Minnesota. Mabel Munsell is the wife of Marvin.
July 9, 1945, Sophronia's money, $10,900, was placed in a joint bank account in the name of Sophronia or Mabel. The printed part of the signature card furnished by the bank recites the account is their joint property and directs the bank to pay to either during their natural lives and to the survivor after the death of either.
Sophronia was in a hospital from October 22 to November 6, 1945. November 7th, Mabel placed her in a nursing home. January 11, 1946, upon application of Mabel, Sophronia was adjudicated insane and ordered confined in the Linn County Home. The report of Dr. Keech shows in part: age eighty-three — advanced arteriosclerosis — senile mental changes — slowly progressive — rational intervals. January 18, 1946, Mabel brought action for her own appointment as guardian of Sophronia's property, alleging her application was made at the request of Victor and Marvin. February 13, 1946, Mabel was appointed guardian and filed her oath and a $2,000 bond with Mutual Surety Company of Iowa as surety.
Apparently, Victor and his wife first learned of Mabel's activities through a letter from Sophronia at the County Home. They wrote Mabel: "Is her mind not clear or what is this county home?" "Do write and tell us all about mother Munsell and just where she is." Mabel replied: "I had mother in a lovely nursing home", but she made so much trouble "they called me and said I would have to take her out." She "even struck at them, they were very good to her." Mabel was advised they would take her in the County Home but "if she gets unruly she would be transferred" to Independence.
A later letter to Mabel indicates Victor's growing concern over his mother's condition and that he did not understand the situation. March 15th, Mabel wrote, "we can't put her in a nursing home as she has spells that she hits or throws things. She got into a real fight at the nursing home."
Victor then went to Cedar Rapids and investigated. March 21, 1946, upon his application, the court cited Mabel to appear for examination, touching the affairs of the guardianship. Mabel promptly executed her resignation. Then she attempted to *Page 312
withdraw the balance in the joint bank account but found payment had been stopped. Mabel's final report was filed April 2d.
Objections filed by the successor guardian alleged Mabel had concealed assets of her ward; that while acting in a confidential and fiduciary relationship toward her ward and when the ward was incompetent Mabel had procured said ward to make the bank deposit in the name of the ward and herself; that Mabel should account for $3,500 withdrawn and appropriated by her prior and subsequent to her appointment and the bank account should be adjudicated the property of Sophronia.
Mabel's reply pleaded an agreement between the bank, Sophronia and Mabel which gave Mabel equal rights with Sophronia to make withdrawals; that Sophronia and Mabel had orally agreed that upon Sophronia's death or if she became disabled from managing or using the account Mabel was to take it, and that upon the appointment of a guardian Sophronia did become unable further to manage or use the account. She pleaded these transactions constituted a gift of the account to her from Sophronia. She pleaded also that during her tenure as guardian she had no assets out of which the prior indebtedness, if any, owed by her to her ward could have been collected. During the trial, by amendment, Mabel alleged her right to the bank account was based upon the printed statement on the signature card and that Mabel was entitled to the $7,500.10 balance because she "made the first demands on said bank for said funds."
The trial court found the evidence failed to show Sophronia was incompetent July 9, 1945, or that a confidential relationship existed between Mabel and Sophronia, but that the actual intention of the parties was that the ownership of the deposit and the sole right to withdraw therefrom should remain in Sophronia during her lifetime, and at her death any remainder should vest in Mabel, if living; Mabel should account for a $500 withdrawal made after her appointment and also for $800 withdrawn February 13, 1946, for the purchase of an automobile to which title was taken in her name. Accordingly it was adjudged Mabel had no interest in the balance of the deposit during Sophronia's lifetime, and judgment was rendered against Mabel and the surety on her bond for $1,219.75. *Page 313
The court found the record showed Mabel's lack of good faith and apparent disregard of her trust, and that she, as a witness, had been rather thoroughly discredited. The record amply supports this finding. Mabel's testimony contains many obvious untruths. In one instance she admitted it was false. It is entitled to little weight.
As early as 1943 Sophronia's rambling speech and lessened care of her person were noticeable. July 9, 1945, she was aged eighty-two years, ten months, was five feet, three inches in height and weighed about eighty-five pounds. She was subject to frequent falls, and walked with difficulty. After April she left her home alone only a few times. Her house fell into a ruinous condition. A neighbor testified that in 1945 she was unable to carry on a connected conversation.
Dr. Hersh testified he treated Sophronia for a hip injury at Mercy Hospital from April 4 to May 24, 1945; advanced arteriosclerosis had interfered with the nourishment of her brain; this was the cause of her frequent falls; she was unable to carry on a conversation on one subject very long; she talked like a child; he considered her then of unsound mind, unable to handle her own affairs and look after her property; she might be able to go to banks, provide some of her own meals, purchase groceries, etc.; her mental condition was variable, sometimes she was able to grasp instructions and sometimes not; her condition was progressive and would gradually become worse. This appraisal of Sophronia's condition in May 1945 differed little from that reported to the Insanity Commission by Dr. Keech in January 1946.
When interrogated concerning the care given Sophronia, Mabel testified:
"I had her in a nursing home. I have had her in the hospitals, and the hospitals would not take care of her any more, and the nursing home called me and refused to take care of her any more because she was mean to the other patients * * *. I even had difficulty getting Mrs. Munsell taken back to Mercy Hospital when she had been treated there as early as April 1945. She had caused too much trouble there for them and they told me not to bring her back there." *Page 314
The record does not show how long before April 1945 Sophronia had caused trouble at Mercy Hospital or the nature thereof but it is a fair inference her conduct deviated substantially from normal conduct. Thereafter she was at St. Lukes Hospital from July 2 to July 6, September 14 and 15, and October 22 to November 6, 1945. Later, while in a nursing home, Sophronia tore the doors from, and broke the side of, a clothes cabinet, damaging it beyond repair.
In justification of an application to repair the house, made by her as guardian, Mabel testified:
"It was in terrible condition. The paper was falling off the walls, and where she had fallen against it there was blood on the walls. * * * She had climbed the stepladder and used a knife to the [kitchen] ceiling. * * * She cut chunks right out of the ceiling."
Some of the windows were broken, screens were out of repair, and Sophronia had put rags in the plumbing.
However, when questioned about Sophronia's competency, Mabel testified Sophronia gradually recovered physically after leaving Mercy Hospital in May 1945; did her own work, etc.; Mabel was there almost every day; Sophronia bought some clothing, ordered part of her groceries by telephone and paid for groceries when they came to the house; she was of very sound mind until she fell down the attic steps in October. "About the 24th day of October her mind was not right then. * * * Just after that fall when she hit her head is what was doing it."
Mabel's husband testified his mother had refused to loan or give him money; she "never let me transact any of her business, she left that up to the wife" who had her love, respect, trust and confidence; in the summer of 1945 she kept her home and telephoned for and paid for her groceries but otherwise depended upon Mabel to pay her bills or go with her; she went to a shoe shop and had her shoes repaired; she seemed to be of sound mind until her fall in October.
A woman who maintained a nursing home testified that in the Fall of 1945 Sophronia asked for a room, but thought $20 *Page 315
a week asked for her care was too high; they visited for four hours and Sophronia appeared to be of sound mind.
Sophronia's assets were $2,200 in preferred stock, a $2,500 interest in a farm, the life estate in her home, household goods, and $10,958 deposited in Merchants National Bank. The bank account had been in the joint names of Sophronia and Mabel for a few months, but Sophronia had changed it to an individual account in her name in June. July 9, 1945, this deposit was withdrawn and carried to Peoples Savings Bank in the form of currency.
The teller in Peoples Savings Bank who handled the opening of the joint bank account was a witness for Mabel. She testified Mabel did most of the talking and Sophronia said a few words; Mabel told the teller they wanted to open a joint account; they signed the signature card; the agreement printed upon it was not read to them.
Mabel's testimony to the contrary (she testified twice and changed her story after a bank teller testified) was admitted over objections that it was a personal transaction with Sophronia concerning which Mabel was an incompetent witness under section622.4, Code of 1946. Mabel testified Sophronia did the talking and Mabel said nothing "only signed my name as I was asked" by Sophronia.
[1] The signing by Mabel and Sophronia of the signature card upon which Mabel bases her claim, was a personal transaction between them. Their acts in connection therewith, as well as their words, were a part of that transaction. Watters v. McGreavy, 111 Iowa 538, 540, 541, 82 N.W. 949; 19 Iowa L. Rev. 533; Enabnit v. Hanson, 228 Iowa 470, 292 N.W. 181; O'Dell v. O'Dell, 238 Iowa 434, 448, 26 N.W.2d 401, 408. Having testified she executed the agreement, Mabel could not avoid the bar of the statute by asserting she said nothing. Her testimony concerning the transaction should not have been admitted nor considered.
Mabel made the following withdrawals from the account: October 15, 1945, $1,000; October 24th, $100; November 7th, $75; December 8th, $100; January 14, 1946, $100; January 28th, $165; February 9th, $600; February 13th, $800; March 5th, $500. *Page 316
At the trial Mabel produced six slips of paper containing orders made and signed by Sophronia for the respective amounts of the first six withdrawals. One states: "Please let Male Munsell have one thousand dolars"; another, "Please let Mable Munsell have one Hundred dollars oblige." The others were similar in form. Mabel testified she secured an order prior to each withdrawal. None of these slips was presented to the bank by Mabel. The record does not show her purpose in procuring their execution by Sophronia but such purpose appears to have been devious because she knew they were unnecessary and that she would not use them. The first three orders were written upon slips torn or cut from the same piece of paper, which would warrant an inference the three were made together about November 7th, the date of the third withdrawal.
[2] I. The trial court found Sophronia was competent July 9, 1945. One reason stated is that Sophronia wrote the withdrawal slips. The record indicates all, or practically all, of these were made after Mabel concedes Sophronia was not of sound mind and two were made at the County Home after she had been adjudicated insane. That Sophronia made these orders might justify an inference she did not understand the form of her deposit was such that Mabel could appropriate it without them. However, it would not tend to show she was competent in July 1945. Likewise, the form and contents of a letter Sophronia wrote her guardian in 1946 after she was adjudicated insane would not in this case support a finding she was competent in July 1945. Nor would the managing of her own household, as the evidence shows it was managed, afford much support. The test is whether she had sufficient capacity to enable her to understand and comprehend in a reasonable manner the nature and consequences of the questioned business transaction. Brewster v. Brewster,194 Iowa 803, 188 N.W. 672.
The other reason stated — that Sophronia once bargained for her care at a nursing home — tends to support the finding. Reference has already been made to medical testimony and other evidence Sophronia was incompetent. However, in view of our conclusions hereinafter stated, we need not determine whether *Page 317
there was substantial evidence to support the finding of competency.
[3] II. The successor guardian also charged in substance that the transfer of Sophronia's money into the joint account, which the daughter-in-law Mabel claims constituted a gift to her, was procured by Mabel while she was the dominating person in a fiduciary and confidential relation between Sophronia and herself. It is the rule that every transaction between such parties, by which the superior party obtains a possible benefit, is presumed invalid and the burden is upon such party to rebut the presumption of overreaching on his part, and to affirmatively establish that in the transactions in question he took no advantage of the inferior party but that the latter acted voluntarily with freedom, intelligence and a full knowledge of all the facts. Merritt v. Easterly, 226 Iowa 514, 284 N.W. 397; Curtis v. Armagast, 158 Iowa 507, 138 N.W. 873.
This rule is recognized in the Findings, Conclusions and Rulings of the trial court. However, the court found the evidence failed to show the existence of such relationship or that Mabel was the dominant party. We do not think anything in the record supports these findings.
It is true Mabel did many things for Sophronia as a friend, daughter-in-law and associate and also acted as an errand woman. She took Sophronia shopping and "was holding on to her to assist her in walking." She was at Sophronia's home almost every day and doubtless assisted there. Conduct of this nature is frequently present in an informal fiduciary relationship. It does not tend to indicate the absence of such relationship or that Mabel was not the dominant party.
In her sworn application for appointment Mabel stated:
"That this plaintiff has for several years last past looked after the affairs of said defendant by and with her consent and at her request, and has made arrangements from time to time for her hospitalization and care, and has looked after payment of her bills."
Mabel testified, my husband "wanted me to be appointed [guardian] because I had taken care of her affairs for so long for her." *Page 318
[4] When hospitals refused Sophronia readmission because of her past conduct, Mabel arranged for her placement elsewhere. Mabel had access to Sophronia's safe-deposit box in the bank. The bank teller, who was the only competent witness to the joint deposit transaction, testified it was Mabel who instructed her they wanted a joint account. Apparently Mabel was thereafter able to secure from Sophronia signed orders to draw any amounts Mabel desired. Sophronia made no withdrawals other than $50 in March 1946, after Victor went to Cedar Rapids and investigated. Mabel's husband testified Sophronia left the transaction of her business "up to" Mabel who had her trust and confidence. Other circumstances and evidence accord with the foregoing. There was no evidence to the contrary. The record requires the conclusion there was a fiduciary relationship in which Mabel was the dominant party.
Johnson v. Johnson, 196 Iowa 343, 348, 191 N.W. 353, 355, states:
"It is a rare case where the dominant individual in a fiduciary relation can sustain a gift to himself by the one who is dependent upon him. Whereas the defendant had assisted her husband in his few matters of business before his illness, she had now, by his illness, become his sole dependence. If someone else had sought to obtain a conveyance of his property, she would have been his independent adviser, and would have protected him against ill advised action. Inasmuch as she became the beneficiary of this transaction, he was necessarily deprived of her help and advice. In such a case, equity inquires, Who was his helper? Did he have any? Did he have independent advice, legal or otherwise? If his wish had been to refuse the gift, was there anyone to stand for him and to put forward the refusal? It is incumbent upon the defendant to make some answer to these questions."
There was no evidence to rebut the presumption of overreaching which arose out of the benefit obtained by Mabel from Sophronia from the transaction. As we understand the record, the trial court so found. It follows that the joint deposit agreement and alleged gift to Mabel were invalid, that the bank *Page 319
account was the property of Sophronia, and Mabel had no right nor interest therein.
[5] III. Mabel converted to her own use approximately $3,000 of the $3,450 withdrawn by her. The exact amount was not determined. In the accounting phase of the case the chief concern of all parties appears to have been the amount of the liability of the surety on her bond. Concerning the $1,000 Mabel withdrew October 15, 1945, she testified she went with it to Sophronia's home and last saw it in Sophronia's hand about ten or fifteen minutes after she withdrew it, and had not since seen it.
This testimony merely created an inference of payment and was insufficient to support a finding of payment. Slezak v. Krisinger, 202 Iowa 422, 210 N.W. 436. It is hardly necessary to point to the improbability of Mabel's story about the $1,000, under the circumstances of this case. Furthermore, she had written Victor she was asking Sophronia for $1,000 for herself and husband and $1,000 for Victor. Later she wrote Victor that he would not get his $1,000 because Sophronia could not afford it. Also bearing upon the credibility of her testimony that she last saw the $1,000 in Sophronia's hand is her similar testimony concerning a $100 withdrawal. Later she testified the $100 was used by Mabel to pay Sophronia's bills and produced account sheets (of doubtful authenticity) to so show.
[6, 7] However, she pleaded insolvency from and after appointment as guardian. The trial court found that on and after February 13, 1946, she was insolvent and had no property over and above her debts from which, with reasonable diligence, she could have recouped or recovered for Sophronia's estate the amounts owed it for Mabel's withdrawals prior to her appointment. Without detailed discussion we will say there was some evidence she had no nonexempt property (aside from withdrawals hereinafter considered) and could not have recouped any part of the $1,000 for the estate. Under the rule referred to by the trial court and hereinafter considered, her liability for this $1,000 was personal and not as guardian. It may be well to observe that Mabel's financial statement made to the surety company when she applied for her bond as guardian, and the testimony and report of its agent who prepared *Page 320
the same should not have been excluded as confidential communications. That the agent for the surety company was also Mabel's attorney would not make such disclosures confidential. See 70 C.J., Witnesses, section 550. Moreover, communications to an attorney which a client consents be transmitted to others are not deemed privileged. Lewis v. Beh, 206 Iowa 281, 218 N.W. 944, 220 N.W. 126.
[8] Sureties on the bond of a guardian, executed after he has converted property of his ward to his own use, are liable for the defalcation, if, after the bond is executed, he continues solvent, so that he could have restored the fund to the trust, which he failed to do. McEwen v. Fletcher, 164 Iowa 517, 146 N.W. 1, Ann. Cas. 1916D, 631; In re Estate of Windhorst, 227 Iowa 808, 288 N.W. 892; Knepper v. Glenn, 73 Iowa 730, 36 N.W. 763; 39 C.J.S., Guardian and Ward, section 200d; 21 Am. Jur., Executors and Administrators, section 195.
[9] "The duty imposed by law for him to protect his wards from loss by neglect to exercise reasonable diligence to collect debts owing to them, rested more heavily upon him when he was their debtor by his own wrongful act than it would if he had merely failed to collect a debt from some third party." Aetna Indemnity Co. v. State for use of Gillaspy, 101 Miss. 703, 721, 57 So. 980, 982, 39 L.R.A., N.S., 961.
[10] The sureties are, of course, liable for the guardian's defalcation after the bond takes effect, irrespective of the guardian's solvency. They may be held liable also for the guardian's failure to exercise reasonable diligence to collect debts owed the ward by others as well as those owed by the guardian himself.
[11] IV. Mabel's bond was filed and approved February 13, 1946. March 5th she drew and converted $500. The court properly charged Mabel and her surety with this amount. Mabel as guardian and her surety were charged also with $800 withdrawn February 13th and used to purchase an automobile. There was also a charge of $18.75 on another item. These charges totaled $1,318.75. After allowing certain credits the court found Mabel, in her capacity as guardian, was accountable for *Page 321
$1,219.75 and required the surety to pay that amount. There is no complaint as to the items involved in this computation.
[12] However, the successor guardian contends various additional items should have been surcharged. Among these is $88.30, which was part of the withdrawal made January 28th. This was used to pay an automobile repair bill February 16th. Hence it was in Mabel's possession after she became guardian and she was liable for it as guardian. Another item is $275 which Mabel gave or loaned her husband. This was part of the $600 she drew February 9th. The husband knew the source of the money he received. The record indicates he was solvent. Mabel neglected to exercise reasonable diligence to collect this $275 for the estate of her ward. Hence her account should have been surcharged therewith. A third item is $50, from the February 9th withdrawal, paid by Mabel on a mortgage on her home. Mabel held all the money converted by her as trustee of a constructive trust. Although the homestead was exempt the trust attached to it for the $50 payment. Warsco v. Oshkosh Sav. Tr. Co., 190 Wis. 87, 208 N.W. 886, 47 A.L.R. 366; American Ry. Exp. Co. v. Houle, 169 Minn. 209,210 N.W. 889, 48 A.L.R. 1266. Therefore, it was a collectible item for which the bond was liable.
[13] In addition to the $1,219.75, the foregoing items, aggregating $413.30, should have been surcharged to the account of the guardian and her bond and the liability thereon for money converted from Sophronia's bank account should have been fixed at $1,633.05, together with interest thereon from April 2, 1946. See Ellyson v. Lord, 124 Iowa 125, 141, 99 N.W. 582.
[14] V. The surety contends it was not a party to the proceedings and the court was without jurisdiction to enter judgment against it on the bond. The record shows it was represented in the action by its attorneys. One of them testified:
"Realizing that what takes place here is in many instances res adjudicata on the matter of the bond, I am assisting in the defense in this action and am employed in so doing by the Mutual Surety Company of Iowa." *Page 322
The surety company was interested in all phases of the accounting and its attorneys actively participated therein. However, it was the only party financially interested in establishing the insolvency pleaded by Mabel. Mabel was indebted to Sophronia's estate for all the money converted by her, irrespective of her insolvency. It is obvious the defense of insolvency was made for and by the surety.
The surety was not a necessary party to the accounting. See In re Estate of Davie, 224 Iowa 1177, 278 N.W. 616. Nor did the bond or any contract require it to conduct Mabel's defense or assist therein. It voluntarily came into the case and participated in the trial, although not in its own name. The appeal was conducted by its attorneys. Hoskins v. Hotel Randolph Co., 203 Iowa 1152, 1159, 211 N.W. 423, 427, 65 A.L.R. 1125, states:
"The principal question argued is whether the Otis Elevator Company was in court or a party to any issue involving its liability. It was in fact in court, though not in its own name. In substance, it was a party. It had its day in court upon every question litigated. It had the right of appeal. It was bound by the judgment, and cannot relitigate the questions determined by it."
The quoted language is here applicable. We conclude the rendering of judgment against the surety was not error.
Upon the appeal of the successor guardian the cause is remanded for the entry of modification of the judgment in conformity herewith. Upon the cross-appeal the judgment is affirmed. All costs on appeal are taxed to the cross-appellants. — Modified, affirmed and remanded.
MULRONEY, C.J., and BLISS, HALE, GARFIELD, MANTZ, SMITH, and HAYS, JJ., concur. *Page 323 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430757/ | I concur with Chief Justice Morling and Justice Kindig that the instant case should not be reversed by reason of the rulings on the fingerprint evidence. The evidence in this case clearly warrants a verdict of guilty, as found by the jury. The majority opinion is based on purely technical grounds.
The defendant was caught in the act upon which the indictment is predicated. The jury said "guilty" upon the trial. I will, however, confine my comments to the fingerprint evidence. One duly qualified witness for the State, in explaining the nature and character of fingerprints, testified, without objection:
"Fingerprints are generally used for identification. I discovered prints on the glass [which came from the window smashed by the party breaking and entering, the store], and helped take the fingerprints of defendant after his arrest [which was at the scene of the crime, and at the time of its commission]. I found fingerprints on one of these pieces of glass. One of the fingerprints I photographed, developed, and enlarged. [This photograph was in evidence without objection, as was the enlarged photograph of the fingerprint of this defendant.] Q. Did you make comparison of that print [on the glass] and of the enlargement of that print with the fingerprint you took from the defendant, Clem Steffen? A. Yes."
This witness further testified, and pointed out to the jury *Page 204
the points that are used and recognized by fingerprint experts in identification work, and without objection. He testified:
"The point marked No. 1 on that [photograph of fingerprint on glass] in red ink is the line ending at the end of the line marked 1. It indicates the end of one of the ridges of that man's finger. In other words, that particular ridge in his finger will show here."
The witness then specifically pointed out the similarities on the photograph of defendant's finger that correspond with those found on the glass. After pointing out the lines of similarity which constituted the basis of comparison between the fingerprint on the glass and the defendant's own fingerprint, — and there were 21 points of similarity explained to the jury, — he was asked:
"Q. Now, you may examine Exhibit 4, the glass, your comparison of that print found on that particular glass, with the fingerprint taken from the left, index finger of Steffen. I will ask you to state whether or not you are able to say whether or not those two prints, the one on the glass and the one you took from the finger of Clem Steffen, were both made by the same finger. (Objected to as incompetent, immaterial, and irrelevant, calling for an ultimate fact to be determined by the jury.)"
The witness did answer in the affirmative, that he was "able to say," and in answer to the question "what is the fact?" he made answer: "They are the same."
In the first place, whether the fingerprints were the same is not the ultimate fact in this case. The ultimate fact is whether or not the defendant was guilty of the crime charged, and the evidence relative to fingerprints was a mere item of evidence. The jury had before it the photographs, which were fully explained by the witness, who was thoroughly competent to explain the meaning of fingerprints and fingerprinting. It is well settled, both in England and in this country, that evidence of the correspondence of fingerprint impressions for the purpose of identification, when introduced by qualified fingerprint experts, is admissible in a criminal case, and that the weight and value of such testimony is always viewed as a question for the *Page 205
jury. Moon v. State, 22 Ariz. 418 (198 P. 288). In the Moon
case, supra, the expert fingerprint witness was permitted by counsel on behalf of both defendant and State and by the court to make a test, under similar conditions, "of pairing the fingerprints of the 12 jurymen, which consisted of taking two prints in duplicate, on separate cardboards, of the fingerprints of the 12 jurymen, in the absence of the expert, who, upon returning to the room, in the presence of the court and jury, developed the fingerprints of the jurymen by means of fingerprint powder, and correctly paired the cards off, by comparing the fingerprints as developed." Fingerprinting is based on the law of nature, or upon a universally recognized physical fact. All authorities on the subject recognize that the fingerprints of no two persons are the same. In all of the thousands of fingerprints now in the repositories of the United States army, United States navy, insurance companies, or in the bureaus of investigation of every city throughout the entire world, there have never been found the fingerprints of any two persons exactly the same. Nature gave each person certain characteristic ridges on his fingers, and these ridges are permanent until death and disintegration of the connective tissue containing the papillary ridges which form the basis for the fingerprint identification. This is well recognized by scientific authority, and this authority is recognized by courts, and should be recognized, in the absence of any claimed fabrication or forgery. It is an everyday occurrence that fingerprints of a person accused of crime are taken, as part of the system of the registration of the particular police department, and it is the quite universal rule of construction by our courts that such system of registration is not subject to the challenge that the accused is furnishing evidence against himself. See People v. Sallow,100 Misc. Rep. 447 (165 N.Y. Supp. 915). Fingerprinting is a science. Fingerprints are subject to classification. Fingerprints are universally recognized as a means of identification throughout the world. A fingerprint is not a signature, and is in an entirely different category. In the instant case, there is no question raised as to the genuineness of the fingerprints in question, or of the photographic reproductions. As said in Peoplev. Jennings (Feb. 1, 1911), 252 Ill. 534 (96 N.E. 1077):
"* * * this method of identification [fingerprints] is in *Page 206
such general and common use that the courts cannot refuse to take judicial cognizance of it. Such evidence may or may not be of independent strength, but it is admissible, the same as other proof, as tending to make out a case."
Fingerprints are simply a connecting link between the man and the crime, and as pointed out in the Jennings case, supra, another person than Jennings might have had the same kind of sand on his shoes, might have carried a newly discharged revolver, but no other man could make Jennings's fingerprints. It is said by Chief Justice Griffith of the High Court of Australia (1912) inParker v. The King, 14 Commw. Law Rep. (Australia) 681 (3 British Ruling Cases 68):
"A fingerprint is, therefore, in reality an unforgeable signature. That is now recognized in a large part of the world * * *. It is certainly now generally recognized in England and other parts of the British Dominions."
It is also said in that decision:
"Signatures [fingerprints] have been accepted as evidence of identity as long as they have been used. The fact of the individuality of the corrugations of the skin on the fingers of the human hand is now so generally recognized as to require very little, if any, evidence of it, although it seems to be still the practice to offer some expert evidence on the point."
It is judicially recognized that, in order to warrant the conclusion herein indicated, the fingerprints corresponding to those of the accused must have been found in the place where the crime was committed, and under such evidence that the fingerprints could not have been impressed at any other time. Such is the fact in this case. The window glass was broken at the time of the commission of the crime charged, and the fingerprints were taken from a piece of glass of the smashed window at such time. Later, the particular piece of glass was fitted with the other pieces of the broken glass, and the windowpane broken was matched in its entirety. In any case of identification, in the last analysis, whether of a person or thing, opinion evidence is involved, to a certain extent; but such evidence, under many circumstances, becomes a question of fact for the consideration of the jury, along with all other evidence. So here, *Page 207
the fingerprint characteristics identify the person more definitely than the facial characteristics of the individual would do. It is a matter for the jury, and it is for the jury to give such weight to such testimony as the jury may determine. It is simply a link in the chain of evidence.
In my judgment, the fingerprint evidence in question was competent and admissible, and the answer given by the witness on this subject properly went to the jury, along with the photographs to which reference has been made herein. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430758/ | William C. and Hattie Wilson, husband and wife, on June 1, 1925, borrowed from the Persia Savings Bank, the plaintiff-appellant, $3,300. For the purposes of that loan, the borrowers executed two promissory notes payable to the bank. One, for $600, became due June 1, 1926, and the other, for $2,700, matured June 1, 1928. These notes were secured by a second mortgage on certain real estate. This second mortgage was subject to a first mortgage of $7,500. Apparently the payment on the $600 note was extended so that both notes matured on June 1, 1928. A new note for $3,300, dated June 1, 1928, was executed by William C., Hattie, and J.E. Wilson for the purpose of renewing the indebtedness on the two old notes which, as before explained, had matured but had not been paid. Such last-named note was also secured by a new second mortgage upon the same land subject to the aforesaid first mortgage.
William C. and Hattie Wilson signed this last-named note October 30, 1928. There is a dispute, however, concerning the date on which J.E. Wilson affixed his signature thereto. The appellant claims that J.E. Wilson executed the note November 7, 1930. It is urged by the appellee in his answer, however, that J.E. Wilson did not sign the note on that date, but rather placed his name thereon after the transaction between the appellant and William C. and Hattie Wilson had been fully closed. Hence the appellee contends that there was no consideration for the signature of J.E. Wilson. J.E. Wilson died on November 10, 1928, and E.O. Wilson became the duly appointed, qualified, and acting administrator of the J.E. Wilson estate. Said administrator *Page 995
is the defendant-appellee in the present controversy. When the last-named note was filed by the appellant as a demand against the estate, the appellee refused to pay the same on the theory that there was no consideration for the signature of J.E. Wilson thereon.
By way of amendment to its petition, the appellant specifically pleaded a particular consideration as follows: That when the two original notes, aggregating $3,300, became due the appellant refused to extend the time of payment thereof unless additional security were given. Then it is alleged by the appellant that thereafter "the makers of said notes (William C. and Hattie Wilson) advised (the appellant) that J.E. Wilson would be in the town of Persia * * * within a few days and that he would sign as security for the said William C. Wilson and Hattie Wilson; that thereupon the note and mortgage herein sued upon (the renewal note and the mortgage securing the same) was signed and acknowledged by the makers and deposited at said bank to await the execution of the note by the said J.E. Wilson when he arrived; that thereafter and on the 7th day of November, (1928), the said J.W. Wilson called at said bank in company with William C. Wilson and in consideration of claimant extending the time of payment of said debt signed the note in suit; that thereupon the two prior notes held by said bank were withdrawn as bills receivable of said bank and the note in suit was delivered to claimant and accepted by claimant in payment thereof."
Upon the issues thus raised by the petition and the answer, the cause was submitted to the jury and that body returned a verdict for the appellee. Accordingly, a judgment was entered and the appellant appeals.
[1] I. At the outset, it is contended by the appellant that the district court erred in failing to sustain its motion for a judgment notwithstanding the verdict. Underlying this contention is the thought that appellee's answer did not plead a defense.
No defense was pleaded, the appellant contends, because the answer simply stated as a mere conclusion that there was no consideration. See Benton v. Morningside College, 202 Iowa 15. So, the appellant asserts that the district court should have sustained its motion for a judgment notwithstanding the verdict. *Page 996
In response to the appellant's contention, the appellee argues that the former did not attack the answer by motion or demurrer, but went to trial on the apparent issues raised by the answer, and therefore waived its right to insist upon the motion for judgment notwithstanding the verdict. Section 11145 of the 1931 and 1927 Codes, provides:
"No pleading shall be held sufficient on account of a failure to demur thereto."
Following that section, are Sections 11150 and 11554 of the same Codes. Section 11150 contains the following provision:
"When any petition, cross-petition, or counterclaim fails to state a cause of action, or any answer or reply a defense, advantage may be taken thereof by a motion in arrest of judgment, numbering and specifying the grounds thereof."
Section 11554 continues with the following statement:
"Either party may file a motion in arrest of judgment, where the pleadings of the prevailing party wholly fail to state a cause of action or a complete defense, and a verdict has been returned in his favor."
Obviously, under the foregoing legislation, the mere failure to demur is not in itself sufficient to cause the party having a right thus to plead, to forfeit his privilege, otherwise possessed, of filing a motion for a judgment notwithstanding a verdict. See Millard v. Curtis, 208 Iowa 682.
[2] Nevertheless, in the case at bar, the appellant has no just ground for complaint because the district court overruled its motion for a judgment notwithstanding the verdict. As said in Eilers v. Frieling, 211 Iowa 841 (local citation 844):
"While, perhaps, the (answer) * * * may not be considered a model, and could have been more specific, yet it cannot be said that it wholly fails to state a defense, within the purview of the provisions of Section 11554 of the Code * * *."
It is to be remembered that the appellant in its petition stated a specific and certain consideration. Because the petition contained a statement of a definite and certain consideration, the law will not presume that there was any other or different consideration. Beh v. Van Ness, 190 Iowa 151 (local citation, 155). *Page 997
Likewise, because the appellant pleaded a definite and certain consideration, it cannot now rely upon some other or different consideration. Blain v. Johnson, 201 Iowa 961 (local citation 966-7).
The answer was directed at that petition thus limited and confined. When so directing his answer, the appellee stated therein that the note in question was not signed on the date claimed in the petition, but at a later time after the instrument had been executed and delivered by William C. and Hattie Wilson. A fair construction of the answer is that because of the fact just related the signature of J.E. Wilson on the note was without consideration. Under the circumstances, and in view of the specific consideration pleaded by the appellant, the answer was sufficient to raise the question of no consideration. Thus the answer was interpreted by the appellant itself during the trial. Immediately after the trial commenced, the appellant sought an admission from the appellee that the only issue raised in the answer was one of no consideration. At other instances during the trial, the appellant also indicated that the issue of no consideration was before the court.
Finally, in a motion for a directed verdict, the appellant asked such relief on the theory that the issue of no consideration had not been proven. Consequently it is apparent that the appellant itself interpreted the answer during the trial as sufficient to raise the defense of no consideration. Therefore, under all the circumstances the district court did not err in overruling the motion for a judgment notwithstanding a verdict.
[3] II. Assuming the adequacy of the answer, the appellant declares, nevertheless, that the evidence was not sufficient to sustain that pleading.
Again the appellant's contention is without merit. Witnesses for the appellant testified that William C. and Hattie Wilson signed the last-named note and mortgage on or about October 30, 1928, but that J.E. Wilson did not affix his signature thereto until November 7, thereafter. This delay on the part of J.E. Wilson, the appellant maintains, was contemplated by the agreement between the parties. On the other hand, the appellee's witnesses declared that no agreement or understanding existed under which J.E. Wilson's signature was to be placed upon the note. Both William C. and Hattie Wilson testified *Page 998
to this. They said that neither of them had asked J.E. Wilson to sign the note, and they did not know that he was going to do so. So, too, these witnesses declared that neither of them heard any officer or employee of the appellant bank ask J.E. Wilson to sign the note. Furthermore, these witnesses said that the appellant did not demand the signature of J.E. Wilson on the note. Some demand for additional security, these witnesses say, was originally made by the appellant. In response thereto, William C. Wilson declares that he refused any additional security and told the officers of the bank that the second mortgage held by the appellant was sufficient security for the indebtedness. Appellant, according to the appellee, finally abandoned its demand for further, and accepted the original, security. According to the appellee's testimony, then, there was no agreement or understanding that J.E. Wilson should sign his name to the note. Moreover, the Wilsons testify that they signed and delivered the note to the appellant and that the same was accepted without additional security. That was before J.E. Wilson had signed the note. Consequently, under the issues raised, there is a conflict of evidence and the jury's verdict thereon cannot be interfered with by this court.
[4] But it is said by appellant that although there was an issue on the disputed facts, nevertheless the record does reveal a consideration about which there is no controversy. Apparently it is appellant's thought at this place that if J.E. Wilson signed the note without the knowledge or consent of William C. and Hattie Wilson, that thereby the latter were released as makers of the instrument. Such release of the original makers, it is claimed, would amount to a consideration for J.E. Wilson's signature.
"A party who signs a note after its execution, delivery, and acceptance is not liable to the payee when there was no consideration for such signing, either in the form (1) of some advantage to some of the signers, or (2) of some disadvantage to the payee, or (3) of an agreement, at the time of the original execution and delivery, that the note would be so signed." Conner v. Henry, 205 Iowa 95.
See, also, Nolte v. Nolte, 211 Iowa, 1289 (local citation, 1293). The following cases are to the same effect: Hiatt v. *Page 999
Hamilton, 215 Iowa —; Northern Trust Savings Bank v. Ellwood,200 Iowa 1213; Merchants State Bank v. Roline, 200 Iowa 1059.
There is, nevertheless, an apparent exception to the foregoing rule. If the party thus placing his belated signature upon the note does so under such circumstances as to relieve the makers, he may, under proper conditions, become liable himself. In such event the consideration is the release of the other parties. This principle is "placed upon the ground that the addition of another name to a note is a material alteration, which will discharge the original parties not consenting thereto, and without inquiry whether the alteration is injurious or beneficial to them, and that the person so executing the note makes it his own, and that it is, in effect, the execution of a new note." Rhoades v. Leach,93 Iowa 337 (local citation 339).
To the same effect see Dickerman v. Miner, 43 Iowa 508; Briggs v. Downing Matthews, 48 Iowa 550; Blain v. Johnson (201 Iowa 961), supra; Fairley v. Falcon, 204 Iowa 290. See, also, Schram v. Johnson, 208 Iowa 222.
These principles of law are clearly set forth in the cases above cited, but the appellant is not in a position to avail itself thereof because of its limited pleading. As before explained, the appellant specifically pleaded a definite consideration. Therefore, it must rely upon that consideration and none other. Beh v. Van Ness (190 Iowa 151), supra; Blain v. Johnson (201 Iowa 961), supra. The issue, then, now contended for by the appellant because of the pleadings is eliminated from the record.
Under these circumstances, the district court properly submitted to the jury the only issue raised by the pleadings.
[5] III. A complaint is also made because the district court wrongfully submitted to the jury an alleged issue as to whether the note was signed by J.E. Wilson on November 7, 1928. That assignment of error, however, is not well based upon the instructions actually given to the jury.
It is apparent that the district court did not submit that question to the jury as an issue. As before explained, the appellant in its petition pleaded that the note was signed by J.W. Wilson on the 7th day of November, 1928. Upon that date, therefore, the appellant declares the note was fully executed and delivered. To refute the claim of consideration for the *Page 1000
signature of J.E. Wilson, the appellee pleaded that J.E. Wilson did not sign the note on November 7, as claimed, but on a later date. This later date, according to appellee's pleading, was after the note had been fully executed and the transaction completed. Hence, it is said by appellee there was no consideration for the signature of J.E. Wilson.
When instructing the jury, the district court simply stated these contentions and submitted the issue as to whether the note was signed by J.E. Wilson before its delivery to the appellant or at a later date after the original transaction between appellant, Hattie, and William C. Wilson had been fully closed. There is no error at this juncture.
IV. In the same connection, it is argued that the date on which J.E. Wilson signed the note is immaterial. Continuing its argument on this proposition, the appellant declares that when J.E. Wilson signed the note the old notes were taken from the bills receivable file and the new note placed therein. Such manipulation, the appellant concludes, was the material event in fixing the consideration, and the date of November 7 consequently became immaterial.
Undoubtedly the actual, as distinguished from the nominal, date is the essential time; but the appellant pleaded November 7 as the date, and its testimony indicates that J.E. Wilson signed at that time. Apparently it is appellant's claim, according to the argument and the evidence, that J.E. Wilson not only signed the last named note on November 7, 1928, but that upon that date the bank took the original notes from the bills receivable, and placed the last-named instrument therein as a substitute. Manifestly the jury could not be misled, and the court's instruction is in strict accord with the pleading and the evidence. Therein the district court submitted the matter of consideration strictly in harmony with the issue raised by appellant's petition and the appellee's answer.
No error appears, therefore.
[6] V. An additional complaint is made because the district court erroneously ruled on the admission of certain evidence.
It appears that the appellee sought to prove the value of the real estate security for the note in question. This evidence was objected to by appellant upon the theory that the same was *Page 1001
incompetent, immaterial, and irrelevant. According to the appellant's argument, the evidence would be immaterial and irrelevant for the reason that the question of security was not before the jury. The appellant claims that it had the legal right to sue upon the note without foreclosing the mortgage. Consequently the appellant declares that the evidence offered concerning the value of the security was entirely immaterial and irrelevant. For the purposes of this discussion, it will be conceded that the appellant had the legal right to sue on the note without foreclosing the mortgage. Nevertheless, that principle does not necessarily exclude the evidence concerning the value of the real estate. Attention is here called to the fact that the appellant claimed it refused to accept the note in question as a renewal of the two old notes unless William C. and Hattie Wilson furnished additional security. In compliance with that demand, the appellant says that William C. and Hattie Wilson procured the signature of J.E. Wilson. To rebut appellant's claim, the appellee produced William C. Wilson as a witness and he testified that demand for additional security was refused because of the sufficiency of the existing security. It is said, therefore, by the appellee that the appellant recognized the sufficiency of the original security, and accepted the note of William C. and Hattie Wilson protected thereby. When attempting to prove that the appellant thus waived its demand for additional security and accepted the note of William C. and Hattie Wilson with the original security, the appellee sought to show that such original security was ample. According to the evidence offered, this security was ample.
Obviously the reason for offering the evidence was to corroborate appellee's claim concerning the transaction and indicate that the appellant likely waived its demand for the additional security because of the sufficiency of the original security.
Due to that fact and the others above related, the appellee's testimony would be corroborated. Under this theory it is manifest that the evidence was admissible and the district court properly admitted it.
Other matters are argued, but they are not of sufficient importance to change the result. *Page 1002
Wherefore, the judgment of the district court must be, and hereby is, affirmed. — Affirmed.
WAGNER, C.J., and EVANS, MORLING, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430666/ | Defendants, husband and wife, own and operate a farm of over 3,000 acres in Cerro Gordo county. J.E. Risden was the farm manager, with general supervision of the work. Plaintiff, a farm hand then 21 or 22, commenced working for defendants about March 1, 1940. On March 25, 1940, a circular saw was attached, by means of a belt, to an Oliver farm tractor, for the purpose of sawing wood. Gilbertson and Reindl, two other employees, were engaged in the sawing. Risden, the manager, directed plaintiff to assist them and to report to Gilbertson, who would tell him what to do. Plaintiff went to Gilbertson, who directed him to bring the wood from the pile to the saw. Reindl had put the tractor and saw in place for the work, set the belt, started the power, and adjusted the speed of the tractor engine and saw. This was all done and Gilbertson and Reindl had started sawing when plaintiff arrived.
After two and one half to three hours they stopped sawing and Gilbertson said that would be all. It is plaintiff's claim and he testified that Gilbertson then directed him to shut off the power on the tractor; that the other two men started filling the trailer with wood; that plaintiff walked around to the back of the tractor, shut off the power, and as he was pulling his hand back his mitten caught in the power take-off shaft, which was still revolving very fast, injuring his right hand and arm.
The power take-off shaft protruded from the rear of the tractor 44 inches above the ground and 12 inches below the seat. The exposed part was 3 1/2 inches long and 1 3/8 inches in diameter, with six notches or grooves in it. The shaft is for the purpose of running power machinery. When a corn picker, grain binder, or mower is hooked onto the shaft, motive power is transferred from the tractor engine to the machinery. On the day in question the shaft was not in use. Power was transmitted to the saw by means of a belt placed over a pulley wheel, about 18 inches in diameter, to the front and on the right side of the tractor.
It is plaintiff's claim that defendants were negligent in not having a guard or shield over the exposed shaft with which he came in contact. There is testimony that there is available from the Oliver tractor company a shield or guard, shaped somewhat *Page 1019
like a deep cup or an auto hub cap, to cover the shaft. Plaintiff testified that after he was injured he saw such a shield in the tool shop on defendants' farm and that it would fit over the exposed part of the shaft. There is nothing to dispute this testimony. Both Reindl and Gilbertson testified they never saw the shaft covered by a shield. There is no testimony that defendants kept the shaft covered at any time before the day of plaintiff's injury. The tractor was purchased in 1937 or 1938 from the Oliver establishment in Mason City. A service man for the company testified that the tractors sold at Mason City do not come equipped with the power take-off shaft but that they must be bought separately.
Plaintiff testified without contradiction that he had never used an Oliver tractor, that he had driven another make of tractor in the field and used it with a belt pulley before he worked for defendants, and that he had not helped saw wood for defendants before the day in question. On March 25th the tractor was headed west, the power take-off shaft protruding to the east. The saw was in front and west of the tractor some 15 to 20 feet. The pulley belt extended to the saw from the north or right side of the tractor. The pile of uncut wood was about 20 feet north of the saw. The trailer near which the cut wood was piled was 6 or 8 feet south of the saw. During the entire work of sawing, plaintiff was carrying the uncut wood from the pile to the saw which Gilbertson was feeding. Reindl was taking the cut wood from the saw to the pile near the trailer. There is no testimony that plaintiff went to the rear of the tractor at any time before he claims to have attempted, pursuant to Gilbertson's direction, to shut off the power.
The jury returned a verdict for plaintiff of $1,312. From the judgment entered thereon and the overruling of their motion for new trial and exceptions to instructions, defendants have appealed.
[1] I. Appellants first complain that the court failed to submit their pleaded defense of assumption of risk. The sole ground of negligence alleged by appellee or submitted to the jury was failure to provide reasonably safe machinery in negligently failing to furnish a guard for the shaft in question. Unless appellants were negligent in this respect, appellee was *Page 1020
not entitled to recover. The court so instructed. If appellants were negligent in the respect charged, appellee did not assume the risk therefrom by continuing in the work unless in the usual course of his employment it was his duty to remedy the defect, and even if such were his duty, he assumed no risk therefrom unless the danger was imminent so that a reasonably prudent person would not continue in the work. This is the plain provision of section 1495, Code, 1939, as construed in Correll v. Williams Hunting Co., 173 Iowa 571, 155 N.W. 982, Ann. Cas. 1918A, 117; Bell v. Brown, 214 Iowa, 370, 239 N.W. 785; Lang v. Hedrick, 229 Iowa 766, 773, 295 N.W. 107, 111.
Appellants do not contend that appellee in the ordinary course of his employment was under any duty to remedy the alleged defect in the tractor. It conclusively appears he was under no such duty. The court therefore properly withdrew from the jury the defense of assumption of risk.
In addition to the fact that appellee was under no duty to remedy the alleged defect, we doubt if the evidence would warrant a finding that the danger from the unguarded shaft was so imminent that a reasonably prudent person would not have continued the work. Assumption of risk was an affirmative defense. The burden of proof on this issue rested upon appellants. There is no evidence that appellee had any previous experience with this or a similar tractor or that he knew of the presence of this unguarded part. His work during the sawing operations did not take him where he could see this shaft. There is no evidence he did see it before coming in contact with it. Since appellee was under no duty to repair, however, we need not determine whether there was imminent danger from the alleged defective machinery.
[2] II. Appellants' answer alleged that appellee was guilty of contributory negligence which bars recovery or is in mitigation of damages. Appellee's petition did not allege freedom from contributory negligence. The court instructed the jury to consider this defense only in mitigation of damages. This was proper. Section 11210, Code, 1939; Oestereich v. Leslie, 212 Iowa 105, 113, 114, 234 N.W. 229, and cases cited; Morse v. Century Cab Co., 230 Iowa 443, 448, 297 N.W. 877, 880, 134 *Page 1021
A.L.R. 635; Band v. Reinke, 230 Iowa 515, 517, 518, 298 N.W. 865, 867.
Appellants assert, however, that the instructions do not define contributory negligence. The court properly defined negligence and ordinary care and told the jury, in effect, that contributory negligence was negligence on appellee's part which contributed to his injury, and that appellee was under the duty to exercise reasonable care under the facts and circumstances shown in evidence. The instruction on contributory negligence was patterned largely after the one approved in Oestereich v. Leslie,212 Iowa 105, 113, 234 N.W. 229. At least, in the absence of a request for a more complete definition, the instructions sufficiently defined contributory negligence. Becvar v. Batesole,218 Iowa 858, 860, 256 N.W. 297; Winter v. Davis, 217 Iowa 424, 433, 251 N.W. 770; Fisher v. Cedar Rapids M.C.R. Co., Iowa 406, 420, 157 N.W. 860.
Although appellants apparently concede that the case properly falls within Code section 11210, providing that contributory negligence is available as a defense in certain cases only in mitigation of damages, it is argued that the jury might have found that appellee was acting outside the scope of his employment at the time he was injured, in which event contributory negligence would bar recovery, and that the court should have so instructed. However, the jury was told in effect that before appellee could recover he must prove he was acting within the scope of his employment by carrying out directions claimed to have been given him by Gilbertson to shut off the power of the tractor, and that if he did not so prove he could not recover. The verdict was necessarily a finding that appellee acted within the scope of his authority. Under the court's instructions, he was not entitled to recover if injured while acting beyond the scope of his employment, regardless of whether he was contributorily negligent. Appellants were therefore not prejudiced by the court's failure to instruct that appellee could not recover if acting beyond the scope of his employment and while guilty of contributory negligence. Band v. Reinke, 230 Iowa 515, 517, 298 N.W. 865, 867, bears on this question.
[3] III. The court instructed in substance that if appellants' manager, Risden, ordered appellee to report at the *Page 1022
saw to Gilbertson, who would tell him what to do, the directions of Gilbertson in connection with the work would have the same effect as if given by Risden or by appellants themselves, and that appellee must have proven that Gilbertson directed him to shut off the power when they finished sawing. Appellants complain of the instruction, claiming that any direction by Gilbertson to appellee to shut off the power did not bind them because Gilbertson was a mere co-employee and not a vice-principal.
The authority of Risden to supervise the farm work is not questioned. It appears without dispute that Risden directed appellee to report to Gilbertson, who would tell him what to do; that appellee went to Gilbertson as ordered; that Gilbertson told appellee to carry wood from the pile to the saw, and, when they had finished sawing, announced that would be all. Appellee testified that Gilbertson then directed him to shut off the power and that he did so. It is true this is disputed. But it is plain that if the testimony of appellee is believed, he was acting within the scope of his employment when injured. Had appellee refused to do as told by Gilbertson, he would have disobeyed the direction given him by Risden, who had placed Gilbertson in charge of the sawing operations.
The question here is not whether appellants are liable for the negligence of Gilbertson. No such claim is made. Nor are we concerned with whether Gilbertson should be classified as a fellow servant or vice-principal. The question here is whether appellee was injured by coming in contact with machinery furnished by appellants which was not reasonably safe, while acting within the sphere of his employment. He was not outside the scope of his employment if, as directed by Risden, he was attempting to do what Gilbertson told him to do. Appellants' attack upon the instruction is therefore not well-founded. As bearing on this question, see 35 Am. Jur. 794, 795, section 369; Collingwood v. Illinois and Iowa Fuel Co., 125 Iowa 537, 543, 101 N.W. 283; Chown v. Lennox Furnace Co., 166 Iowa 1, 9, 147 N.W. 144; Hitchcock v. Arctic Creamery Co., 170 Iowa 352, 376, 150 N.W. 727.
[4] IV. Appellants offered the testimony of Dr. Jones *Page 1023
that he examined appellee's arm on July 30, 1940, and found nothing wrong with it. The court sustained appellee's objection that the testimony was privileged. Appellants claim that appellee waived the privilege afforded by Code section 11263 by offering the testimony of Drs. Larson and Weston, and by his own testimony on cross-examination. However, it is clear that appellee did not waive his privilege as to Dr. Jones' evidence by offering testimony of the two other doctors who had treated him on different occasions. Baxter v. City of Cedar Rapids, 103 Iowa 599, 605, 72 N.W. 790; Jacobs v. City of Cedar Rapids, 181 Iowa 407, 420, 164 N.W. 891; Pearson v. Butts, 224 Iowa 376, 387, 276 N.W. 65; Annotation 62 A.L.R. 680, 681.
[5] On cross-examination appellee testified that he did not consult Dr. Jones about his arm but that he saw him regarding another matter, that the doctor then asked him about his arm because it was bandaged, and examined it without being asked to do so. We have frequently said that testimony on cross-examination is not voluntary in the sense that it constitutes a waiver of the statutory privilege. Donovan v. Donovan, 231 Iowa 14, 18, 300 N.W. 656, 659, and cases cited; Cross v. Equitable Life Assur. Soc., 228 Iowa 800, 805, 293 N.W. 464; Lauer v. Banning, 140 Iowa 319, 328, 118 N.W. 446,152 Iowa 99, 103, 131 N.W. 783; Burgess v. Sims Drug Co., 114 Iowa 275, 280, 86 N.W. 307, 54 L.R.A. 364, 89 Am. St. Rep. 359. See, also, Annotations 114 A.L.R. 798, 799, and 72 A.L.R. 148.
In Jacobs v. City of Cedar Rapids, 181 Iowa 407, 410, 411, 164 N.W. 891, 892, the plaintiff testified on cross-examination, "I did not consult any doctors in regard to my health before my accident." While recognizing the rule that testimony on cross-examination does not ordinarily waive privilege, the court, through Salinger, J., said that plaintiff's testimony precluded her from making the objection. The soundness of this statement was doubted in Cross v. Equitable Life Assur. Soc., supra,228 Iowa 800, 805, 293 N.W. 464, and it was said to be contrary to the general rule and the rule of this court. Appellee here, however, gave no such testimony as did the plaintiff in the Jacobs case.
[6] When appellants offered Dr. Jones as a witness, "Counsel for plaintiff requested the privilege of submitting a question *Page 1024
of law to the Court in the absence of the jury." The court granted the request and excused the jury from the courtroom. Appellants' offer of proof and appellee's objection on the ground of privilege were then made and argued in the jury's absence. Appellants contend they had the right to call Dr. Jones to the witness stand and require appellee to object to the doctor's testimony in the presence of the jury. We think, however, the trial court did not abuse its discretion in permitting appellee to claim his statutory privilege in the jury's absence. We have said several times that it is reversible error to require a plaintiff on cross-examination to say whether he is willing to waive the privilege which the statute affords. McConnell v. City of Osage, 80 Iowa 293, 303, 45 N.W. 550, 553, 8 L.R.A. 778; Burgess v. Sims Drug Co., 114 Iowa 275, 280, 86 N.W. 307, 54 L.R.A. 364, 89 Am. St. Rep. 359; State v. Booth, 121 Iowa 710, 713, 97 N.W. 74; Donovan v. Donovan, 231 Iowa 14, 17, 300 N.W. 656, 658, 659. A party should not be prejudiced by claiming a right which the law gives him. It is improper to challenge a party in the presence of the jury to waive his legal rights. In re Will of O'Connor, 173 Iowa 318, 328, 155 N.W. 290, Ann. Cas. 1918C, 378; 3 Am. Jur. 609, section 1061. These authorities by analogy support the court's action in permitting appellee to claim his privilege in the jury's absence.
[7] V. Complaint is made of instruction 10 to the effect that evidence of oral statements claimed to have been made by appellee during the time covered by his testimony should be closely scrutinized; that such testimony, consisting of repetition of oral statements, is subject to imperfection through want of understanding or accuracy of memory of the one narrating same. The instruction was then balanced to comply substantially with the so-called "Greenleaf rule" (see Scurlock v. City of Boone,142 Iowa 580, 583, 120 N.W. 313, and cases cited) by saying that statements voluntarily and intelligently made, when correctly understood, remembered, and testified to often lead to satisfactory conclusions, and that the evidence should be carefully considered and given such just and fair weight as the jury deemed proper.
Appellants' answer alleged that appellee deliberately injured *Page 1025
himself. Reindl testified for appellants to a statement made by appellee, as follows:
"Q. What was said, if anything? A. He said he got his hand caught in the power take-off. Q. Did he say he caught it in it? A. He said he grabbed it and it wrapped his mitten in the power take-off. Q. That he grabbed it? A. Yes."
Gilbertson testified: "Johnson said that he grabbed ahold of the take-off." Appellee denied making the statement testified to by Reindl and Gilbertson. Instruction 10 referred to the foregoing testimony. It is claimed the instruction improperly and critically singled out the testimony of Reindl and Gilbertson and that testimony given for appellee of what others had said should have been included within the instruction.
This is a stock instruction on the weight to be given admissions of a party, which, when properly balanced, we have approved on several occasions. See Davis v. City of Dubuque,209 Iowa 1324, 1331, 1332, 230 N.W. 421, and cases cited; State v. Friend, 210 Iowa 980, 988, 230 N.W. 425; Annotation 126 A.L.R. 66, 74, 75. See, also, Kuhn v. Kjose, 216 Iowa 36, 39, 248 N.W. 230; 31 C.J.S. 1178, section 382. The testimony of Reindl and Gilbertson was the only evidence of any admission by a party to the suit. The propriety of the instruction is apparent from the fact that Reindl first testified that appellee said he caught his hand in the shaft and the further fact that sane men do not ordinarily deliberately injure themselves. Other instructions fully informed the jury of the weight to be given the testimony generally.
[8] VI. Appellee's counsel is charged with misconduct in argument in two respects. Appellee's counsel commented upon the absence of appellant Kinney from the trial and upon appellants' failure to contradict appellee's testimony that he told Dr. Kinney of his injury two or three days after it happened and that he was in need of money for medical attention and that thereupon Dr. Kinney discharged him. This testimony was very material. We think there was no abuse of discretion in the trial court's ruling that the argument was proper. It is legitimate to comment upon failure of the opposing party to *Page 1026
produce testimony within his control. Bettis v. Chicago, R.I.
P.R. Co., 131 Iowa 46, 48, 108 N.W. 103; Van Slyke v. Chicago, St. P. K.C.R. Co., 80 Iowa 620, 624, 45 N.W. 396; Guin v. Mastrud, 206 Minn. 382, 288 N.W. 716, 718; M. M. Securities Co. v. Dirnberger, 190 Minn. 57, 250 N.W. 801, 803; 64 C.J. 269 ff., sections 289, 290. Likewise, it is proper to comment on failure of a party to testify in explanation of testimony against him. 64 C.J. 276, section 293.
[9] Appellants' counsel in argument singled out at least three of the jurors, called each by name, and appealed to each. A portion of the argument follows: "In your hotel, Mr. Adams, if you have a food chopper in there and a man is foolish enough to get his * * * fingers in the place that he was not intended to get them * * * surely you should not be held responsible to an employee * * *." Several other personal appeals to individual jurors were made. In closing argument, appellee's, counsel said: "I am not going to call you by name as was done by my predecessor. * * * our courts have said that that was improper." Appellants' counsel then interrupted, "I take exception to that; there isn't any such a rule," to which appellee's attorney replied, "Yes, there is." Appellants' counsel then responded: "I beg to differ with you." Appellee's counsel then said he had read in the Saturday Evening Post what a trickster lawyer does to ingratiate himself with the jurors; he bows, nods, and smiles through the trial, and when arguing calls them individually by name. Appellants' counsel objected but the court stated, "Proceed." Counsel for appellee then added that he would not undertake to influence a jury by anything along that line.
Appellants' counsel asked the court for no ruling or admonition to the jury because of the statement that it was improper to address jurors individually by name. See 64 C.J. 285, section 304. Appellants' counsel simply disputed this assertion. Appellee has cited decisions from other jurisdictions condemning the practice in argument of addressing jurors individually by name. See, also, 64 C.J. 249, 250, section 268. However, since appellants sought no ruling from the trial court on that portion of the argument, we do not feel called upon to settle the dispute.
Was the reference to the "trickster lawyer" such misconduct *Page 1027
as to require reversal? While we think that statement should have been omitted, we are not justified in reversing on that account. The trial court has a broad discretion in passing on the propriety of argument to the jury, with which we will not interfere except in a clear case of abuse of that discretion. Mitchell v. Mystic Coal Co., 189 Iowa 1018, 1023, 179 N.W. 428; Hein v. Waterloo, C.F. N.R. Co., 180 Iowa 1225, 1232, 162 N.W. 772; Womack v. Horsley, 178 Iowa 1079, 1091, 152 N.W. 65; 5 C.J. S. 511, 512, section 1611; 3 Am. Jur. 534, section 973. Before a new trial will be granted for misconduct in argument it must appear that prejudice resulted or that a different result would have been probable but for such misconduct. Hannestad v. Chicago, M. St. P.R. Co., 132 Iowa 232, 233, 109 N.W. 718; State v. Gulliver, 163 Iowa 123, 139, 142 N.W. 948; 5 C.J.S. 922, section 1713 (b); 3 Am. Jur. 607, section 1059.
Appellee contends that appellants' counsel at different times during the trial bowed and smiled to the jurors and called some of them by name, apparently in an effort to gain their favor. The trial was hotly contested. Portions of the jury argument for appellants are called to our attention. A part of appellee's testimony and his entire case were branded as a "frame-up." It was intimated that appellee was "an unprincipled person." The trial court observed all that took place and the effect upon the jury of the arguments of opposing counsel. The matter was fully presented to the court upon motion for new trial and the verdict was approved. We are not justified in interfering.
[10] VII. Finally, it is argued that the trial court should have directed a verdict for appellants. The principal contention is that negligence of appellants was not sufficiently shown. Appellants were obliged to exercise ordinary care to furnish reasonably safe machinery and appliances to their employees for the work expected of them. If the exercise of such care required them to cover this exposed shaft, to the end that it would be reasonably safe, then it was their duty to do so. Of course, they were not insurers of the safety of their employees. Rehard v. Miles, 227 Iowa 1290, 1295, 290 N.W. 702; Petersen v. McCarthy Imp. Co., 175 Iowa 85, 88, 156 N.W. 801; 35 Am. Jur. *Page 1028
605, section 176. The trial court fully and carefully so instructed. We cannot say that appellants, as a matter of law, performed their duty in this respect.
No reason is suggested why this shaft could not have been covered with the guard which appellants had. It would have been a simple task requiring but a few minutes time. The general tendency of the decisions is to hold the employer negligent in failing to guard dangerous appliances. 35 Am. Jur. 618, section 191. Our conclusion is supported by the following, among other, decisions: Lang v. Hedrick, 229 Iowa 766, 295 N.W. 107; Bell v. Brown, 214 Iowa 370, 239 N.W. 785; Oestereich v. Leslie, 212 Iowa 105, 234 N.W. 229; Buehner v. Creamery Package Co., 124 Iowa 445, 100 N.W. 345, 104 Am. St. Rep. 354. Lewis v. Cratty, 231 Iowa 1355,4 N.W.2d 259, is readily distinguishable. There the plaintiff had full knowledge of the unguarded shaft on a grain combine. Further, as pointed out in the opinion, that was not a master-and-servant case.
We have considered all contentions made and find no reversible error. — Affirmed.
WENNERSTRUM, C.J., and OLIVER, MITCHELL, MILLER, HALE, SAGER, and STIGER, JJ., concur.
BLISS, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430822/ | Madeline Dilliner commenced this action at law against Patrick H. Joyce and Luther M. Walter, trustees of the Chicago Great Western Railroad Company, a corporation, to recover damages on account of an injury that she suffered when an automobile in which she was riding ran into the side of a Chicago Great Western train at a point north of Des Moines in Polk County, Iowa.
The defendants filed answer denying each and every material allegation. There was a trial, at which evidence was offered and at the close of the plaintiff's evidence the defendants made a motion for a directed verdict, which was overruled. The motion was renewed at the close of all of the evidence and again overruled. The jury returned a verdict in favor of the plaintiff in the amount of $3,000. Defendants, being dissatisfied, have appealed.
As the errors urged for reversal involve only the question of whether or not the lower court erred in overruling the motion for a directed verdict, we must examine this record with the rule in mind that the evidence is to be considered in the most favorable light for the appellee.
Joyce and Walter were trustees at the time of the accident in question, operating the Chicago Great Western Railroad Company. Madeline Dilliner was a young woman, twenty-five years of age. On the evening of February 10, 1940 (some places in the briefs and arguments the date is mentioned as February 10, 1941), she, with her husband and her small children, was *Page 281
intending to go to Ames to remain overnight with her mother-in-law. She and her three children got into the automobile, a 1935 Ford V-8, at her home, at about 7:30 in the evening. The Great Western tracks ran catercornered two blocks north from where she lived and angled down across Broadway about a mile west of Norwoodville, on a slight angle north and south. The automobile was facing the Chicago Great Western tracks, and while sitting there she heard a freight train pass on these tracks. It was not until 8:00 o'clock that they started on their journey. Her husband owned and drove the automobile and she was riding as a guest. She had no management of or control over the automobile. They drove south on 29th Street, which is a street that runs in a northerly and southerly direction, heading into the city of Des Moines. It is a gravel road. When they reached what is known as Broadway Avenue they turned west. It was better than a mile from the place they turned to where the Great Western tracks cross Broadway Avenue where the accident occurred. While the street is referred to as Broadway Avenue, apparently it is nothing but a country road. The Great Western track crosses Broadway Avenue, the road upon which appellee and her husband were riding at the time of the accident, from north to south. The track north of the crossing turns to the east and the track south of the crossing turns to the east and this makes a horseshoe curve with the crossing in the toe of the horseshoe. As they drove west along what is referred to as Broadway Avenue, which was in reality nothing but a country road, the driver of the car, who is the husband of the appellee, testified that they were listening for whistles and bells and the noise of the train as they approached the railroad crossing; that his front lights were lighted and in good working order and he could see one hundred and fifty or two hundred feet ahead, and when he was not in smoke or fog he could see around three hundred feet. His tires were in good shape. It was hazy and foggy. The road was on a grade up to the railroad crossing. It was not such a grade that the lights went over the top of the railroad car, but instead the lights were shining underneath the railroad car all the time until they got within twenty-five feet of it. He was traveling at the rate *Page 282
of between twenty and twenty-five miles an hour. There were ruts in the road, and also ice. He testified, however, that he could not have stopped his car even if he had not slid on the ice. The evidence shows that, although the driver and his wife were listening and looking all of the time, there appeared to be no obstacle ahead of them until they got within about twenty-five feet of the train. The driver immediately applied the brakes, which were in good condition, and he slid into the side of the refrigerator car which was standing still on the railroad track. The appellee was injured and it is for those injuries that she seeks damages in this case. The collision occurred five or ten minutes after 8:00 o'clock and it is the claim of the appellee that the train which they ran into was the train which she heard at 7:30 when she was sitting in the car waiting for her husband at their home, and that therefore there was evidence upon which the jury could have found that the train had been blocking the crossing from somewhere between thirty and forty minutes. There is also evidence of statements claimed to be made by members of the crew as to the length of time that the train was blocking the crossing.
Both the appellee and her husband were perfectly familiar with the crossing. She testified they traveled along this same road to go to town and that she went over it three or four times a week and her husband went over it almost every day; that she had been along there many times at night; and the husband, who was the driver of the car, testified that he had used the crossing a great many times; in fact, he testified that he was so familiar with it that he knew what the grade of the road was, and where it changed, and how it went up as it approached the railroad track, and that there were ruts in it.
[1] Appellee contends that the appellants have waived the errors assigned because, in their brief and argument the assignment of error, the statement of where the erroneous ruling is to be found, is quoted from the motion made at the close of appellee's evidence, to wit, page 38, lines 6-12, and the ruling complained of, according to the appellee's brief and argument and also the appellants' brief and argument, is found on page 40, lines 40, 41. This, of course, is a mistake. It should be page 40, *Page 283
lines 30, 31. This ruling was made at the end of appellee's evidence. Following this ruling the appellants offered testimony and then rested. The appellee offered rebuttal testimony. Appellants, the appellee said, do not complain in this division or any other division of their argument in regard to the ruling the trial court made at the end of the evidence overruling their motion for a directed verdict. The appellee calls our attention to the fact that we have held that if a defendant makes a motion for a directed verdict at the end of plaintiff's evidence, and then, when the same is overruled, he does not rely thereon but offers his own evidence, this waives the ruling made on such motion and it is necessary for the defendant to make a motion at the end of the evidence and rely on such motion if he wants to question the sufficiency of the evidence to sustain the verdict or again raise such question in a motion for a new trial. Commercial Credit Co. v. Hazel, 214 Iowa 213, 242 N.W. 47.
The record in the case at bar shows that the appellants made a motion for a directed verdict at the close of the appellee's testimony; that they set out the specific grounds upon which they urged the court to direct a verdict in their favor. This motion was overruled. Evidence was then offered by the appellants and rebuttal evidence by the appellee. At the close of all of the evidence, the appellants renewed their motion for a directed verdict. We quote from the record:
"Mr. Evans: Comes now the defendant at the close of all of the evidence and renews the motion that was made at the close of the plaintiff's evidence to direct a verdict in its favor, and specifically renews each ground thereof."
Thus we see that the appellants specifically renewed each and every ground of the original motion for a directed verdict. Certainly it was not necessary to clutter up the record by dictating into the same at the close of the evidence each and every one of the grounds relied upon for a directed verdict. It was necessary for the appellants to quote from the abstract at the place where the motion for directed verdict was first made, because that is the only place the grounds of the motion for a directed verdict are set out and that is the place where the ruling was also set out. The mere fact that they quote from *Page 284
that part of the abstract it seems to us is immaterial. Appellants renewed the motion and specifically renewed each and every ground of same at the close of all of the testimony. The grounds for the directed verdict at the close of all of the evidence were automatically the same as at the time it was originally made at the close of appellee's testimony. The ruling was the same. Courts do not like to be technical. Courts should be anxious to see that technicalities are waived and all parties given a fair hearing. On this record we can come to no other conclusion than that the appellants did not waive the errors alleged and they properly protected their record.
[2] The appellants contend that the lower court erred in overruling the first ground of their motion to direct a verdict, reading as follows: "The evidence fails to disclose any negligence on the part of defendants in that the undisputed evidence shows that the train with which the car in which plaintiff was riding collided was occupying the crossing at the time and place of the collision and the defendants were under no duty [with respect thereto] which the evidence shows had been breached" for the reason they were under no duty to give warning to travelers upon a highway of the presence of a train upon a crossing, claiming that the train itself is sufficient warning of its presence.
The appellants rely mainly on our holding in the case of Dolan v. Bremner, 220 Iowa 1143, 263 N.W. 798. The appellee answers by saying that case is not controlling here, that the case at bar is different, but if not different, the Dolan v. Bremner case is not good law and should not be longer followed. We shall first take up the manner in which the appellee claims that this case differs from the Dolan case. It is argued that in the Dolan case the accident happened near the town of Ackley while in the case at bar the accident happened in the country where one would not be expecting trains to be blocking the crossing. We cannot agree with the appellee in this regard. It seems to us that it is as binding in the country as in town, for, after all, a railroad car setting on a track at an intersection of a highway and railroad track is just as much a warning in the country as it is in town, and it must always be kept in mind that in this *Page 285
case both the driver of the car and the appellee were familiar with the road that led up to the railroad crossing, with the railroad crossing itself, and with all of the surroundings. They used it practically every day and many times at night. In the Dolan case it is argued that the highway came downgrade as it approached the railroad crossing, and this would cause the light to shine on the standing car. In this case it is the contention of the appellee the crossing was approached on an upgrade and that this caused the lights to shine under the standing car. It is true that in the Dolan case there was a slope downward, but it was also claimed in that case that at a point approximately fifteen feet west of the tracks there was an incline. We quote from the Dolan case, at page 1147 of 220 Iowa, page 800 of 263 N.W.:
"Appellant's evidence tended to show that from a point a considerable distance west of the railroad crossing the highway sloped slightly downward toward the railroad crossing, this downward slope ending at a point approximately 15 feet west of the tracks, and that, from this point to the railroad tracks, there was a very slight incline of from 8 to 12 inches in the 15 feet."
In the case at bar the evidence of the civil engineer who made the measurements shows that two hundred feet east of the railroad crossing was the lowest point in the grade. That point is two feet seven inches below the top of the crossing. There is a four-inch rise in the next one hundred feet. From that point to the crossing there is a rise of two feet and three inches. Starting at this point one hundred feet from the crossing, there is a four-inch rise the first twenty-five feet. In the next twenty-five feet there is a seven-inch rise; in the third twenty-five feet there is a ten-inch rise; and in the last twenty-five feet there is a six-inch rise — a total of two feet three inches.
The driver of the car in which the appellee was riding testified that the lights of his car shone underneath the railroad car and on that account he was not able to see the railroad car until he reached a point approximately twenty-five feet from the crossing; that the fog on that night was hanging down just to the bottom of the refrigerator car which stood on the crossing. *Page 286
In the Dolan case the fog went down to the ground. The answer seems to us to be, that knowing, as the appellee and her husband, the driver of the car, did, that they were about to cross a railroad track, knowing all the circumstances surrounding it, including the grade of the road, knowing it was foggy and hazy, it was their duty to approach that crossing at a speed that they would be able to stop rather than at a rate of between twenty and twenty-five miles an hour. It is also interesting to note that a car approaching from the other direction was able to see the freight car on the track and to stop before colliding with it. It may be true that the conditions on the other side of the track were different from on this side. The record does not show. The record does show that the car approached and was able to see the freight car.
It is next urged by appellee that the railroad-crossing signal in the Dolan case was properly installed while in the present case it was very much out of repair. There is some evidence that the crossing signal, which was back some distance from the railroad track, was not in proper repair, but we do not believe that it is material in this case, because both the appellee and her husband, the driver of the car, testified that they knew where the crossing was and they had used it continuously for years.
The appellee quotes from the Dolan case as follows, at page 1146 of 220 Iowa, page 799 of 263 N.W.:
"It is the contention of the appellee, however, that the particular crossing in question is unusually dangerous, and that, in addition to the statutory sign, ordinary care on the part of the railroad company would have required other signs or warning signals to apprise the drivers of vehicles upon the highway of the presence of the railroad crossing. It may be conceded that, as contended by appellee, if a railroad crossing is unusually dangerous, a railroad company may be under obligation to install other warning signs or signals in addition to those required by statute. No general definition can be given as to what constitutes an unusually dangerous railroad crossing. Whether or not a railroad crossing is unusually dangerous must depend upon the facts in each particular case."
Appellee in the case at bar says the crossing was an unusually *Page 287
dangerous one. With this we cannot agree. The road was a gravel road. It was approximately twenty feet wide. True, there were trees along one side and there were snowbanks approximately three feet high, but the driver of the car in which appellee was riding was familiar with the entire condition of the road. The grade was not a dangerous one. We have set out the measurements made by the civil engineer. There was nothing to interfere with the vision of the driver looking straight ahead on this road.
We are inserting here a copy of Exhibit J, a photograph, which was offered by the appellee, and which was taken at a point two hundred feet east of the crossing, looking west, and shows the conditions as they were in February 1940, except for the snow and the lack of leaves:
[EDITORS' NOTE: PHOTOGRAPH IS ELECTRONICALLY NON-TRANSFERRABLE.]
It is claimed by the appellee, and there is evidence to support it, that the night was very dark, there were no stars or moon, it was very foggy and smoky. The gravel was a dirty, yellow-looking tan color. The railroad car that was blocking the crossing was a dirty, yellow refrigerator car, and its head trucks were south of the road and its back trucks were north of it and this allowed the light from an oncoming car to shine *Page 288
under the refrigerator car. None of the railroad employees were present at the crossing to give any signal to those approaching the crossing. The railroad employees were all acquainted with the crossing. There had been a snow two or three days before the day appellee was injured and the snowplows had pushed the snow to the side of the road and this made banks two or three feet deep. It had melted during the day on February 10, 1940, and this had allowed water to run in the automobile wheel tracks so that this had frozen and was slippery as the car neared the railroad track. This court, in the Dolan case, it seems to us answered all of these contentions, wherein it said, at page 1148 of220 Iowa, page 800 of 263 N.W.:
"Conceding that the appellee and the driver of the car in which she was riding may have been deceived by fog or mist overhanging the crossing, which because of the color of the railroad car made its presence on the crossing indiscernible in such fog or mist, we do not think there is anything in the evidence that would impose upon appellant the duty of anticipating that such a condition would exist, or that would impose upon appellant the duty of anticipating that appellee and the driver of the automobile in which she was riding would not, by the exercise of ordinary care, avoid the dangers incident to such a condition if it did exist. On the contrary, we think the railroad company would be justified in assuming that, if there was a mist or fog upon the highway, the driver of the car in which appellee was riding would reduce his speed so that he would not travel into or through such mist or fog at any greater rate of speed than would enable him to stop within the distance in which he could see objects ahead of him."
It is next contended that this case is different from the Dolan case in that the railroad company was not making reasonable and legitimate use of the crossing; that the crossing could have been cut or the train could have stopped north or south of the crossing; that the train had blocked the crossing between thirty and forty minutes without any of the trainmen coming to the crossing to put out lights or flares or give any warning signal. It is true there is evidence in the record from which the jury might have found that the crossing had been blocked *Page 289
between thirty and forty minutes. This is specifically denied by each and every member of the train crew but there is a dispute in regard to the facts. In regard to the legitimate use of the crossing, the appellee's husband testifies, over objection, that a trainman told him shortly after the accident the train was stopped to pick up cars. It is also the testimony of another witness that some trainman had said that they were going to do some switching.
The trainmaster of this division was riding in the cupola of the caboose on the night that this accident occurred. He testified that he saw fire twenty or thirty cars from the caboose, around the wheels, and that he applied the brakes from the caboose by using the conductor's valve and brought the train gradually to a stop; that the train was more than a half mile long; that immediately after the train was stopped, the conductor, a man by the name of Welch, went to the back of the train to protect it. The brakeman and the trainmaster immediately started toward the engine to inspect the train to see what was the trouble with the same. From the head end of the train, a brakeman, who was riding in the cab of the engine, started back toward the rear of the train to ascertain why the train had been stopped. When they reached the crossing they found the Dilliner car had collided with a refrigerator car, which was twenty-three cars from the engine. The only other members of the train crew were the engineer and the fireman, who remained with their engine. All of the testimony of the train crew is that it was stopped because it was the belief that something was dragging and there was some trouble with the brakes. It is true that they did not find anything. There is no evidence in this record that any cars were picked up or that any switching was done. In fact, there is no evidence that if the train was stopped for the purpose of picking up cars or doing switching it was not a legitimate use of the railroad crossing, nor is there any evidence in the record, except the length of time that the train was there, that it was an unreasonable length of time that the company was using the crossing. Thus, as we read the record, there was no evidence upon which the court could submit to the jury the question of improper use of the crossing or an unreasonable length of time that the crossing was blocked, for *Page 290
certainly the train crew had a right to stop the train. Thus we find no material difference between the case at bar and the Dolan case. In fact, the distinguished trial judge who tried this case believed that the Dolan case was controlling but it was his judgment that the Dolan case should be overruled. We are aware of the fact that there are other courts that hold contrary to the Dolan case. Some of the following cases have language in them contrary to our views set out in the Dolan case: Richard v. Maine Cent. R. Co., 132 Me. 197, 168 A. 811, 812; Spiers v. Atlantic Coast Line R. Co., 174 S.C. 508, 178 S.E. 136.
But there are many courts that are in accord with our holding in the case. A great many of them are reviewed in the case of Sailors v. Lowden, 140 Neb. 206, 211, 299 N.W. 510, 512. We quote:
"We will now consider a few of the many legal questions involved. The train standing on the crossing was not a cause of the accident, but merely a condition making the accident possible. `Presumably railroad maintaining statutory safeguards at crossings need keep no others, and traveler on highway has burden in action for injuries to prove special conditions requiring special protection.' McParlan v. Grand Trunk Western R. Co., 263 N.W. 734 (273 Mich. 527).
"`A railroad company is not bound to give warning of the presence of a train on a highway crossing in the night, if a traveler on the highway could, by proper diligence, discover its presence by the aid of the lights on his machine.' Gallagher v. Montpelier Wells River R. Co., 52 A.L.R. 744 (100 Vt. 299,137 A. 207).
"`A railroad company blocking a highway with a standing train at night has a right to assume that one driving an automobile along the highway will adopt such lights and rate of speed that he can bring his machine to a standstill within the distance that he can plainly see the obstruction, and therefore is not negligent in failing to give warning of the presence of the train.' Philadelphia R. Ry. Co. v. Dillon, 15 A.L.R. 894 (1 W.W. Harr. [Del.] 247, 114 A. 62).
"`In the absence of statutory requirements, the mere leaving of a train across a highway without lights or other signals to *Page 291
disclose its presence is not per se negligent, and cannot be considered as the effective cause, but merely as the condition, of injuries resulting from a traveler upon the highway running against the train.' St. Louis-San Francisco Ry. Co. v. Guthrie, 56 A.L.R. 1110 (216 Ala. 613, 114 So. 215).
"Each of these last two cases is followed by annotations in the A.L.R., and the latest and most extensive notes are found in 99 A.L.R. 1454.
"In Pennsylvania R. Co. v. Huss, 96 Ind. App. 71, 180 N.E. 919, the Indiana court said: `It would seem to be true that an object as large as a freight car would of itself, under ordinary conditions, be sufficient notice of its presence to warn any person using the highway with ordinary care that the highway was obstructed, and that it would not be necessary to have an employee present to call to the attention of travelers such fact.' See Trask v. Boston Maine Railroad, 219 Mass. 410,106 N.E. 1022; Morris v. Atlantic City R. Co., 100 N.J. Law, 328,126 A. 295.
"It is suggested that, when an automobile truck is disabled, or stops at night on a highway, the law requires that the driver at once display flares at each end to warn the traffic.
"Our attention has not been called to any law which provides that, when a long freight is using a passing track, has stopped and the rear brakeman is coming right up to cut a highway crossing, prior thereto he must bring up flares and light them to warn passing motorists, for every driver knows, when he sees the large standard with the cross-arms, that a train may be standing on the railroad track, for that is the usual and ordinary plan of railroading, for freight trains must take the passing track to permit passing trains to move on schedule time.
"In the case of Coleman v. Chicago, B. Q.R. Co.,5 N.E.2d 103 (287 Ill. App. 483), a verdict in the plaintiff's favor for $2,500 was set aside and a judgment was entered for the defendant. It was held by the court: `To recover for injuries received when automobile in which he was riding struck freight car blocking highway crossing, automobile guest would be required to adduce evidence tending to prove that railroad company was negligent and that such negligence was proximate cause of his injury.' *Page 292
"Another case closely in point is Mabray v. Union P.R. Co.,5 F. Supp. 397. In this case an experienced driver started home about 3 a.m. on November 7, 1932, on Brighton boulevard, leading out of the city of Denver, and collided with a freight train of stock cars so constructed that lights from the opposite side of the train could be easily visible to travelers on the other side. It was a dark night, and the vision was obscured by reason of snow and sleet, and it is alleged that the railroad company, knowing these conditions, failed to warn the traveling public of the danger existing across the highway. In this case it was said that courts have held that crossing signals are intended to protect the traveler from approaching trains, but that a train standing on a crossing is a sufficient warning to automobile drivers. The driver of the automobile and four of the guests with him each filed separate causes of action against the Union Pacific. Demurrers to each of the petitions were sustained."
This court as it is now composed does not desire to overrule the case of Dolan v. Bremner, 220 Iowa 1143, 263 N.W. 798.
[3] Not only do we believe there is no evidence of negligence in the case at bar, but, if there were, it would be insufficient to show that such negligence on the part of the railroad company was the proximate cause of the accident and injuries to the appellee. As we said in the Dolan case, at pages 1148, 1153 of220 Iowa, page 800 of 263 N.W.:
"Even if it be conceded, however, that the evidence was such that it made a question for the jury as to the necessity of other and additional warning signs or signals, and, even if the appellant railroad company may have been negligent in that respect, we think the evidence insufficient to show that such negligence, if any, on the part of the railroad company was the proximate cause of the accident and injuries to the appellee. Railroad tracks necessarily cross public highways, and it is necessary that trains at times be stopped upon such public highway crossings. When this is done and the railroad company is making reasonable and legitimate use of such crossing, the presence of the train itself is sufficient warning to anyone using the highway, and there is no duty upon the part of the railroad *Page 293
company to anticipate that one using the highway will not see such train and be apprised of its presence as fully as he would be if other signs or warnings were used. * * *
"We reach the conclusion, therefore, that there was no negligence proved on the part of the defendant railroad company that constituted the proximate cause of the accident and injuries for which recovery is sought in this action. In view of this conclusion, we deem it unnecessary to prolong this opinion by a discussion of other alleged errors."
It necessarily follows that the lower court erred in not sustaining the motion for a directed verdict and that this case must be, and it is, hereby — Reversed.
WENNERSTRUM, C.J., and HALE, SAGER, MILLER, and STIGER, JJ., concur.
BLISS, OLIVER, and GARFIELD, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4050445/ | Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed
August 18, 2015.
In The
Fourteenth Court of Appeals
NO. 14-15-00669-CR
IN RE DONTHELLE MORENO, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
263rd District Court
Harris County, Texas
Trial Court Cause No. 1451410-A
MEMORANDUM OPINION
On August 6, 2015, relator Donthelle Moreno filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also
Tex. R. App. P. 52. In the petition, relator asks this court to set bond pending trial
on charges of aggravated robbery and possession of a firearm by a felon because
the Honorable Jim Wallace, presiding of the 263rd District Court of Harris County,
has not done so.
Relator is requesting habeas corpus relief. The courts of appeals have no
original habeas corpus jurisdiction in criminal matters; their jurisdiction is
appellate only. Tex. Gov’t Code Ann. § 22.221(d); Dodson v. State, 988 S.W.2d
833, 835 (Tex. App.—San Antonio 1999, no pet.); Ex Parte Denby, 627 S.W.2d
435 (Tex. App.—Houston [1st Dist.] 1981, orig. proceeding). Original jurisdiction
to grant a writ of habeas corpus in a criminal case is vested in the Texas Court of
Criminal Appeals, the district courts, the county courts, or a judge in those courts.
Tex. Code Crim. Proc. Ann. art. 11.05 (West 2015); Ex Parte Hawkins, 885
S.W.2d 586, 588 (Tex. App.—El Paso 1994, orig. proceeding). Therefore, this
court is without jurisdiction to consider relator’s petition requesting habeas corpus
relief.
Accordingly, we dismiss relator’s petition for lack of jurisdiction.
PER CURIAM
Panel consists of Justices Jamison, McCally, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
2 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430805/ | Appellee is a corporation, which was duly organized under the laws of the state of Iowa in 1901. It is engaged in the production, manufacture, and sale of lumber and kindred commodities. Its capital stock is $400,000, 1. TAXATION: divided into 4,000 shares of the par value of assessment $100 each. The tax sought to be levied is and levy on against the shares of stock in said corporation omitted for the years 1917, 1918, 1919, and 1920. It property: appears that, during said period of time, essential appellee owned a large amount of timber land in steps. the state of Mississippi, and operated two mills in connection therewith, and the necessary logging railroads for the movement of logs and lumber on its premises. It was also engaged in the business of distilling turpentine. It paid taxes upon its real estate and personal assets in the state of Mississippi during each of said years, in large amounts.
I. We first consider the question of the procedure upon which this action is based.
It appears from the record that, notwithstanding the provisions of Chapter 66 of the Acts of the Thirty-fourth General Assembly (Section 1407-f, Code Supplement, 1913), prohibiting the making of such a contract, the board of supervisors of Polk County entered into a contract with an attorney for the discovery of property that had been omitted from taxation and for the collection of taxes on the same. *Page 1087
On or about August 27, 1921, appellant, as county treasurer, signed a written instrument, in the form of a notice and demand. This was addressed to the appellee corporation and its officers, and contained the statement that, during each of the years 1917, 1918, 1919, and 1920, the corporation had a total capital stock of $400,000, of a taxable value of $2,000,000, taxable at a rate of .005; that the taxes for each of said years were $10,000; and the interest for each of said years on said amount was computed and set forth. This instrument recited that the county treasurer demanded payment of the amount of said taxes, together with six per cent interest thereon from the time they would have become due and payable had the property been listed and assessed; and also notified appellee that, upon failure to pay such sum within thirty days after the 29th of August, proceedings would be commenced against appellee, "as provided by law."
The county treasurer testified that said notice was prepared by the attorney employed by the board of supervisors, who presented the same to the treasurer for signature. The treasurer testified that he made no investigation of the matter, and did nothing whatever except sign the paper. On cross-examination, he testified that he made no record; that he spread nothing upon his books; and that the only record he had in the office in respect to said matter was the one sheet of typewritten paper, which was the notice and demand, with the registry receipt pinned to it. He also testified that he did not tell the attorney to prepare this notice; that the latter brought it to him, together with copy thereof, and he signed it.
After the expiration of thirty days from the time fixed in the said notice and demand, this action was commenced. The proceedings were had under Section 1374 of the Code, which is as follows:
"When property subject to taxation is withheld, overlooked, or from any other cause is not listed and assessed, the county treasurer shall, when apprised thereof, at any time within five years from the date at which such assessment should have been made, demand of the person, firm, corporation or other party by whom the same should have been listed, or to whom it should have been assessed, or of the administrator *Page 1088
thereof, the amount the property should have been taxed in each year the same was so withheld or overlooked and not listed and assessed, together with six per cent interest thereon from the time the taxes would have become due and payable had such property been listed and assessed, and upon failure to pay such sum within thirty days, with all accrued interest, he shall cause an action to be brought in the name of the treasurer for the use of the proper county, to be prosecuted by the county attorney, or such other person as the board of supervisors may appoint, and when such property has been fraudulently withheld from assessment, there shall be added to the sum found to be due a penalty of fifty per cent upon the amount, which shall be included in the judgment. The amount thus recovered shall be by the treasurer apportioned ratably as the taxes would have been if they had been paid according to law."
It is contended that, in the application of this statute authorizing the county treasurer to assess omitted property for the purpose of taxation, nothing more is required on the part of the treasurer, to effectuate such an assessment, than to merely sign and serve upon the taxpayer a demand of the kind disclosed in this record. Section 1374 is found in the general chapter on "assessment of taxes."
Code Section 1312 provides that every inhabitant of the state, of full age and sound mind, shall list for the assessor all property subject to taxation in the state of which he is the owner or has the control or management.
Section 1313 of the Code provides:
"Moneys and credits, notes, bills, bonds, and corporate shares or stocks not otherwise assessed, shall be listed and assessed where the owner lives."
Under the general and universal rule with regard to the taxation of property, it is essential that there be a listing and assessing and a levy, in order to constitute a valid tax.
In McCready v. Sexton Son, 29 Iowa 356, 388, in discussing an action involving a tax sale, we held that four things, (1) a listing and assessing, (2) a levy, (3) a tax warrant, or statutory provision for collection, and (4) a sale, were essential to effectuate a sale of property for taxes, and said:
"These are essential and jurisdictional, and every other *Page 1089
provision of every revenue law may safely be said to be directory only, and not essential to the exercise of the taxing power."
In Moore v. Cooke, 40 Iowa 290, we said:
"The levy is a very essential step in the imposition of a tax. In McCready v. Sexton Son, 29 Iowa 356, 389, it is likened to a judgment in rem. It would be a dangerous principle to adopt, that proof of such fact may rest in parol, notwithstanding the fact that the statute positively directs that the memory of it shall be preserved by a record in the proper book."
See, also, Hintrager v. Kiene, 62 Iowa 605.
At this point, the question is as to whether or not the mere giving of a written notice to a taxpayer, by the county treasurer, and a demand that he pay the taxes claimed to be due on omitted property, are the valid listing and assessment and levy of a tax.
It is also the universal rule that it is essential to the validity of a tax levy that a written record of it should be made and kept by some proper authority.
The "demand" which the statute requires the treasurer to make upon the delinquent taxpayer is not directed to be made in writing. Ordinarily, a demand may be made orally, as well as in writing. Does this statute permit an oral demand by the county treasurer and a subsequent suit for omitted taxes, without more? Can this be done without any entry of a tax?
There is some analogy between this statute and Section 1398 of the Code, which provides that:
"The treasurer shall assess any real property subject to taxation which may have been omitted by the assessor, board of review or county auditor, and collect taxes thereon, and in such cases shall note, opposite the tract or lot assessed, the words `by treasurer.'"
That an assessment in some form is a prerequisite step to an action for the recovery of taxes is well settled by the authorities. Worthington v. Whitman, 67 Iowa 190; AppanooseCounty v. Vermilion, 70 Iowa 365; Thornburg v. Cardell, 123 Iowa 313, 319.
It is contended by appellant that, in Galusha v. Wendt,114 Iowa 597, we construed Section 1374, and held that:
"The demand by the treasurer amounts to an assessment, and the action which he is authorized to bring is for the collection *Page 1090
of taxes found due on that assessment."
A statement to that effect is in the syllabus of the reported case, but no such statement is contained in the opinion. In the opinion we said:
"It is true that assessment is a step essential to the validity of a tax" (citing authorities).
We also said:
"Without an assessment, there is no debt from the taxpayer, and there is no obligation on his part which can be enforced in an action."
Also, we said:
"But the failure of the property owner to return his property for assessment, although subjecting him to various penalties, did not obviate the necessity of some assessment as a basis for the collection of the taxes on property omitted. * * * The effect of the new provision in the Code of 1897 which we are now considering is to authorize the treasurer to demand the amount of the tax which should have been collected on account of omitted property; and in determining the amount of such tax, he will necessarily exercise the authority which might have been exercised by the assessor and board of review or the auditor. The assessment is made by him, and the action which he is authorized to bring is for the collection of taxes found to be due on such an assessment. * * * But inasmuch as the action of the treasurer is not conclusive, and the duty on which his demand is based can be shown to the court in which the enforcement of the demand is sought, we do not think that the taxpayer is deprived of any constitutional right. [Citing cases.] We have held in regard to the collateral inheritance tax that the bringing of suit was not a substitute for assessment, but in such a case, there had been no omission on the part of the person who should return the property for assessment. Ferry v. Campbell, 110 Iowa 290."
In Woodbury County v. Talley, 153 Iowa 28, in referring to Section 1374 and assessments thereunder, we said:
"It is quite as important that records of such assessment be made as of assessments by other officers. * * * Section 1374 of the Code, authorizing the county treasurer to assess property withheld or omitted from taxation, does not prescribe in what *Page 1091
manner such assessment shall be evidenced in the records of the county. In Galusha v. Wendt, 114 Iowa 597, the demand for the amount for which the omitted property should have been taxed, with interest, on the delinquent taxpayer, was held to constitute the assessment necessary."
After the adoption of the Code of 1897, the legislature (Chapter 50, Acts of the Twenty-eighth General Assembly, Section 1407-a et seq., Code Supplement, 1907), provided for theassessment by the treasurer of omitted property and for thelisting and assessment of the same after notice by the treasurer. This was known as "The Tax Ferret Law." These provisions of the statute were repealed by Chapter 66, Acts of the Thirty-fourth General Assembly, so that the law as it now stands on this subject is to be found only in the provisions of Section 1374. The case of Woodbury County v. Talley, supra, was decided while Sections 1407-a et seq., Code Supplement, 1907, were in force.
While said act (Code Supplement, 1907, Section 1407-a et seq.)
was in force, we repeatedly held that a listing and assessment by the treasurer was necessary, the terms of the statute so providing.
We are now confronted with the question as to what the treasurer is required to do to collect the tax on omitted property under Code Section 1374, which contains no provision as to listing and assessment by the treasurer, but only provides for a "demand" and the bringing of a suit.
In Woodbury County v. Talley, supra, we said:
"It was said in Re Morgan, 125 Iowa 247, that `the determination by him that the property has been omitted and his ascertainment of the amount thereof is taken as a substitute for the assessment required by the general provisions of the statute relating to that subject.' How shall this be evidenced? There must be a listing of the property to be taxed in some form (Judyv. National State Bank, 133 Iowa 252); and, as no other is specified, we think the legislature must have contemplated that prescribed for listing assessed property generally. This supplies a permanent record, which is in the interest of the taxpayer, as well as the public. It follows that the entry in the tax list or other book kept for the purpose evidences the *Page 1092
final determination of the treasurer. See Snakenberg v. Stein,126 Iowa 650."
In the Galusha case and the case of Woodbury County v. Talley,
supra, there are dicta to the effect that the written notice and demand by the treasurer for the amount of the tax on the omitted property, with interest, is sufficient to constitute the necessary assessment. The statements therein so made were not necessary to the decision of either of said cases, and are no more than obiter dicta.
In Thornburg v. Cardell, 123 Iowa 313, we said:
"There is an allegation of a demand, which would, perhaps, have been sufficient, under Section 1374 of the Code, before its amendment by Chapter 50, before mentioned."
In German Sav. Bank v. Trowbridge, 124 Iowa 514, we said:
"Clearly, the purpose of the statute, and the sole purpose thereof, was to provide the means whereby property which had escaped the attention of the assessor or had been withheld from his knowledge might be added to the assessment rolls, and made to bear its just share of the public burdens."
In Kehe v. Blackhawk County, 125 Iowa 549, we said:
"Before the amendment of Section 1374 of the Code by Acts Twenty-eighth General Assembly, page 33, Chapter 50, we had held that the demand by the county treasurer constituted an assessment."
In Security Sav. Bank v. Carroll, 128 Iowa 230, we said:
"Section 1374 of the Code authorizes the treasurer to assess property omitted from taxation in previous years, and to sue for delinquent taxes thereon."
Judy v. National St. Bank, 133 Iowa 252, was decided while Code Supplement, 1907, Sections 1407-a et seq., were in force. Therein we said:
"Under each of these sections, the notice sent out by either the auditor or the treasurer is not an assessment. Nor is the demand made by the treasurer, under the law as it now stands, such an assessment as is contemplated by law. Kehe v. BlackhawkCounty, 125 Iowa 549. In either case there must be an assessment of the property. An assessment of necessity involves at least two things, to wit, a listing of the property to be taxed *Page 1093
in some form, and an estimation of the sums which are to be a guide in the apportionment of the tax. Cooley on Taxation (3d Ed.) 596. That there must be an assessment to support a tax, seeGalusha v. Wendt, 114 Iowa 604; Thornburg v. Cardell, 123 Iowa 319. In the case last cited, it is expressly held that there must be a proper assessment before an action at law will lie under Section 1374 to recover taxes on omitted property."
In Langhout v. First Nat. Bank, 191 Iowa 957, we said:
"Therefore, unless the power conferred upon the county treasurer by the provisions of Code Section 1374 is a warrant for his listing and assessing of the shares of stock of the defendant bank as omitted property, then such power does not exist. The purpose of this statute, and the sole purpose thereof, is to provide the means whereby property that has escaped the attention of the assessor, or has been withheld from his knowledge, and which may have escaped correction by the county auditor for the current year, may be added to the assessment roll and made to bear its proper and proportionate share of public taxation."
In Murrow v. Heath, 146 Iowa 347, the demand was set out, and we found it to be the equivalent of the transcript of the assessment, as entered in the treasurer's omitted property tax list.
It is evident that, under our previous decisions, the question now presented before us has never been definitely decided. While Sections 1407-a et seq., Code Supplement, 1907, were in force, we repeatedly referred to Section 1374 in connection therewith, and held that a listing and assessment by the treasurer were essential. There are statements to the effect that, under Galushav. Wendt, supra, the "demand was equivalent to an assessment;" but, as we have already pointed out, the Galusha case does not so decide.
We now have the question squarely presented to us whether or not the method provided by Section 1374 of a demand by the county treasurer is the equivalent of a "listing, assessment, and levy" of a tax. The legislature undoubtedly intended, by Section 1374, to confer upon the county treasurer the power to "add to the assessment roll" property that had been omitted therefrom. But the making of a mere demand upon the taxpayer *Page 1094
is not a listing and assessment of omitted property.
As we have frequently said, the purpose of this statute is to place omitted property upon the assessment roll. It is to be listed and assessed, as if it had been originally listed and assessed.
Surely, there must be a record of such listing and assessment as a prerequisite to the right to demand the tax. There is no tax to demand; no tax for which suit may be brought, until this is done. The law certainly contemplates that there shall be a permanent record of all property listed for taxation, and also of the assessment and levy and the amount of tax to be paid thereon. Taxes properly levied, or taxes omitted and subsequently properly levied by the proper officers, are not to be found upon mere typewritten sheets of paper kept somewhere in a treasurer's office.
A permanent record is required with regard to these matters, so that the taxpayer may be advised from the public records in the treasurer's office of the property that is assessed and the amount assessed against it. This is essential to the orderly conduct of public business and to the proper protection of the public interests, as well as to the rights of the individual taxpayer. Records in such an important matter cannot be kept by loose "scraps of paper," even though the same are signed by the treasurer and have a registry receipt pinned thereto. It is a matter of common knowledge that treasurers as a rule are supplied with a permanent book in which omitted property is listed and assessed and the taxes levied. But even without such book so specially designated, the treasurer must in some way substantially comply with the requirements of the statute in regard to preserving a permanent record of the listing, assessment, and levy of taxes. In the instant case, if the taxpayer, after receiving the demand, had gone to the county treasurer's office, he could have found no record of any listing, assessment, or levy of any tax against him at all.
It may be argued that Section 1374 does not provide specifically for any listing, assessment, and levy, but only for the making of a demand and the bringing of a suit after such demand. It is true that the statute does not so provide in terms, but it must be read in pari materia with the other provisions on *Page 1095
the manner of listing and assessing property, as contained in the same chapter of the Code.
Code Section 1403 provides that "no demand of taxes shall be necessary." Section 1374 provides for a demand as to taxes onomitted property, but there can be no tax to demand until there has been a listing and an assessment, and a record made thereof. The demand is for a tax, and the suit is for a tax. We think the statute fully contemplates and requires that, before the demand is made, there shall be a listing and assessment and levy of the tax by the county treasurer in the proper tax book, and then a demand upon the taxpayer for the payment of the same, and upon his failure to so pay, that the county treasurer may bring suit to recover for the tax. This is consistent and in harmony with the provisions of Section 1398 with regard to the assessment by the treasurer of real property that has been omitted. It is also consistent with the general provisions of the statute in regard to the assessment of property in general. The result of this holding is not to render Section 1374 nugatory or invalid, but merely to hold that, in proceeding thereunder, the treasurer shall make a listing and assessment of the omitted property; in other words, that he shall take the necessary and legal steps to create "a tax," and then proceed, by demand and suit if need be, to collect the tax on the property so placed on the assessment roll. Without such a proceeding, there is nothing on the assessment roll; there is no listing, no assessment, no tax. The treasurer cannot make a demand for "a tax" until a tax has been spread upon the record; in other words, there can be no tax until in some manner the essential steps universally recognized as preliminary to a legal tax have been taken. These require a listing and assessment, and, in this instance, it requires that the omitted property shall be so duly listed, assessed, and the tax shown upon the proper records in the treasurer's office. No such steps having been taken in the instant case, we are driven to the conclusion that the treasurer had before him no legal record or basis whatever upon which to make the demand upon the taxpayer, and that he was in no position to institute the present suit until such preliminary steps had been substantially complied with. On this ground alone, the court did not err in dismissing appellant's petition. *Page 1096
II. We next consider the question as to whether or not appellee is liable for the tax for which suit is brought, if one had been properly levied. Code Section 1319 provides as follows: "Any person, firm or corporation who 2. TAXATION: purchases, receives or holds personal property "manufac- of any description for the purpose of adding turer" to the value thereof by any process of defined. manufacturing, packing of meats, refining, purifying, or by the combination of different materials, with a view to making gain or profit by so doing, and selling the same, shall be held a manufacturer for the purposes of this title, and he shall list for taxation such property in his hands; but the average value thereof to be ascertained as in the preceding section, whether manufactured or unmanufactured, shall be estimated upon those materials only which enter into its combination or manufacture. Machinery used in manufacturing establishments shall, for the purpose of taxation, be regarded as real estate. Corporations organized under the laws of this state for pecuniary profit, and engaged in manufacturing as defined by this section, and which have their capital represented by shares of stock, shall, through their principal accounting officers, list their real estate, personal property and moneys and credits in the same manner as is required of individuals. The owners of capital stock of manufacturing companies, as herein provided for, having listed their property as above directed, shall be exempt from assessment and taxation on such shares of capital stock."
Code Section 1323 is, in part, as follows:
"The shares of stock of any corporation organized under the laws of this state, except those which are not organized for pecuniary profit, and except corporations otherwise provided for in this act, shall be assessed to the owners thereof, at the place where its principal business is transacted."
It is the contention of appellant that appellee is subject to the tax in question, under the provisions of Section 1323. It is to be noticed that said statute clearly excepts from its operation "corporations otherwise provided for in this act." Corporations engaged in merchandising and corporations engaged in manufacture are "otherwise provided for in this act." We *Page 1097
therefore are brought immediately to the inquiry as to the nature of the business of the corporation in question.
The articles of incorporation provide that the business of said corporation is "the production, manufacture and sale of lumber and kindred commodities and to that end it may purchase, mortgage, sell and otherwise acquire, incumber or dispose of such real and personal property and it may build, purchase, lease, mortgage, control, operate or otherwise acquire, incumber, sell or dispose of such mills, factories, warehouses, stores, canals, roads, tramways, railroads and equipment as it may deem needful and convenient in the transaction of its business."
Under its articles of incorporation, is appellee the kind of corporation described in Section 1319 of the Code as a manufacturer? Its business is declared to be "the production, manufacture and sale of lumber and kindred commodities." The statute applies to a "person, firm or corporation who purchases, receives or holds personal property of any description for the purpose of adding to the value thereof by any process of manufacturing * * * with a view to making gain or profit by so doing, and selling the same."
Appellee corporation owns a large amount of real estate, timber land, and the necessary mills and apparatus for the business of converting timber into lumber for the purposes of sale; and its articles, after defining its business to be the production, manufacture, and sale of lumber and kindred commodities, provide that "to that end it may purchase, mortgage, sell and otherwise acquire real estate and personal property," etc. This ownership of real estate is a necessary incident to its business of manufacturing, and we think that, under its articles, it comes within the meaning and provisions of Section 1319 of the Code.
With this construction of the nature of the business of the corporation, it inevitably follows that an assessment cannot be levied upon the shares of stock of the corporation under Section 1323, for the reason that the assessment of such a corporation is "otherwise provided for in this act" by Section 1319.
In Union Petroleum Co. v. Indian Petroleum Co., 192 Iowa 1373, which involved the assessment on shares of stock in a mercantile corporation, we held that, when the statute provides *Page 1098
a method for the assessment of property, that method is exclusive, and that, a method being provided for the assessment of mercantile corporations under Section 1318, assessment for shares of stock under Section 1323 was invalid.
The same rule must apply to a manufacturing corporation as to a merchant corporation; and, there being adequate provision in the statute for the assessment of a manufacturing corporation, the shares of stock of such corporation cannot be taxed under Section 1323.
Appellant strenuously insists, however, that Section 1319 does not apply to appellee as a manufacturing corporation, because of the fact that, while it is incorporated under the laws of the state of Iowa, and its principal place of business is in the state of Iowa, its business of manufacturing and its property are all located in the state of Mississippi. The argument is made that, it being a corporation organized under the laws of the state of Iowa, and its property being beyond the jurisdiction of this state, the shares of stock are taxable under Section 1323 of the Code.
This would be true undoubtedly if the corporation were other than a mercantile or manufacturing corporation. In other words,if taxable under Code Section 1323, the fact that its capital was wholly invested outside of this state and all of its business transacted in a foreign state would not absolve the shares of stock from taxation in this state. Koochiching Co. v. Mitchell,186 Iowa 1216. It becomes largely a matter of classification. Being, in fact, a manufacturing corporation, it is subject to be taxed as such under Section 1319, and it cannot be taxed under both Sections 1319 and 1323.
Appellant's contention would have weight if addressed to the legislature in regard to the matter of providing for the assessment of property where a manufacturing corporation has its principal place of business in Iowa and its assets in a foreign state. We are compelled to construe the statutes as we find them to be, and as the legislature has seen fit to enact them. Our law does not provide that a manufacturing corporation, even though it has its principal place of business in this state, can be taxed upon its shares of stock in this state merely because its property is located in a foreign state. The corporation is a *Page 1099
manufacturing corporation, none the less, even though its actual property is located beyond the borders of the state of Iowa. The record establishes without dispute that the property of the corporation, located in the state of Mississippi, both real and personal, is taxed by said state, and that many thousands of dollars in taxes have been paid by the corporation in the state of Mississippi upon such property.
The question narrows itself to one proposition: as to whether or not, under this record, the shares of stock of the appellee corporation are subject to taxation in this state, under Section 1323 of the Code. We hold that appellee is a manufacturing corporation, within the meaning of Section 1319 of the Code, and that, although its property is not within the state of Iowa, and hence not taxable by this state because not located therein, such fact does not render the shares of stock of the corporation subject to taxation under Section 1323 of the Code.
It therefore follows that the order of the district court dismissing appellant's petition was proper, and the judgment of the trial court is — Affirmed.
ARTHUR, C.J., EVANS, PRESTON, STEVENS, and VERMILION, JJ., concur.
De GRAFF, J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430806/ | On July 28, 1927, the New York Life Insurance Company issued a policy upon the life of Raymond E. McCoy. The first annual premium, amounting to $39.22, was paid on July 28, 1927, and a like sum on July 28, 1928. No subsequent premiums were ever paid. On the 17th of February, 1929, while the policy was in full force, the premium having been paid, Raymond E. McCoy became insane, and was on or about the 27th of May, 1929, duly and regularly adjudged to be insane by the insane commissioners of Dickinson county, Iowa, and was confined in the Iowa State Hospital for the insane at Cherokee, Iowa, from that date until June 7, 1933, at which time he died.
There is no dispute in regard to the facts in this case. The case was submitted upon a stipulation, and that stipulation states, among other things, that from February 17, 1929, until the death of the insured, on June 7, 1933, the said insured was totally and permanently disabled from performing any work or following any occupation or engaging in any business for profit; that during all of said period he was insane and was confined in the State Hospital for the insane.
The policy which the New York Life Insurance Company had issued provided for the payment of disability benefits as follows:
"Upon receipt at the Company's Home Office, before default in payment of premium, of due proof that the Insured is totally disabled as above defined, and will be continuously so totally disabled for life, or if the proof submitted is not conclusive as to the permanency of such disability, but establishes that the Insured is, and for a period of not less than three consecutive months *Page 516
immediately preceding receipt of proof has been, totally disabled as above defined, the following benefits will be granted:
"(a) Waiver of Premium. — The Company will waive the payment of any premium falling due during the period of continuous total disability, the premium waived to be the annual, semi-annual or quarterly premium according to the mode of payment in effect when disability occurred.
"(b) Increasing Income Payments. — The Company will pay to the Insured the monthly income stated on the first page hereof ($10 per $1,000 of the face of this policy) for each completed month from the commencement of and during the period of continuous total disability. The amount of the monthly income shall increase after sixty consecutive monthly payments have been made to one and one-half times such amount, and after sixty further consecutive monthly payments have been made to twice such amount. If disability results from insanity, payment will be made to the beneficiary in lieu of the Insured. * * *"
On December 3, 1929, the insurance company, in accordance with provisions of its policy, declared a dividend to the said insured, Raymond E. McCoy, in the sum of $7.86, and on said date mailed by United States mail a check payable to the order of said insured for said sum. Thereafter, on or about April 5, 1930, the insurance company wrote a letter to the insured, calling his attention to the outstanding dividend check, asking that said check be cashed.
On or about June, 1930, E.E. Shelledy of Spirit Lake, Iowa, who was the agent of the New York Life Insurance Company who solicited the insurance from Raymond E. McCoy, was requested by the insurance company to call at the home of McCoy in regard to the dividend check which had been sent out months before and had not been cashed. In compliance with the request of his employers, the New York Life Insurance Company, Shelledy proceeded to the former home of the insured. When he arrived there, he inquired as to where Raymond E. McCoy was, and was informed that he was confined in the Insane Hospital at Cherokee, Iowa. He then asked the appellants in the case at bar, who were the beneficiaries of the policy, as to the dividend check which the company had sent to McCoy, and they informed him they knew of no such dividend check, and they then and there informed him that they had never heard or had any knowledge of the fact that an *Page 517
insurance policy had been issued by the New York Life Insurance Company. An investigation was then made of certain papers belonging to the said Raymond E. McCoy, and they found the unopened letter containing the dividend check from the New York Life Insurance Company, and also discovered the policy of insurance. The dividend check and the policy were turned over to the agent of the insurance company, who offered to prepare and furnish to appellants forms for making proof of permanent disability of the insured. And Shelledy immediately wrote to the insurance company, informing them of the facts in the case. Thereafter the insurance company wrote a letter that, due to the insured's condition, they would be unable to pay the dividend until there was a guardian appointed and a certified copy of the appointment forwarded to the home office. Shortly after the death of the insured, which occurred on June 7, 1933, Mr. Shelledy, the agent of the New York Life Insurance Company at Spirit Lake, Iowa, was notified of his death and was asked for the proper blanks to make proof of death. On June 21, 1933, the New York Life Insurance Company wrote to the McCoys, appellants in this case, denying liability and informing them that at the time of the death of Raymond E. McCoy the policy of insurance they had written had no value and he carried no insurance with their company.
The New York Life Insurance Company having denied liability, the appellants commenced an action to recover upon said policy. A jury was waived, and the case was tried to the court. The lower court held in favor of the insurance company and judgment was entered against the appellants for the costs. Being dissatisfied, they have appealed to this court.
It is the contention of the appellants that, for the reason that total disability of the insured arose while the policy was in force, and was of a character totally incapacitating the insured from giving notice or of furnishing proofs of such total disability, he was excused from complying strictly with the terms of the policy, and it therefore did not lapse.
The following facts should be kept in mind: First: The policy was issued by the New York Life Insurance Company and at the time that the insured became totally and permanently disabled the policy was in full force and effect, the premium having been paid for that year by the insured. Second. It was absolutely impossible for the insured to give the notice which the company now claims *Page 518
should have been given, due to his mental condition, and it was impossible for any one else to give the notice because the undisputed record shows that the beneficiaries had no knowledge that the insured had taken out the policy; in fact, no one knew anything about the issuing of the policy with the exception of the insurance company and the unfortunate insured. Third. The insured was totally and permanently disabled from February 17, 1929, to the date of his death. Fourth. The policy provided for the waiver of premium and the payment of $10 per month during total and permanent disability.
The controversy in the case at bar is one as to which the courts of the country are arrayed in opposing camps. In the case of Johnson v. Mutual Life Insurance Co. of New York, reported in 70 F.2d 41, the Circuit Court of Appeals for the Fourth Circuit was confronted with the very question involved in the case at bar, and in a very able opinion it reviews the leading cases of the country. In that opinion the court said, at pages 44 and 45:
"There remains the question whether the case should have been submitted to the jury with instructions that the insured's failure to furnish proof of disability to the company before default was excused, if the jury should find from the evidence a mental or physical incapacity of the insured, which rendered it impossible for him to make the proof. It is strongly urged by the defendant that such an excuse is ineffectual in view of the clear and unequivocal language of the present policy. It is said that most of the cases which uphold the excuse, where the impossibility of furnishing proofs is shown, are cases involving policies of accident or fire insurance, in which some language may be found in the condition to indicate that the furnishing of proofs is required only when it is reasonably possible to furnish them. Stress is furthermore placed upon the fact that the condition of the policy in the present case is a condition precedent, and that in some of the cited cases the condition is regarded as subsequent.
"It must be conceded that the position of the defendant finds support in cases from two jurisdictions. New England Mutual Life Ins. Co. v. Reynolds, 217 Ala. 307, 116 So. 151, 59 A.L.R. 1075; Whiteside v. North American Acc. Ins. Co., 200 N.Y. 320, 93 N.E. 948, 35 L.R.A. (N.S.) 696. An overwhelming majority of the state courts that have passed upon the matter have, however, laid down the rule that a condition precedent requiring notice or proof *Page 519
of disability is excused where its performance is impossible by reason of the physical or mental incapacity of the insured, as where the insured is insane or unconscious during the period when proof should have been furnished, and that the condition may be performed within a reasonable time after the incapacity is removed. Swann v. Atlantic Life Ins. Co., 156 Va. 852,159 S.E. 192; Rhyne v. Jefferson Standard L. Ins. Co., 196 N.C. 717,147 S.E. 6; Id., 199 N.C. 419, 154 S.E. 749; Levan v. Metropolitan Life Ins. Co., 138 S.C. 253, 136 S.E. 304; Roseberry v. American Benev. Ass'n., 142 Mo. App. 552, 121 S.W. 785; Continental Casualty Co. v. Mathis, 150 Ky. 477, 150 S.W. 507; Comstock v. Fraternal Acc. Ass'n. of America, 116 Wis. 382, 93 N.W. 22; Reed v. Loyal Protective Ass'n., 154 Mich. 161, 117 N.W. 600; Woodmen Acc. Ass'n. v. Pratt, 62 Neb. 673, 87 N.W. 546, 55 L.R.A. 291, 89 Am. St. Rep. 777; and see 54 A.L.R. 611, note. The same rule has been applied in two further cases, which seem to place some reliance upon a view that the particular condition involved was a condition subsequent. Pfeiffer v. Missouri St. L. Ins. Co.,174 Ark. 783, 297 S.W. 847, 54 A.L.R. 600; North American Acc. Ins. Co. v. Watson, 6 Ga. App. 193, 64 S.E. 693. Of these cases, the first three, the Swann, Rhyne, and Levan cases, and also the Pfeiffer case, involved life insurance policies with provisions for disability benefits similar in all pertinent respects to the provision here. And, although the remaining cases involve accident policies, in none of them does it appear that there was any language in the condition indicative of an intention that proof should be required only where it could reasonably be furnished. Compare Metropolitan Casualty Ins. Co. v. Johnston (C.C.A.), 247 F. 65.
"We think the rule announced by the majority of the state courts is the sound rule to apply. The situation is one where the parties may fairly be said to have contemplated a capacity to make the proof when disability should arise, for otherwise such a contract may prove a trap for the unwary by imposing conditions which incapacity may render it impossible to perform. There is, it is true, no language in the condition which qualifies it in the event that its performance should become impossible; but it is a general rule in the law of contracts, that impossibility may excuse a condition, though a condition precedent, if the existence or occurrence of the condition is no material part of the exchange for the *Page 520
promisor's performance, and the discharge of the promisor will operate as a forfeiture. Restatement of Contracts, section 301; and see Illustrative Case (4). See, also, Williston on Contracts, vol. 2, section 806. This principle, furthermore, has received recognition by the Supreme Court in Insurance Companies v. Boykin, 12 Wall. 433, 436, 20 L. Ed. 442, where failure to perform a provision requiring proof of loss in a fire insurance policy was held to be excused by the insanity of the insured, the court saying that `* * * if he was so insane as to be incapable of making an intelligent statement (of the time, nature and amount of the loss), this would of itself excuse that condition of the policy.'"
It seems to us that a fair rule to follow is the one announced in the above-cited case. The insurance company received the premium which it said was sufficient to pay the insured the amounts provided in the policy in case disability occurred. Disability did occur. It occurred while the policy was in full force and effect, the premium having been paid. There is no question in this case of the liability of the insurance company or of its obligation to pay. Its only defense is, "You didn't give notice". But who could have given notice? The insured? He was mentally unable to do so. No one else knew of the issuance of the policy. The beneficiaries had no knowledge. It might be very reasonable for a company to provide that it would waive premium payments only upon notice or proof of disability when the insured is capable of giving such notice, but it is an entirely different question to assume that the insurance company would contract with the insured that he would be relieved of paying premiums if he gave notice of his disability, notwithstanding the fact that he is unable to do so. It is the incapacity of the insured which makes it positive that no such requirement was in the contemplation of the parties.
In the case at bar, in consideration of the premium which the insured paid, the insurance company agreed to pay the insured $10 per month if he should become insane, and waive further premiums. While his policy was in full force and effect, he unfortunately became insane. Being insane, he gave no notice of his disability prior to July 28, 1929, when the next premium became due. The policy provided that upon receipt at the company's home office, before default in payment of premium, of due proof that the insured was totally disabled, the company would pay him $10 per month and waive further premiums. This condition in regard to the *Page 521
notice was no material part of the exchange for the promisor's performance. The insured had paid his premium exacted by the insurance company for its promise to pay him $10 per month, and while his premium was not in default he became insane, and by reason of that fact the insurance company became liable to pay him $10 per month and waive further premiums. That part of the contract which required the insured to give notice of his insanity was impossible to be performed because of the insanity of the insured, the very thing insured against. And therefore he was excused from giving notice.
It must be kept in mind that it is the general rule, of practically universal application, that forfeitures are not favored in this country, and that insurance contracts will be construed most strongly against the insurer. There can be no doubt that the New York Life Insurance Company knew when it wrote the policy which it issued to the insured, Raymond E. McCoy in this case, if the insured became insane he could not give notice. Where it is impossible, as it was in this case, to give notice, it may be fairly said that the insurance company contemplated that no notice would be given. Disability having occurred while the policy was in full force and effect, it being impossible for the insured to give the notice, the New York Life Insurance Company is liable on the policy which it wrote and for which it received the premium it demanded.
But, the appellee says, the case at bar is controlled by the case of Fairgrave v. Illinois Bankers Life Ass'n., 211 Iowa 329, 233 N.W. 714. With this we cannot agree. In the Fairgrave case the beneficiaries had knowledge of the policy and of the disability of the insured and did not give notice within the ninety-day period provided by the policy. It was not shown to have been impossible to give the notice required by the policy. In the case at bar it is conclusively shown that it was impossible to give the notice required by the policy.
The judgment of the lower court must be, and it is hereby, reversed, and this cause remanded.
ANDERSON, C.J., and KINTZINGER, POWERS, PARSONS, and HAMILTON, JJ., concur. *Page 522 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211993/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
START TO FINISH RESTORATION, )
LLC, a/a/o HERBERT WILLIAMS, )
)
Appellant, )
)
v. ) Case No. 2D15-2206
)
HOMEOWNERS CHOICE PROPERTY )
& CASUALTY INSURANCE COMPANY, )
INC., )
Appellee. )
)
Opinion filed June 10, 2016.
Appeal from the Circuit Court for Manatee
County; Gilbert A. Smith, Jr., Judge.
Susan W. Fox and Heather M. Kolinsky of
Fox & Loquasto, P.A., Orlando; and
Thomas Managhan and Natisha Quijano of
Cohen Battisti, Winter Park, for Appellant.
Andrew A. Labbe of Groelle & Salmon,
P.A., Tampa, for Appellee.
LUCAS, Judge.
Start to Finish Restoration, LLC appeals the entry of a final summary
judgment on its claim against Homeowners Choice Property & Casualty Insurance
Company, Inc. At the time of its ruling, the circuit court did not have the benefit of our
decision in Bioscience West, Inc. v. Gulfstream Property & Casualty Insurance Co., 185
So. 3d 638 (Fla. 2d DCA 2016). Based on Bioscience West, we reverse the circuit
court's entry of summary judgment.
Herbert Williams hired Start to Finish to repair his home, which had
sustained water damage. As part of the engagement, Mr. Williams executed an
assignment of insurance benefits in favor of Start to Finish concerning certain benefits
Mr. Williams had under a homeowner's insurance policy issued by Homeowners
Choice. When a disagreement arose between Start to Finish and Homeowners Choice
regarding the payment of those benefits, Start to Finish filed a complaint, as the
assignee of Mr. Williams, against Homeowners Choice. The circuit court was
apparently persuaded by Homeowners Choice's arguments that the assignment of
benefits between Mr. Williams and Start to Finish was unlawful or otherwise improper to
confer standing on Start to Finish and entered summary judgment against Start to
Finish. Start to Finish timely initiated this appeal.
In urging us to affirm the circuit court's judgment, Homeowners Choice
raises many of the same arguments about the purported invalidity of this assignment of
benefits that we rejected in Bioscience West.1 In Bioscience West, we construed a
1 In addition to the points we addressed in Bioscience West, Homeowners
Choice also argues that the assignment of benefits should be deemed invalid as a
purported "partial" assignment of a claim against a third party debtor made without the
third party's consent, citing Space Coast Credit Union v. Walt Disney World Co., 483
So. 2d 35, 36 (Fla. 5th DCA 1986) ("[I]f the assignment is partial only, it cannot be
enforced against the debtor, or the employer, without his consent, or the joinder in an
equitable proceeding of all persons entitled to the various parts of the total debt."). We
suspect the holding in Space Coast would likely be subsumed in this context by
Florida's longstanding precedent that insurance policy benefits are freely assignable,
-2-
similar assignment under practically the same circumstances and reiterated "that post-
loss insurance claims are freely assignable without the consent of the insurer." 185 So.
3d at 643 (citing Sec. First Ins. Co. v. State, Office of Ins. Regulation, 177 So. 3d 627,
628 (Fla. 1st DCA 2015)). Homeowners Choice has not shown how this case is
distinguishable from Bioscience West in any meaningful way. Accordingly, we reverse
the summary judgment entered against Start to Finish and remand this case for further
proceedings.
Reversed and remanded.
VILLANTI, C.J., and SILBERMAN, J., Concur.
even without the insurer's consent. Cf. Bioscience West, 185 So. 3d at 642-43 (noting
that "Florida case law yields deep-rooted support for the conclusion that post-loss
assignments do not require an insurer's consent"); One Call Prop. Servs., Inc. v. Sec.
First Ins. Co., 165 So. 3d 749, 753 (Fla. 4th DCA 2015) ("Even when an insurance
policy contains a provision barring assignment of the policy, an insured may assign a
post-loss claim." (citing W. Fla. Grocery Co. v. Teutonia Fire Ins. Co., 77 So. 209, 210-
11 (Fla. 1917))); Lexington Ins. Co. v. Simkins Indus., Inc., 704 So. 2d 1384, 1386 n.3
(Fla. 1998); Accident Cleaners, Inc. v. Universal Ins. Co., 186 So. 3d 1, 2 (Fla. 5th DCA
2015); Citizens Prop. Ins. Corp. v. Ifergane, 114 So. 3d 190, 195 (Fla. 3d DCA 2012);
Better Constr., Inc. v. Nat'l Union Fire Ins. Co., 651 So. 2d 141, 142 (Fla. 3d DCA 1995);
Gisela Invs., N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056, 1057 (Fla. 3d DCA 1984).
But we need not decide that issue. Homeowners Choice provided no evidence before
the circuit court that Mr. Williams actually assigned any part of his policy benefits to any
entity other than Start to Finish or retained any part of the assigned benefits for himself.
On this record, then, we cannot, and therefore do not, reach the merits of this argument.
Cf. Betancourt v. Sears Roebuck & Co., 693 So. 2d 680, 683 (Fla. 1st DCA 1997) ( "[I]n
regard to cases involving claims that are ripe for adjudication at the time of the hearing,
for which claimant failed to produce evidence or obtain a ruling, this court will consider
the claim abandoned and the issue waived . . . .").
-3- | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031292/ | THE THIRTEENTH COURT OF APPEALS
13-15-00611-CR
The State of Texas
v.
Kenneth Lee Cooley Jr.
On appeal from the
377th District Court of Victoria County, Texas
Trial Cause No. 15-10-28984-D
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be reversed and the cause
remanded to the trial court. The Court orders the judgment of the trial court
REVERSED and REMANDED for further proceedings in accordance with its opinion.
We further order this decision certified below for observance.
September 1, 2016 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430807/ | Since both parties to this cause rely greatly on the case of Witmer v. Polk County, 222 Iowa 1075, 270 N.W. 323, we may shorten this opinion by a reference to that.
Defendant-appellant claims that the case is not controlling because of its differences from the one at bar. Appellees, on the contrary, insist that its effect is conclusive against the contentions of appellant. We have examined and re-examined this opinion and are satisfied that there is nothing therein which sustains the decree in the instant case. Since the Witmer case speaks for itself we are under no necessity of examining it at length. That decision was based upon the same sale the validity of which is here assailed. Therein this court, by Mitchell, J., refused to quiet the title of Witmer against the alleged invalid sale for some of the reasons urged here and others which need not now be considered.
These facts, we think, are sufficient to distinguish the Witmer case from the one we are called on here to decide. In that case the plaintiff brought an action to cancel certain delinquent taxes against real estate of which she was the owner. She asked the trial court to enjoin the defendants, Polk County and others, from taking or attempting to take a tax deed to said property. She challenged the constitutionality of the so-called public *Page 1334
bidder law. On that proposition it was argued that the enactment of the law, in its progress through the legislature, failed to meet constitutional requirements. This claim that opinion rejected.
[1] In the case before us appellant, Mrs. Cain, was only a mortgagee at the time these taxes were levied, under no personal or legal obligation to pay them. She acquired title after the tax sale by taking from her mortgagor a deed in satisfaction of the debt, paying apparently some further consideration which need not be stated. It must be assumed, we think, in the absence of proof to the contrary, that appellant paid the taxes properly levied against her mortgage. In so doing she discharged every obligation she then owed the public. She makes no question of her duty to pay taxes on the real estate since she acquired the title.
Appellant is the holder of the legal title and in this action asks nothing but that she be undisturbed in her possession until someone with a superior title appears to dispossess her. No affirmative relief is asked.
She challenges plaintiff-appellee's right under the record here to sue to quiet as against her, and in this contention we are satisfied that she is right; and the Witmer case is no authority for holding to the contrary. Aside from the decision on the constitutional question already referred to, the Witmer case decides only that a person who has failed to pay or tender the taxes for which he was liable may not maintain an action to quiet title or to set aside a tax sale or levy without tendering or paying the amount actually due. An examination of the citations and the language of that decision will show that Mitchell, J., over and over again, puts forward the thought that the owner must pay the taxes legally assessed against his property as a condition precedent to setting aside a deed in an action brought by him.
The idea is emphasized in that opinion (222 Iowa 1075, at page 1078, 270 N.W. 323, 325) in language quoted from Gardner v. Early, 69 Iowa 42, 28 N.W. 427, as follows:
"`In discussing this question it will be assumed that the taxes at the time of the sale had ceased to be a lien, but it does not follow that, against the owner, no lien could be subsequently acquired by bringing forward the taxes, and entering them in *Page 1335
the tax-book for some subsequent year. Be this as it may, the failure to bring forward the taxes clearly did not amount to payment; and, this being so, the owner remained liable to pay thesame to the county, and such liability without doubt could have been enforced.'" (Italics ours.)
Quoting further from the Gardner case, this appears:
"`The sale and deed, however, are invalid, but the purchaser has discharged a debt which the owner was bound to pay.'"
Other parts of the quotation emphasize the difference between the Witmer case and this, as will a reading of the other cases cited by Mitchell, J.
This court in that opinion proceeds then to state (222 Iowa 1075, at page 1080, 270 N.W. 323, 326):
"Being the owner of the property, it was her duty to pay the taxes. They were her obligation. The taxes levied were duly levied for the purpose of carrying on the various agencies and branches of government. Continuation of our school system, of our law-enforcing bodies, of the very government itself, depends upon the payment of taxes by those who own property. Appellant is not making this claim as a defense in a suit brought by the county or any other purchaser against her, but has come into a court of equity, asking affirmative relief and asking that because of the failure of the county treasurer to do what the law requires him to do she be relieved from paying taxes properly levied. * * * No third party or innocent purchaser is here involved. The one whois seeking the relief is the one who owes the taxes. Before she is entitled to this relief she must do equity. She must offer to pay or tender the taxes, and until that is done equity will not set aside the tax sale." (Italics again inserted.)
What has been said would seem to be sufficient to indicate the difference between the situation of the plaintiff in the Witmer case and that of appellant here. Further discussion of that would seem to be unnecessary.
But appellees argue that the conclusive character which the statute attributes to tax deeds forbids any investigation of the validity of the proceedings antecedent to its issuance. We *Page 1336
are not disposed to adopt the rule that one in appellant's position may not contest the validity of a tax deed without tendering the amount in controversy. We are not deciding any constitutional question suggested by this record. Plaintiff-appellee says appellant may not appeal to the courts without paying or tendering the taxes for which it is claimed this property was sold. This is a proposition with which we do not agree. Reduced to its elementals, it means only this: the defendant summoned to appear by the plaintiff may not enter the temple of justice without first paying or offering to pay the very matter in controversy; or if he has been admitted he may not plead his cause until he takes the same course. If he pays he has nothing to contend for. If he offers to pay and his adversary accepts the tender, he is, in effect, told that there is nothing to litigate. It seems to the writer of this opinion that a bare statement of such a proposition is its own answer.
It was urged in the Witmer case that the sale was invalid because delinquent taxes under which the property was sold were not carried forward upon the tax list; also that the sale was invalid because the attempted adjournments of the sale were not legal and were void. Both of these propositions were expressly excluded from consideration in sustaining the decision of the trial court.
[2] We are therefore called upon to inquire whether, in the instant case, the taxes were carried forward as required by law; and if they were not, what was the legal effect of such failure. That the delinquent taxes were not brought forward is, to our minds, abundantly proven, if not actually conceded by appellees. There is some matter in the record which could have been offered by defendant-appellees as an excuse for this failure, to wit, that the press of work in entering and bringing forward taxes for different reasons was so great as to make it utterly impossible for the treasurer's force in Polk county to complete the bringing forward of the list as required. We cannot admit that this is an excuse for failure to comply with the provisions of section 7193 of the Code, which reads as follows:
"The treasurer shall each year, upon receiving the tax list, enter upon the same in separate columns opposite each parcel of real estate on which the tax remains unpaid for any previous year, the amount of such unpaid tax, and unless such delinquent *Page 1337
real estate tax is so brought forward and entered it shall cease to be a lien upon the real estate upon which the same was levied, and upon any other real estate of the owner. But to preserve such lien it shall only be necessary to enter such tax, as aforesaid, opposite any tract upon which it was a lien. Any sale for the whole or any part of such delinquent tax not so entered shall be invalid."
[3] If we open the door to any such practice it is not difficult to imagine how easy an avoidance of the requirements of the statute would be. We have said in the past that public officers are as much bound by the statutes as are the common citizens who must bear the burdens of taxation. We have no disposition to encourage an escape from the taxes necessary to sustain our state and national governments, with the various agencies which they employ; and so far as it can be done within the limits of the power conferred by the legislature, we will lend our aid to the collection of the revenues upon which the state must depend. But here we find no compliance with the statute, and we may not disregard the command of the legislature thus expressed in the last-cited section of the Code:
"* * * unless such delinquent real estate tax is so brought forward and entered it shall cease to be a lien upon the real estate upon which the same was levied, * * * Any sale for the whole or any part of such delinquent tax not so entered shall be invalid."
As bearing on this question, see, Wallace v. Gilmore, 216 Iowa 1070,250 N.W. 105; Schoenwetter v. Oxley, 213 Iowa 528,239 N.W. 118.
This view of the statute makes it unnecessary for us to consider appellant's claim that the purported tax sale and deed issued under it were invalid for the reason that the county treasurer, without statutory authority, adjourned the sale time after time, from January 7 to May 6, 1935, having offered none of the property for sale before making these various adjournments. It may not be out of place, however, to suggest, without deciding, that such a practice offers so many opportunities to inflict injustice upon property owners that it should not be encouraged. If the treasurer may, from time to time and without giving opportunity to the public to bid, adjourn without restraint to *Page 1338
other dates, prospective buyers might well become discouraged and refuse further to attend at adjourned dates.
Plaintiff-appellee says in his reply that: "* * * the lien of the delinquent general tax for which the property described in plaintiff's petition was sold was never lost and that therefore the sale was valid." Without deciding this question now, we are disposed to accept this claim for the purpose of this case. If it be sound, the state and its municipal subdivision will suffer no loss, although it might require another sale in compliance with the statutory provisions. General taxes against this lot 37 were all that were involved in this sale. This no one really disputes, although the inference may be drawn from the record that the special assessments sustain the tax deed.
We are under no necessity of deciding, and we do not do so, the question as to what the status of the special assessment is; and we are therefore not called upon to determine the effect of section 7193-d5 of the Code of 1931. It is a rule of law so familiar as to require no citation of authority to sustain it that one who seeks to quiet title must succeed on the strength of his own title rather than upon the weakness of that of his adversary. Having seen that this sale was made on an assessment the lien of which was lost by reason of the failure to bring forward delinquent taxes, plaintiff-appellee's title failed, without reference to the strength or weakness of appellant's title.
We have not overlooked the suggestion of appellees that we pass this question to the Supreme Court of the United States, where, as they claim, appellant is planning to go. We decline to accept the invitation, or to avoid the responsibility imposed upon us by this appeal, even at the risk that the federal court may hold that the writer of this opinion has misconceived the law.
We have not overlooked appellant's contention that the burden of proof was upon the plaintiff-appellee and that officers of the law are presumed to have discharged their duties in accordance with the law.
Other arguments are put forward by appellees, all of which have been considered. These are disposed of by what has already been said.
It follows that the decision of the trial court is reversed. — Reversed.
DONEGAN, MITCHELL, KINTZINGER, and HAMILTON, JJ., concur. *Page 1339 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430808/ | For some time prior to the accident resulting in his death, Reuben L. Bolon delivered coal to various customers for John W. Amond, using his own team and wagon, and receiving 80 cents per ton for his services. The orders for coal were received at Amond's office, and a duplicate weigh check given to Bolon, with directions as to the bin from which the coal *Page 307
to be delivered was to be taken, and the name and residence of the customer to whom delivery was to be made. On or about October 6, 1924, after completing his deliveries for the day, Bolon and his father, who was assisting him, returned home, and, while he was engaged in unhitching and watering the horses, the accident resulting in the former's death occurred. The senior Bolon testified that the accident occurred about fifteen minutes after the last delivery of coal was completed, and while he was pumping water for the team. He testified that it was the custom of deceased to unhitch the off horse first, and let it go to the tank for water; but that, on the evening in question, he commenced on the other side, and unhitched three tugs, and put them up. He apparently forgot to unhitch the remaining tug, but removed the horse's bridle. Observing that the tug was not unhitched, and that the horse had started to the tank, he tried to stop him; but the wagon box touched and scared the horse, causing him to jump across the tug, jerking the wagon, and knocking the deceased down. While he was down, the horse stepped upon him, inflicting the injuries from which he died the following morning.
Amond neglected to take liability insurance, and this action is based upon a common-law liability for negligence, as modified by the Workmen's Compensation Act. Section 1467, Code of 1924. We shall consider but one of the grounds relied upon by appellant for reversal, namely that Bolon was an independent contractor, and not an employee. The term "employee" is defined by Section 1421 of the Code of 1924 as:
"A person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer, except as hereinafter specified."
The statutes of this state do not, as do the statutes in some other jurisdictions, define an independent contractor; but Section 1421 provides that an independent contractor shall not be deemed a workman or employee, within the meaning of the act. The meaning of the term "independent contractor" has been many times judicially determined. A large number of these definitions are collected in the annotation following Nichols v. Hubbell, 19 A.L.R. 221. Likewise, various tests have been applied by the courts of this country for determining, under the facts of a given case, whether the claimant was an employee or *Page 308
an independent contractor. Among these various tests are the right to control and direct the work of the person employed; the right to terminate the relationship at will, without involving liability for the breach of the contract; the nature of work contracted for; the right of a teamster to employ substitutes; the mode of making compensation; the furnishing by the claimant of teams, wagons, tools, and the instrumentalities with which the services are performed; control over hours of work; and other pertinent tests. These tests are also discussed in the annotation following Re Dobson, 42 A.L.R. 603.
Looking to our own cases, we find that the test quite uniformly applied in this state is: Does the employee represent the master as to the result of the work only, or as to the means by which the result is obtained? If as to the result, and in the employment of the means he acts entirely independently of the master, he must be regarded as an independent contractor.Overhouser v. American Cereal Co., 118 Iowa 417. In all of the cases decided by this court, particular emphasis has been given to the right of the employer to dictate and control the manner, means, and details of performing the services. Hoff v. Shockley,122 Iowa 720; Humpton v. Unterkircher Sons, 97 Iowa 509; Millerv. Minnesota N.W.R. Co., 76 Iowa 655; Parrott v. Chicago G.W.R.Co., 127 Iowa 419; Francis v. Johnson, 127 Iowa 391. The foregoing tests appear to us as the more logical and satisfactory. Unless the employer has the right to direct the means and manner of doing the work, and has the right of control over the employee, the doctrine of respondeat superior is not applicable. Callahan v. Burlington M.R.R. Co., 23 Iowa 562. An essential element of this doctrine is the right of control by the master or employer over the servant or employee. Brown v.McLeish, 71 Iowa 381; Kellogg v. Payne, 21 Iowa 575. The tests suggested have been applied in numerous decisions of this court involving the Workmen's Compensation Act. In each of these cases, the determinative question was: Did the employer have the right to direct the workman as to the manner and means of doing the work: that is, did he exercise control over him as to the means employed and manner of rendering the services? Pace v. AppanooseCounty, 184 Iowa 498; Knudson v. Jackson, 191 Iowa 947; Franks v.Carpenter, 192 Iowa 1398; Root v. Shadbolt Middleton, 195 Iowa 1225; Svoboda v. Western *Page 309 Fuel Co., 195 Iowa 1137; Norton v. Day Coal Co., 192 Iowa 160.
The decisions in other jurisdictions are not entirely in harmony with the rule announced by this court, but all courts recognize the reserved right of the employer to control the method and means of doing the work, rather than merely the result, as factors to be considered in determining whether the claimant was an employee or an independent contractor. Many of the cases hereafter cited involve the claims of teamsters. We do not deem it necessary to classify or review the decisions from other jurisdictions, but cite them as illustrations of the application of the rules enumerated, and as supporting our own decisions. Harmon v. Ferguson Contracting Co., 159 N.C. 22
(74 S.E. 632); Barton v. Studebaker Corporation of America, 46 Cal. App. 707
(189 P. 1025); Industrial Commission v. Hammond,77 Colo. 414 (236 P. 1006); Burt v. Davis-Wood Lbr. Co.,157 La. 111 (102 So. 87); Thompson v. Twiss, 90 Conn. 444 (97 A. 328);Gallagher's Case, 240 Mass. 455 (134 N.E. 344); Winslow's Case,232 Mass. 458 (122 N.E. 561); Towne's Case, (Mass.) 150 N.E. 157;Industrial Commission v. Bonfils, 78 Colo. 306 (241 P. 735);Warner v. Fullerton-Powell Hardwood Lbr. Co., 231 Mich. 328
(204 N.W. 107); Bristol Gale Co. v. Industrial Commission, 292 Ill. 16
(126 N.E. 599); Kelley's Dependents v. Hoosac Lbr. Co., 95 Vt. 50
(113 A. 818); Hector v. Cadillac Plumbing Heating Co.,226 Mich. 496 (198 N.W. 211); Johnson v. State Highway Commission
(Me.), 134 A. 564.
When the foregoing test is applied to the facts of this case, it is quite clear that the deceased was an independent contractor, and not an employee; therefore, Svoboda v. WesternFuel Co., supra, and Norton v. Day Coal Co., supra, are controlling. Deceased owned a team, wagon, harness, and all the necessary equipment for performing services in the city of Fort Dodge as a teamster. Amond, who was engaged in selling coal, had frequently employed the deceased to haul coal from cars to his bins for storage, as well as to deliver coal from the bins to customers in various parts of the city. His compensation for hauling coal from the cars to the bins was 20 cents per ton, and from the bins to customers throughout the city 80 cents per ton. The employment was not steady, and was limited to such time as Amond had *Page 310
coal to be hauled, which was most of the time. When not engaged with his team and wagon in hauling or delivering coal for Amond, he was employed with his team by others, to perform various services. The only control exercised by Amond over the deceased was to designate the bin or car from which coal was to be taken, and to whom to be delivered. The deceased selected his own route, his hours of work, and the method and means of doing it. Occasionally, his father, at his request or voluntarily, assisted him. The deceased generally earned his living by the use of his team and wagon, and, as expressed by his father on the witness stand, "He was a free lance, working with his team, hauling for anybody he could get work with." Payment was made every Saturday night for the work performed during the week. Not only did he own the team, wagon, and harness, but he kept them upon his own premises, supplied feed therefor, and made all necessary repairs at his own expense.
It must, of course, be conceded that, if deceased was an independent contractor, and not an employee, it was incumbent upon appellee to allege and prove negligence, as in any other action to recover damages upon a common-law liability; and Section 1379 of the Code of 1924 has no application. Judgment is, accordingly, reversed. — Reversed.
De GRAFF, C.J., and EVANS and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430811/ | The parties to this action are each approximately 55 years of age. They were married in 1895. Prior to the marriage, appellee was employed as a domestic in the home of the mother of appellant. After the marriage, the parties lived on different farms until they acquired one of their own, where they still live. Eight children have been born to the marriage, all of whom are living, except a son who died during the late war. The ages of the living children range from 9 to 28 years. Appellant bases his claim for divorce solely on the ground of cruel and inhuman treatment. Appellant weighs about 130 pounds, and appellee about 175 pounds. The marital difficulties originated some 8 or 9 years ago. The record contains a recital of numerous instances of trouble between these parties during that period of time. No useful purpose would be *Page 780
served by setting out in detail the facts and circumstances surrounding these troubles. We have examined the entire record with care. It appears that neither party has been an active adherent to any religious faith. Appellant's father was a German Lutheran, but appellant has not been a member of any church, nor a regular attendant upon church services. On the other hand, appellee was born in a Catholic family, but we gather from the record that she was not an active communicant of that faith. One serious clash between the parties, however, appears to have been over the matter of the burial of the deceased son who died in service. At the time his body was brought home for burial, a question arose as to whether it should be buried in a Protestant cemetery or in a Catholic cemetery, appellee at that time insisting that the burial should be in the Catholic cemetery. Appellee's wishes prevailed, and the body was buried in the portion of the Catholic cemetery where unbaptized infants and noncommunicants are buried. From that time on, there appear to have been frequent discussions that often materialized into actual quarrels. Appellant made slighting remarks about the Catholic religion and the local priest; while, on the other hand, appellee cast reflections upon the Masonic lodge and appellant as a member thereof. These verbal battles may not improperly be designated to have terminated in "a draw." There is no question but that a spirit of contention and nagging, fault-finding and criticism, took possession of the heads of this household. Appellant was on the school board, and appellee unjustly accused him of intimacy with the school-teacher; while, on the other hand, appellant, while away from home, wrote letters to appellee that were obviously intended for no other purpose than to tantalize and annoy her and to make her jealous. There is evidence that appellee, on one occasion at least, used violence, and struck and beat appellant, who is scarcely her equal in a physical encounter. One trouble between the parties arose over the building of a new house, appellant desiring to build a more modest and inexpensive home than suited the tastes and ambitions of appellee. The result, however, was the construction of a farmhouse of sixteen rooms, constructed substantially in accordance with the wishes of appellee. Some time ago, the parties ceased to occupy the same room, appellant sleeping in what *Page 781
is referred to as the "northeast room" of the house. Appellant was doubtless a believer in the biblical admonition that "it is better to dwell in the corner of a housetop than with a contentious woman in a wide house." Proverbs 21:9. During all of these difficulties, however, the parties have lived under the same roof, and have eaten at the same table, and appellee has done the housework, including the cooking and the washing, and there is no complaint of the manner in which the same has been done, — in fact, the evidence shows that she has been and is a good housekeeper. We are satisfied from the record that appellee is a woman of quick temper, and was not delicate in the use of language. Appellant is corroborated in his contention that she applied opprobrious epithets to him, some of which unduly reflected upon his maternal ancestor. There may be some excuse for the irritability of appellee because of the period of life through which she was passing. It is unnecessary that we recite the details of the quarrels between these parties, ranging all the way from the matter of feeding corn to young stock and contentions over a mislaid book and some magazines, to accusations of unchastity and infidelity. Appellant contends that, as a result of the treatment he has received from his wife, he has become nervous and sleepless, and that his health has been impaired and his life endangered. We are deeply impressed with the fact that six of the seven living children of these parties were witnesses in behalf of appellant. There is no doubt that this home is an unhappy one, and that appellant and appellee have become estranged and embittered toward each other. Under the laws that govern domestic relations in this commonwealth, divorces cannot be granted for incompatibility, or because the parties to the marriage relation are unable to agree or to dwell together happily. Cruel and inhuman treatment that will justify a court in severing the bonds of matrimony must be of such a character as to not only impair the health but to endanger the life of the complaining party. We are convinced from an examination of the record in this case that the treatment of appellant by appellee does not rise to that character which would justify a court in granting appellant a divorce on the ground that such treatment has impaired his health and endangered his life. We are disposed to concur in the conclusion of the trial *Page 782
court that appellant failed to establish the allegations of his petition so as to entitle him to a divorce from appellee. No two cases are alike in their facts, but, as bearing somewhat upon our conclusion, see Knight v. Knight, 31 Iowa 451; Owen v. Owen,90 Iowa 365; Blair v. Blair, 106 Iowa 269; Sylvester v. Sylvester,109 Iowa 401; Wells v. Wells, 116 Iowa 59; Olson v. Olson,130 Iowa 353; Coffin v. Coffin, 155 Iowa 574; Hall v. Hall, 162 Iowa 653; Layton v. Layton, 166 Iowa 74; Young v. Young, 173 Iowa 424;Chapman v. Chapman, 181 Iowa 801; Naumann v. Naumann, 182 Iowa 420; Yetley v. Yetley, 196 Iowa 314.
It follows that the decree of the trial court must be, and it is, — Affirmed.
EVANS, ALBERT, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430815/ | DISSENT: Stiger and Mitchell, JJ.
This suit is brought to determine whether or not the plaintiff, J.B. Tusant, is entitled to the office of city assessor of Des Moines, under the provisions of chapter 60, Code of 1939. An appeal was brought by plaintiff in the district court of Polk county to review the action of the three taxing bodies — the City Council of the City of Des Moines, Board of Supervisors of Polk County, and the School Board of the Independent School District of Des Moines — in the matter of the appointment of the defendant Bert L. Zuver to the office of assessor under the provisions of chapters 202 and 203 (being S.F. 3, as amended by S.F. 286), Acts of the Forty-ninth General Assembly.
It is not disputed that plaintiff is an honorably discharged sailor, as required by said chapter 60 when preference is claimed thereunder. He claims that as such he is entitled to the office, and that the above three taxing bodies acting as an appointing body, constituted as such under the said chapter 202 as amended, acted illegally in appointing Bert L. Zuver as city assessor, for the reason that they failed and refused to comply with the provisions of the soldiers' preference law (said Code chapter 60). To this complaint the defendants Zuver and the Board of Supervisors demurred on the ground that the soldiers' preference law is not applicable to the position of city assessor of the City of Des Moines. This demurrer was overruled; defendants Zuver and the Board of Supervisors elected to stand on their demurrer, and the cause was remanded by the court to the appointing board; from this ruling these defendants have appealed. Plaintiff Tusant also perfected an appeal on the ground that the district court, instead of remanding, should have entered an order directing his appointment as said assessor. This will be referred to later.
The first error complained of is the overruling of grounds 1 and 3 of the demurrer which assailed the complaint (notice of appeal) for the reasons: (1) that the soldiers' preference law does not apply to the head of a department where said head of a department is vested with discretion and is not subject to direction, supervision, or control of the appointing body or anyone else; that the office of city assessor is an office or department of which the assessor is the head, and that in the exercise of his duties as such he is vested with powers of a *Page 118
judicial, quasi-judicial, and discretionary nature, requiring the exercise of judgment and discretion in the performance thereof; that he is vested with the power to appoint deputies, and with the powers and duties usually vested in the head of such department and that therefore the office of assessor does not come within the provisions of the soldiers' preference act as set out in chapter 60, Code of 1939, and that the plaintiff is not therefore entitled to preference; (2) that the court has no jurisdiction of the subject matter of this appeal in that the soldiers' preference act is not applicable to the head of an office, vested with discretion and subject to no supervision, direction, or control of the appointing body or anyone else. The other error complained of, and discussed hereafter, is the overruling of ground 2 of the demurrer, which sets out that the provisions of S.F. 3 as amended are in conflict with and repugnant to the provisions of the soldiers' preference act.
From the foregoing statement it will be seen that the question for our consideration on this appeal is whether or not the soldiers' preference law (chapter 60, Code of 1939) is applicable to the appointment of a city assessor provided for in chapter 202 as amended, Acts of the Forty-ninth General Assembly. Chapter 60, Code of 1939, contains sections 1159 to 1165, inclusive, section 1159 being as follows:
"In every public department and upon all public works in the state, and of the counties, cities, towns, and school boards thereof, including those of cities acting under special charters, honorably discharged soldiers, sailors, marines, and nurses from the army and navy of the United States in the late civil war, Spanish-American war, Philippine insurrection, China relief expedition, or war with Germany, who are citizens and residents of this state, shall, except in the position of school teachers, be entitled to preference in appointment, employment, and promotion over other applicants of no greater qualifications."
Section 1162.1 provides for appeal to the district court from any refusal to allow such preference to any person entitled thereto. Chapter 202 of the Acts of the Forty-ninth General Assembly, which became effective by publication February 20, 1941, prescribes the method of selection of a city *Page 119
assessor in cities having a population in excess of 125,000. The material parts of such statute are as follows:
"Section 1. Within thirty (30) days from the taking effect of this Act, in cities having more than one hundred twenty-five thousand (125,000) population, the city council, the school board and the county board of supervisors each shall appoint at a regular meeting by a majority vote of the members present, one qualified person to serve as a member of an examining board to give an examination for the positions of city assessor and deputy assessors. This examining board shall organize as soon as possible after its appointment, with a chairman and secretary. * * *
"Section 3. Not later than thirty (30) days after its appointment, the examining board shall give notice of holding an examination for assessor by posting a written notice in a conspicuous place in the city hall and at one other public place, stating that at a specified date not more than sixty (60) days nor less than thirty (30) days from the posting of said notice, an examination for the position of city assessor will be held at a specified place. Similar notice shall be given at the same time, by one publication of said notice in a newspaper of general circulation in the city. * * *
"Within fourteen (14) days from the holding of such examination, it shall certify to the city council, the board of supervisors and the school board, the names of all persons who in its determination, shall have passed with a grade of not less than seventy (70) per cent in such examination. Said list shall be in force and effect for two (2) years from the date of certification.
"Section 4. Not later than seven (7) days after receipt of this list, the mayor of the city shall by written notice, call a meeting of the members of the board of supervisors, the school board and the city council, at the city hall or other specified public place, to appoint the city assessor from this list. Such selection shall not be made unless a majority of the members of two or more of said three taxing bodies are present. The mayor shall act as chairman of the meeting. The majority vote of the members present of each separate taxing body in *Page 120
favor of a candidate, shall count as one vote toward the selection of the city assessor.
"The assessor shall be chosen by an approving vote of not less than two (2) out of three (3) taxing bodies. The physical condition, general reputation of the candidates and their fitness for the position as determined by the examination provided for in section three (3), shall be taken into consideration in making such selection."
The representatives of the three taxing bodies constituted an examining board, and in compliance with the provisions of section 1 of the act, met on June 17, 1941, and reported the names of five persons who had passed the examination with a grade of 70 per cent or more, which list included the plaintiff Tusant and the defendant Zuver, it appearing by the record that Zuver's percentage was 84.6 and Tusant's 86.2. On June 24, 1941, the three taxing bodies met for the purpose of selecting a city assessor, at which meeting the plaintiff Tusant received the vote of the City Council of Des Moines, and the defendant Zuver received the votes of the other two bodies and he was selected. From this action of the appointing board the plaintiff Tusant appealed to the district court.
[1] There is no appeal from the appointment provided for in chapter 202, Acts of the Forty-ninth General Assembly (the assessor law), but there is such appeal provision in the soldiers' preference law, Code, chapter 60, section 1162.1. If the latter act is not applicable to the office of city assessor, there would be no jurisdiction in the district court or in this court to consider such an appeal. The case therefore resolves itself into and must be determined by the question heretofore stated: Does the soldiers' preference law apply to the office of city assessor in cities of more than 125,000 population, provided for by chapter 202 of the Acts of the Forty-ninth General Assembly as amended?
While the various parts of chapter 60 of the Code have been considered by this court in numerous cases, none has presented the question here raised. The new city assessor act was only adopted in February of this year. The question, however, has been determined by the supreme courts of other states having substantially the same statutory provisions as *Page 121
our Code chapter 60. In New York, in the case of People ex rel. Jacobus v. Van Wyck (1897), 157 N.Y. 495, 502, 504, 52 N.E. 559,561, the question arose as to the inclusion in the law of a position such as the one in controversy here, in a statute similar in all respects to our Code chapter 60. See Allen v. Wegman, 218 Iowa 801, 809, 254 N.W. 74, 79. This New York law was known as section 1, chapter 821, Laws of 1896, and, like our own, excepted from the operation of the statute "the position of private secretary, cashier, or deputy of any official or department." This was an action of mandamus on the relation of Jacobus, against Van Wyck as mayor of the city of New York. It related to the office of assessor at the time the government of the city was changed in accordance with the new charter. It involved the application of the veterans' act — as stated, substantially the same as our own. The question was whether or not a veteran properly qualified was subject to removal. The decision cites the previous case of People ex rel. Fonda v. Morton, 148 N.Y. 156, 42 N.E. 538, and follows the ruling of that case, which held that the act applied to employees of every grade in the public service or on the public works of the state, and the cities, towns, and villages thereof, but only as to subordinate positions; and the opinion states that this interpretation of the statute is in accordance with the general understanding of it and is borne out by the title of the act. The case holds that the statute "is limited in its operations to those engaged in the public employment, as that term is ordinarily used, which does not include the more important municipal offices."
The case holds further:
"The incumbent of the office of assessor is inferior in rank to that of the mayor by whom he is appointed; but he is not subject to the direction of the mayor, or to any one else, in the discharge of the very important and quasi judicial duties pertaining to his office. His duties are enjoined by statute, and are within a smaller compass than those placed upon the mayor by the same act; but, within the limits defined by the statute for each officer, the one is not more independent in the discharge of his duty than the other. * * * The test *Page 122
by which to determine whether they are subordinates is not whether a review of such of their determinations as are quasi judicial may be had, but whether, in the performance of their various duties, they are subject to the direction and control of a superior officer, or are independent officers, subject only to such directions as the statute gives."
The holding was that the act did not apply to officers such as a member of the board of assessors, and, for the reasons given, it was held that the veterans' act had no application to the position.
The New York cases are reviewed in In re Christey (1914),211 N.Y. 333, 105 N.E. 419, which opinion discusses and approves the holdings in People ex rel. Fonda v. Morton, supra, and People ex rel. Jacobus v. Van Wyck, supra. The Christey case applied to the position of auditor of the city of Buffalo, and held it to be within the principles laid down in the Jacobus and Fonda cases, and that the auditor was not protected from removal by the statutes protecting veterans from removal from positions in the public service.
The question again arose in the case of Mylod v. Graves (1937),274 N.Y. 381, 9 N.E.2d 18, which was a proceeding to compel the defendants to reinstate the plaintiff in the position of appraiser-attorney in transfer tax matters for Dutchess county. The opinion cites the preceding cases above referred to, and reviews the duties of the tax appraiser, and concludes that, in view of the nature of his duties and the right to appoint a deputy, as an independent official the petitioner did not come within the provisions of the veterans' act.
Minnesota also has a soldiers' preference law, the provisions of which are similar to our own, and it also has been interpreted as to the positions covered thereby. In the case of State ex rel. McOsker v. City Council of Minneapolis (1926), 167 Minn. 240,241, 242, 208 N.W. 1005, 1006, the question for determination was whether or not the soldiers' preference law applied to the office of city clerk. The city clerk of Minneapolis is an officer elected by ballot requiring the affirmative vote of a majority of all members of the council. He is empowered to appoint an assistant city clerk. His duties are prescribed by statute. He is not subject to the direction of *Page 123
the council. His salary is an incident to his office. He takes an oath and holds his office for two years, and has charge of his office and all employees therein. And the opinion held that he is the head of his department.
The opinion quotes a provision similar to our own, as follows:
"`Nothing in this act shall be construed to apply to the position of private secretary or deputy of any official or department, or to any person holding a strictly confidential relation to the appointing officer.'"
The opinion states:
"It is plain that the position of the assistant clerk would not come within the operation of the act. If not, why may we say the Legislature intended to have the law applicable to the superior position — the head of the department? The statute says that no person holding a `position' shall be removed. The exclusion last quoted herein uses the term `position,' which is not an office. Nor does a public officer occupy a place of employment. * * * If the act applies to the office of city clerk, it would also apply to the department of public welfare * * *, and to the city planning commission * * *, and the civil service commission * * *. We do not think the Legislature intended to restrict the appointment of these officials to ex-service men who apply for the appointments. * * * The original New York act used the word `employment' in the title, not the word `appointments,' but this distinction is of little significance. The New York law was subsequently amended so that it is now substantially a duplicate of our law, and in its present form has been construed as indicated."
The opinion states that a law of similar import in the state of New York "which uses the word `position' and refers to employment has been construed as not applicable to the heads of departments, but only to all subordinates in such public service and relating to such employees as are not vested with discretion." Citing, People ex rel. Hall v. Saratoga Springs, 35 A.D. 141, 54 N YS. 1083; People ex rel. Fonda v. Morton, *Page 124
supra; People ex rel. Jacobus v. Van Wyck, supra; In re Christey, supra.
It further states that:
"Appellant relies upon the somewhat contrary authority of Shaw v. City of Marshalltown, 131 Iowa 128, 104 N.W. 1121, 10 L.R.A. (N.S.) 825, 9 Ann. Cas. 1039, but that case involved only the constitutionality of the Iowa act and the propriety of mandamus as a remedy, and, in so far as it is an inferential authority in support of appellant, it is not persuasive."
An examination of the Iowa case cited shows that the analysis in the McOsker case is correct. It involved the appointment of a city clerk, which the court refers to as a "minor municipal office." The question of the duties, and the applicability of the soldiers' preference law thereto, was not an issue, but only constitutional questions. Whatever might be the ruling in that case, it could not apply here.
In State ex rel. Michie v. Walleen (1932), 185 Minn. 329,241 N.W. 318, the supreme court of Minnesota construed the soldiers' preference statute in relation to the office of county engineer, holding that under the duties prescribed by the statute the engineer was the head of the department, and, as such, the soldiers' preference statute was without application. Citing various cases. See also 21 I.L.R. 135-138-139; 43 C.J. 609, par. 992. So far as we have discovered, there is no authority to the contrary in the construction of statutes similar to that of this state. Plaintiff assails these rules, and especially the Van Wyck decision as one prompted by partisan motives; but in an Iowa case — Herman v. Sturgeon, 228 Iowa 829, 293 N.W. 488 — the opinion cites and is in part based upon Stutzbach v. Coler, 168 N.Y. 416,61 N.E. 697, written by the same judge and sustaining the law, when assailed for another reason.
Plaintiff cites no authority contrary to the doctrine announced in the Minnesota and New York cases, but argues that the Iowa statutes, unlike those of New York and Minnesota, are to be liberally construed. We cannot agree with plaintiff that the construction in the New York cases differs from that *Page 125
of Iowa. See Tierney v. Wynne (1924), 209 A.D. 401, 406, 204 N YS. 836, 840. The court said:
"It is the policy of the state to give statutes preferring and protecting veterans in public positions a liberal construction." Citing cases.
We do not think that any rule of construction can lessen the effect of the Van Wyck case. In support of the rule of construction, plaintiff cites section 64 of the Code, and various Iowa cases, and there is little dispute as to the proposition as to construction advanced by him.
Plaintiff further urges that the soldiers' preference law applies to all appointments, in every public department of Iowa cities, citing a number of cases as to the application of the statute involving various positions such as janitor at the statehouse and at the courthouse, policeman, yard man at the state capitol. These cases are not persuasive since there can be no question that the law was intended to apply to the positions mentioned therein. He also cites the case of Maddy v. City Council of Ottumwa, 226 Iowa 941, 285 N.W. 208, but that case was not concerned with the question as to whether or not the office came within the provisions of the soldiers' preference law, and in that case, and in Shaw v. Marshalltown, 131 Iowa 128,104 N.W. 1121, 10 L.R.A., N.S., 825, 9 Ann. Cas. 1039, the question did not arise.
Plaintiff devotes considerable time to his claim that the act is unambiguous and admits of no judicial construction, and that since the assessor is not expressly excluded from the benefits of the statute he must be included. It is the duty of the court in construing a statute of this kind not only to determine the meaning but to determine the application, and in this we must be guided by what we hold to be the intent of the legislature. We say and know that the statute was not intended to cover every office or position, appointive or otherwise, for there are express exceptions in the statute. No one can deny that it has a good and useful object, and that it has been beneficial to the persons for whom it was enacted. That they are entitled to such preference as can be given under the statutes is beyond question. But equally, no one would go so far as to say that there should be a preference for every position. That a veteran's *Page 126
service has tended to increase his qualifications may not be disputed, but the lawmakers of the state realized that there must be some discretion exercised by the appointing officers as to certain positions requiring discretion and judgment. Plaintiff urges that since the office of assessor is not expressly excepted from the benefits of the statutes it must be included. This is applying a strict construction to the statute, in contravention to the terms of section 64 of the Code and contrary to the rule which plaintiff himself invokes in the construction of this statute. See Bay v. Davidson, 133 Iowa 688, 694, 111 N.W. 25, 27, 9 L.R.A., N.S., 1014, 119 Am. St. Rep. 650. As to such positions or offices as do not come within the purview of the preference act, exceptions are made as to positions of confidence or as to deputies, for a deputy stands in the position of his principal. See 1 Bouvier's Law Dictionary, 8th Ed., 851; Funk Wagnall's Standard Dictionary; Webster's New International Dictionary; also definitions in 12 Words and Phrases 198 et seq.; Byrnes v. Windels, 265 N.Y. 403, 193 N.E. 248 — in all of which a deputy is defined as one appointed as a substitute for another, who has power to act for him, in his name and on his behalf. And so with the deputies of the assessor, as prescribed by statute, who act for and in place of the city assessor as to a portion of the duties imposed upon him. Their duties are practically the same. The chief deputy performs the duty of the assessor in the event of a vacancy, and yet the deputies are exempted by the statute. It is our opinion that when the deputies are so exempt, performing as they do the duties of the head of the department, the law would not have application to the head of the department whose duty it is to appoint the deputy. We hold that the legislature, in the enactment of the statute, did not intend to apply and did not apply the law to those who occupy the position of departmental heads. In this case the assessor is not only the head of the department, he is the department itself, and, in conjunction with his deputies, who may act in his place and stead, he performs all the duties of the department. The language of the statute is "in every department and upon all public works." It does not include every appointive office. If the statute is construed as contended by plaintiff, it would necessarily follow that every office required to be filled by the *Page 127
governor, not excepting appointments to fill vacancies, would be included. Manifestly it was not the intent of the legislature that the law should so apply. And we hold that it does not apply here. Such has been the holding in every case where the question arose. No case cited by plaintiff refers to any other authority in support of his argument.
[2] The second ground for reversal raised by the defendants is that the soldiers' preference act was repealed by the enactment of chapter 202, Acts of the Forty-ninth General Assembly. This question was referred to in Hahn v. Clayton County, 218 Iowa 543,552, 255 N.W. 695, 699, wherein it was held that there was no repugnancy between the soldiers' preference law and section 4644-c19, Codes, 1931, 1935 (section 4644.17, Code, 1939), relating to county engineers, even though the latter law had no general repealing section, as is the case with the assessor law. Under our holding, however, there is no occasion to determine this question or to hold that the city assessor law conflicts with the soldiers' preference law. Neither requires the appointment of the veteran regardless of qualifications, nor does the appointment of assessor depend solely upon the written examination. The assessor law holds that "The physical condition, general reputation of the candidates and their fitness for the position as determined by the examination * * * shall be taken into consideration in making such selection." And the soldiers' preference law says they shall "be entitled to preference in appointment, employment, and promotion over other applicants ofno greater qualifications." (Italics ours.) Neither statute deprives the appointing board of the right to determine the qualifications of the candidates who have passed in the examination. This discretion is lodged in them — a discretion not lightly to be interfered with. In the absence of an abuse of discretion the appointing body is free to exercise its judgment. No showing or claim is made in this case of any such abuse. This is the view taken by this court in Boyer v. Mayor, (Iowa),113 N.W. 474 (not officially reported). And such is the holding of the court in passing upon the validity of an appointment under the soldiers' preference law in Patterson v. Boron, 153 Mich. 313,314, 116 N.W. 1083, 1084, wherein it is said: *Page 128
"This right to appoint imposed on respondent the duty of determining that his appointee possessed the requisite qualifications for the office."
And so in State ex rel. Taggart v. Addison, 78 Kan. 172, 174,96 P. 66, this language is used in reference to the soldiers' preference law:
"The validity of the law is established by the former decision [92 P. 581], and it should be so administered as to secure the intended benefits to this honored class of citizens, to which the nation and the state owe so much. On the other hand, efficient service to the state, and to the counties, cities, and towns thereof, must not be sacrificed. The language of the act itself suggests both of these considerations, and even those for whose benefit the law was intended would insist as strenuously upon the latter as upon the former."
And quoting from the former opinion in this same case,76 Kan. 699, 707, 92 P. 581, 584, determining the law in this case:
"The determination of the appointing board or officer as to the qualifications of the applicant involves official discretion, and, when made fairly and in good faith, is final."
And the plaintiff in his cross-appeal insists that the presiding judge, instead of remanding the case to the appointing board, should have entered an order reinstating the plaintiff in the office. Since our holding is contrary to the contentions of the plaintiff as to the application of the law, no ruling is necessary upon this cross-appeal.
The office which is the subject of this controversy is one of extreme importance. We have only to take notice of our own records in past years to realize that the decisions of the taxing authorities of Des Moines have created much litigation, at great expense not only to the city but to individuals. Appeals have filled the records of the courts, and taken their time, by the hundreds. It was to remedy this evil that chapter 202 of the Acts of the Forty-ninth General Assembly was enacted. This statute reposed in the three bodies representing the three local bodies most affected by assessments and representative *Page 129
of the whole community at large — the city, the county, and the schools — the power and the right to select an assessor who would fairly and properly value the taxable property. No complaint is made that they have unfairly or unjustly abused the discretion reposed in them.
For the reasons given under our holding that the soldiers' preference law has no application to this appointment, we feel it our duty to sustain the appointment, and are compelled to reverse the holding of the district court. — Reversed.
MILLER, C.J., and SAGER, BLISS, GARFIELD, and WENNERSTRUM, JJ., concur.
STIGER and MITCHELL, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430849/ | The appellant was indicted, tried, and convicted in Davis County, of the crime of assault with intent to commit murder. The verdict was returned on the 22d day of February, 1929. The district court of said county adjourned sine die
1. CRIMINAL the following day. At the time when the verdict LAW: was returned, the following entry was made by sentence: the court: rendition in vacation: validity.
"Jury return into court at 2:45 A.M., with a verdict finding the defendant Walter Rime guilty, as charged in the indictment. Jury called at request of defendant, and then discharged. Defendant given ten days in which to file a motion for new trial, exceptions to instructions, and a motion in arrest of judgment. The State is given five days thereafter to file any resistance desired. The motions will then be submitted at Fairfield at such time in vacation as can be agreed upon by counsel and the court. Judgment and record entry to be signed and filed in vacation."
At Fairfield, Jefferson County, which is in the same judicial district with Davis County, appellant's motions in arrest of judgment and for a new trial and exceptions to instructions were, on March 18th, overruled by the judge who presided at the trial, and immediately thereafter, the defendant being in the presence of said judge, sentence was pronounced, committing appellant to the penitentiary for an indeterminate period, not to exceed 30 years. The overruling of the motion for a new trial and the pronouncement of judgment were by a writing signed by the judge in vacation, and then forwarded to the clerk of the district court of Davis County, and made of record, said writing and record being as follows:
"Be it remembered that the defendant, Walter Rime, was heretofore convicted by the verdict of a jury of the crime of an assault with intent to commit murder. And the court ordered that the defendant be given ten days in which to file a motion to set aside the verdict for new trial and exceptions to the instructions, the motion then to be heard in vacation at Fairfield, Iowa, at such time as counsel and the court could agree, and decision on the motion, with judgment, sentence, and record entry, if the motion be overruled, should be entered and filed in vacation. Be it further remembered that the case now *Page 866
coming on for hearing on defendant's motion for new trial, pursuant to the order of the court, the defendant being personally present, with his counsel, and the court having heard the argument on the motion, it is ordered that the motion for new trial be, and it is, overruled. To which ruling the defendant at the time excepts. The cause then coming on for judgment and sentence, and there appearing no good cause why judgment and sentence should not now be pronounced against the defendant, it is ordered and adjudged that the defendant Walter Rime be confined in the penitentiary, at Fort Madison, Iowa, at hard labor, for an indeterminate period not exceeding 30 years, and pay the costs of prosecution. It is further ordered that an appeal bond to the Supreme Court be fixed at $2,500. To all of which judgment, sentence, and orders the defendant at the time excepts."
A similar writing was signed by the judge at the same time, overruling the motion in arrest of judgment, and in like manner made of record in the clerk's office of Davis County.
It is appellant's contention that the judge, in vacation, was without authority, or had no power to pass upon the motions and to pronounce judgment; that said acts were without jurisdiction.
Under our statutory law, Section 13995 of the Code of 1927, an appeal in criminal cases can only be taken from the final judgment. The question naturally arises, If the judgment be void, is it a final judgment that is appealable? We have so held. SeePetty v. Durall, 4 G. Greene (Iowa) 120; State v. Olsen, 180 Iowa 97.
The jurisdiction of this court to entertain the appeal is in no way questioned by the State, and under Section 12885 of the Code, all objections to the jurisdiction of this court to entertain an appeal must be made in written form, stating specifically the ground thereof and served upon the appellant or his attorney of record, not less than ten days before the day assigned for the submission of the cause.
It is, therefore, apparent that, although the judgment may be void for want of jurisdiction on the part of the judge, in vacation, to pronounce the judgment, the matter is properly before us for our determination.
Did the judge, in vacation, at Fairfield, after the adjournment *Page 867 sine die of the Davis County court, have jurisdiction to pronounce judgment? The attorney-general, in his argument, contends that the appellant has been in no way prejudiced. The question presented is not as to whether prejudice has resulted to the appellant, but is one of jurisdiction. The general rule is that all judicial business must be transacted in open court, and the authority to transact such business of the court by a judge in vacation is exceptional, and does not exist unless expressly granted by statute. The appellant was found guilty of a charge contained in an indictment returned by the grand jury of Davis County. Section 13951 of the Code provides:
"Upon a * * * verdict of guilty, * * * the court must fix a time for pronouncing judgment, which must be at least three days after the verdict is rendered, if the court remains in session so long, or, if not, as remote a time as can reasonably be allowed; but in no case can it be pronounced in less than six hours after the verdict is rendered, unless defendant consent thereto."
Under the plain provisions of this statute, it was the duty of the court to fix the time for the pronouncement of judgment by it (the court). There is no authority under said section for the pronouncement of judgment by a judge in vacation. It is provided by Section 10793 of the Code that, upon final adjournment of the court, all business not otherwise disposed of shall stand continued. The pronouncement of judgment upon a verdict of guilty of a charge contained in an indictment is a duty to be performed by the court in regular session, and not by a judge in vacation. The attorney-general, in his argument, states that the trial court evidently relied upon Section 13671 of the Code. Sections 13666 to 13671, inclusive, of the Code are identical with Sections 5239-n to 5239-o, inclusive, of the 1913 Supplement to the Code, as amended by provisions of Chapter 229, Acts of the Thirty-eighth General Assembly. Said sections constitute a portion of the provisions of the County Attorney's Information Law, and the judgment which can be rendered in vacation by reason of the provisions of Section 13671 of the Code is only a judgment on a written plea of guilt to a county attorney's information. Thus it is manifest that the judge sitting in chambers at Fairfield was without jurisdiction *Page 868
to pronounce judgment, and said pretended judgment is a nullity. The mere fact of appellant's presence before the judge, in vacation, at the time of the pronouncement of the sentence, did not give said judge jurisdiction, in the absence of statutory authority, for the act of the officer.
Did the judge, in vacation, at Fairfield, after the adjournmentsine die of the Davis County court, have jurisdiction to pass upon the motions and exceptions to the instructions? We answer in the negative. The State in its argument gives us no basis upon which it claims that the action of the judge was authorized or warranted. There is no authority for the court to order a submission of the motions in vacation. Section 10794 of the Code provides:
"With consent of parties, actions and other matters pending in the courts * * * may be taken under advisement by the judges, decided and entered of record in vacation, or at the next term; if so entered in vacation, they shall have the same force and effect from the time of such entry as if done in term time."
All the provisions relating to mode and manner of the trial of civil actions apply to the trial of criminal actions. Section 13845 of the Code. Said sections are not authority for the action of the court in the instant case, in ordering the submission of the motions to him (a judge) in vacation. The motions and exceptions had not been filed at the time when the entry was made. The court, at that time, had no pending matter to take under advisement, for the manifest reason that the motions and exceptions had not been submitted, and could not be submitted until the preparation of the same. There was nothing submitted to the court, at that time, requiring consent of the parties that it be determined in vacation.
We need not determine whether, by agreement of the opposing parties, the motions and exceptions could have been submitted and ruled upon by the judge in vacation; for it is not shown by the record that there was any such agreement, after they were prepared and ready for submission. The judge, in the judgment entry signed at Fairfield, refers to the submission of the motions as having been made under order of the court, and not as having been made by agreement of the opposing parties. While, under Section 10922 of the Code, an attorney *Page 869
has power to bind his client to an agreement in respect to any proceeding within the scope of his proper duties and powers, no evidence of any such agreement is receivable, except the statement of the attorney himself, his written agreement, signed and filed with the clerk, or an entry thereof upon the records of the court. The mere fact of the appearance of the attorneys and the defendant before the judge at Fairfield is not sufficient to constitute an agreement between the opposing parties for the submission of the motions. Their submitting to an unwarranted order by the court did not give the judge, in vacation, jurisdiction. See Whitlock v. Wade, 117 Iowa 153. In the cited case, we said:
"True, counsel appeared before the judge at the time the application was submitted, and did not object to the jurisdiction; but there is no evidence of an agreement to submit the case to him at the time the matter was brought on for hearing. Such an agreement was jurisdictional, and without it the judge could do no act which would be binding on the parties. A judge in vacation has no authority except as is expressly given him by statute."
Thus it is apparent that the provisions of Section 10794 of the Code are not applicable, as nothing had been submitted at or prior to the time of the entry by the court on February 22d. It is also apparent that there is no competent evidence of an agreement between the opposing parties for the submission of the motions to the judge on March 18th. Therefore, the action of the trial judge in ruling upon the motions and exceptions to instructions in vacation at Fairfield was without jurisdiction.
Many other alleged errors are assigned by the appellant, but they all arise upon claimed erroneous rulings in overruling the motion in arrest of judgment, the motion for a new trial, and the exceptions to the instructions. Since, under the 2. CRIMINAL record, the pronouncement of judgment and LAW: appeal rulings of the judge at Fairfield were without and error: jurisdiction, it is apparent that the motions remand with and exceptions have not been passed upon by the directions. trial court. This court is only a court of review. The motions and exceptions must still be submitted to and passed upon by the trial court. What those rulings may be, cannot be known in *Page 870
advance. Any opinion expressed by us at this time as to the propositions arising on the motions and exceptions would necessarily be only advisory. After the trial court shall have passed upon the motions and exceptions, and entered judgment, the defeated party will then have the right to appeal therefrom. In that manner, any error committed by the court in passing upon the motions and exceptions can then be properly presented to us for our determination.
We therefore remand the case to the district court of Davis County, with directions to entertain and pass upon the motions and exceptions to the instructions, and thereafter, to enter judgment in accordance with the rulings which may be made thereon. — Remanded, with directions.
ALBERT, C.J., and STEVENS, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430850/ | Plaintiff, as payee of a promissory note, sues the defendant, 1. BILLS AND as maker thereof, to recover the sum of $1,000, NOTES: with interest, attorney's fees, and costs. On actions: the trial, plaintiff introduced the note, and sufficiency rested. This was his legal privilege. Bigelow v.
of proof. Burnham, 90 Iowa 300; Tuttle v. Becker, 47 Iowa 487.
It is obvious that, unless a valid defense is alleged and proved, plaintiff is entitled to judgment. At the outset we naturally inquire, What defense is interposed by the defendant-maker? It is fraud; but with the specific allegations in the answer we are not concerned on this appeal, unless it is determined, in the first instance, under the theory of the case as submitted to the trial court, that the plaintiff was a party to the fraud, as alleged. *Page 1018
At the close of the defendant's testimony, plaintiff's motion for a directed verdict was sustained on each and every ground recited therein. It is apparent from the record that the ruling of the court was primarily based on the ground 2. BILLS AND that there is no testimony proving or tending to NOTES: prove that the plaintiff made any fraud: representations whatsoever as to any facts upon nonavaila- which the defendant relies or is entitled to bility. rely, on his charge of fraud, and that plaintiff did not participate in any alleged misrepresentation, either as principal or agent, or by reason of any fraudulent conspiracy between the plaintiff and other parties who are charged with the making of the alleged misrepresentations. This finding, which is controlling, we do not hesitate to indorse.
A brief summary of the facts may be made, and it is to be observed that all the evidence was offered by the defendant. It appears that one Alex Henderson agreed, in writing, to act as trustee for certain subscribers in an unincorporated association bearing the name of the Oklahoma Drilling Syndicate, and composed, at its maximum strength, of some twenty-five or more Story County, Iowa, residents, mostly farmers.
The purpose of this association was the owning and developing of certain oil fields in the state of Oklahoma; but it was organized at Story City, where it maintained its principal place of business. Under the terms of this trust arrangement, the business operations of the so-called syndicate, including the care, development, and disposal of leasehold rights and privileges in the lands described in the agreement, were managed exclusively by the trustee, who was to receive the proceeds of all subscriptions and all the earnings. It was further provided that, when the subscribers should have had the entire amount of the respective subscriptions returned to them in dividends, it became the duty of the trustee and the advisory committee to incorporate the association under the laws of the state of Oklahoma. The proposition never reached this contemplated stage of development, but apparently the subscribers undertook in good faith to engage in this particular plan of oil speculation.
The sums contributed were comparatively small, and it may be said that many of the shareholders, including the defendant in this action, personally visited the oil field, prior to making *Page 1019
their investments. Needless to say that they knew, or must have known, that they were engaging in a hazardous undertaking; but this is beside the point in the determination of this appeal.
It further appears that a man by the name of Ogaard was employed, apparently by the trustee, to sell subscriptions to shares of stock in this association, and it was through him that the defendant Holt became interested in the plan. The only connection which the plaintiff had with the initial visit was to drive Ogaard to the defendant's farm in a Ford and introduce him to the defendant.
Plaintiff is a retired farmer, and an old resident of Story County. He was then living in the town of Story City, and had been personally known to the defendant for several years.
It may be assumed, although it is not definitely shown, that at this particular time the plaintiff was the holder of two shares in the association. The only statement of any consequence made by this plaintiff to Holt on this introductory visit, as found in the testimony of the defendant, is this:
"Mr. Henderson said that it would be a good thing to go down and see; that he had been down there and seen for himself; and that it looked good."
The defendant further testified that he did not remember seeing the plaintiff again from that time until the note in suit was delivered to the plaintiff, under the circumstances presently stated.
After several visits to the defendant by Ogaard and his subagent, named Weir, at which times the plaintiff was not present, the defendant consented to make a personal trip to Oklahoma, to inspect the fields and determine for himself whether he should invest in the oil game. He did take the trip and inspected the properties, and he testified that he saw the wells working and some of the machinery.
"I think they showed a man all they had to show. I took $1,000 worth of stock in the company that same night in the hotel. They promised me that he [Mr. Fell, the oil expert] would stand back of it if I seen the proposition didn't come to my satisfaction; then I could cancel it."
As a matter of fact, the defendant never did cancel the *Page 1020
contract or give notice of rescission; and the evidence discloses that the properties owned by the association continued at all times to have some value, although the drilling proposition was abandoned, due to the decreased selling value of oil and the depletion of funds in the treasury of the association.
It is apparent that whatever representations were made by Ogaard or Fell to this defendant in Oklahoma are not chargeable to this plaintiff. He had nothing to do with the Oklahoma transaction, and was not in Oklahoma at the time.
In the argument upon this appeal, the appellant insists that, regardless of any personal responsibility against plaintiff for the pleaded fraud, he is none the less liable by reason of his membership in the oil syndicate, on the theory that the members of an unincorporated association, under the instant record, are partners, and as such are liable for the acts of its agents, within the scope of their authority. No such liability is pleaded, and no such issue was presented or determined in the trial below. This court does not entertain propositions assigned and argued for the first time on appeal.
One other phase of this case, however, may be noticed. The note in suit is not the original note executed by the defendant to the drilling syndicate. Is it a renewal note? No. What are the facts? Subsequently to the giving of the original note, the syndicate, being in need of money, attempted to sell said note, and for this purpose the plaintiff was interviewed. He refused to take the note as it was, but said that he would take a note payable directly to himself. The original note bore date June 3, 1920, and was payable one year after date. The conversation relative to the giving of the note in suit was in August, 1920. The defendant was advised that plaintiff refused to take the original note, and that "he [plaintiff] didn't want anything to do with the oil transaction. He didn't want anything to do with any agreement with Fell before Holt signed up for the stock."
"That agreement was that, if it didn't prove good, he [Fell] would be back of it. I took the stock somewhat on the strength of Fell's agreement. Last term I testified that I took the stock on the strength of that agreement."
Thus it is seen that the plaintiff-payee was never a holder *Page 1021
of the original note. The note in suit constitutes a new and independent obligation. The plaintiff did advance $1,000 to the original payee, and in consideration thereof the old note of the defendant was canceled and returned to him, and the stock for which he had subscribed, and which he then had in his possession, was paid for by this later transaction. It was, in effect, a loan by the plaintiff for the benefit of the defendant, whereby the obligation of the defendant to the original payee was paid, and a new and valid obligation created by him in favor of this plaintiff. Under such circumstances, the defendant is not in a position to make good his plea of antecedent fraud as against this plaintiff, who was not a party in any manner to the alleged misrepresentation. Nor is it shown that there was any collusion or fraud in the arrangement whereby the new note was brought into being, or that plaintiff had notice or knowledge of the fraud subsequently claimed and pleaded by the defendant. The money was advanced by this plaintiff in good faith. The legal effect is the same as though the plaintiff took the note on a direct loan to the defendant in the first instance, to pay for his stock subscription. See Farmers Sav. Bank v. Grange, 199 Iowa 978;Commercial St. Bank v. Beers, 199 Iowa 864.
With this view of the facts, the defense of fraud is not available to the defendant against this plaintiff. We deem it unnecessary to consider other errors urged on this appeal. Plaintiff's motion for a directed verdict was properly sustained. Wherefore, the judgment entered is — Affirmed.
FAVILLE, C.J., and STEVENS and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430851/ | One A.A. Waite operated a farm located on the Lincoln Highway, between Logan and Woodbine, in Harrison County, which farm was owned by George and A.J. Coe. Waite had a herd of hogs on said farm, and in October, 1925, certain of the hogs were missing. Defendant, Abner Bohall, lived on a farm some eight or ten miles distant from the Waite farm. After the disappearance of the hogs from the Waite farm, the prosecuting witness, Waite, went to defendant's farm, and claims to have found there three hogs which he identified as belonging to him by reason of certain marks on the hogs placed there by him, and also by the general appearance of the hogs, they being black Poland China breed. These hogs were also identified by A.J. Coe, one of the owners thereof; also by one Arnold, a hired man of Waite's who helped to mark the hogs.
Two witnesses, Lingo and Roden, testified that they assisted the defendant in stealing hogs from the Waite place at about the time these hogs were alleged to have been stolen; that they were put into a touring car, and carried to defendant's place. It appears from the testimony of these two witnesses that three hogs were taken from the Waite place at one time, and two at another.
So much of the testimony is recited for the purpose of meeting the first objection made by the defendant, in which he claims that the testimony of these two accomplices, Lingo and Roden, was not corroborated. The evidence in the case abundantly corroborates these witnesses.
The State elected, on motion of the defendant, to stand on the theft of the three hogs first stolen, and the objection is that, since it did so, the evidence showing the taking of two other hogs at or near the same time cannot be 1. CRIMINAL considered for the purpose of corroboration. But LAW: even if we assume this to be true, the trouble accomplices: is that the court, in its instructions, limited corrobora- the testimony as to the theft of the other two tion. hogs solely to the question of the intention of the defendant in taking the hogs in the first instance. The court said:
"Evidence has been introduced by the said two witnesses regarding the taking of two hogs at a later time, but you are instructed that the same is received and is in evidence before *Page 221
you for the sole and only purpose of showing, if you find that two hogs were later taken by defendant, the intent of the defendant in the taking of the hogs, as alleged in the indictment, should you find that defendant did so take them, as explained in these instructions."
It is apparent here that nothing is said about considering this testimony as corroboration, and hence the objection lodged has no validity. We say this, notwithstanding the fact that the assignment of error here is not sufficient to raise the question discussed.
It would seem from the evidence that the hogs were stolen about the middle of October, and were discovered in the defendant's possession about the first of December following. It is claimed that this possession is too remote to raise any 2. LARCENY: presumption or evidence of guilt as to the recent larceny itself. The rule that recent possession possession. of stolen property may be considered by the jury as evidence of guilt is too well settled in this state to need citation of authority; but the court did not avail itself of this rule, and gave no instruction whatever on the question of recent possession of stolen property; hence the argument of counsel on this proposition raises no question for our consideration.
A careful reading of all of the instructions shows that the defendant's right as to the question of corroboration of accomplices was abundantly protected, the case was fairly submitted, and the evidence sufficient in all respects to carry the case to the jury. We find no ground for reversal. —Affirmed.
STEVENS, C.J., and De GRAFF, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430852/ | The plaintiff was the assignee of the Davenport Savings Bank, which was the mortgagee in the mortgage sued on. This mortgage was for $4,000, bearing date March 1, 1922, and covering a 100-acre farm located in Madison County, near Winterset. The mortgage of the cross-petitioner was for $3,000, bearing the same date and covering the same land, but was made junior to the plaintiff's mortgage. On and prior to this date, the cross-petitioner was the holder of a first mortgage for $6,500, covering the same farm. This mortgage, with interest accrued and taxes paid, amounted, on March 1, 1922, to $7,002. The two mortgages in suit were negotiated for the purpose of paying off the $6,500 mortgage, and the proceeds thereof were so used, and such previous mortgage was released of record. On this date, the holder of the record title to this farm was Matt Lyons, who lived at Grinnell, Iowa. He acquired the farm by deed in December, 1916. His grantor, Runner, was the mortgagor in the $6,500 mortgage. In his conveyance, Matt Lyons, as grantee, expressly assumed the payment of such mortgage. He testified that he bought the land for his son George, and turned it over to him with the understanding that he should pay the mortgage and "own the land." This son, known in the record as George M. Lyons, on and for some time prior to March 1, 1922, was occupying this farm and claiming to be the owner *Page 106
thereof. Prior to such date, he had listed this farm for sale in his own name with the witness Hamilton, who was a real-estate-and-loan agent of Winterset. The Davenport Savings Bank and the cross-petitioner, Welty, were nonresidents of Madison County, the latter residing at Nevada, Iowa. Welty, desiring to realize a partial payment upon his mortgage, wrote to the witness Hamilton, at Winterset, suggesting the possibility of negotiating a first mortgage loan to the owner of the farm for such an amount as could be obtained, and proposing to accept a second mortgage for the balance due him, after his receipt of the proceeds of the first mortgage loan. Hamilton immediately conferred with George M. Lyons, relying upon Lyons's claim to be the owner of the farm, which he was then occupying. Lyons assented to the proposal. Hamilton thereupon wrote to the Davenport Savings Bank, proposing to make a contemplated first mortgage real estate loan of $4,000. The money for the proposed loan appears to have been remitted by the Davenport Savings Bank to Hamilton, without previous investigation or knowledge by the home officers of the identity of the particular loan to be made. The matter of carrying out the proposal of a loan appears to have been fully intrusted to Hamilton himself. An examination of the record title disclosed that the title was in Matt Lyons. George M. Lyons represented to Hamilton that such was the name by which he was known in the community in which he had previously lived. He thereupon executed the two mortgages for $4,000 and $3,000, respectively, signing and acknowledging the same as "Matt Lyons." His wife, Elva, joined in the mortgages. Hamilton paid the proceeds of the first mortgage loan to Welty, and sent the mortgage to the mortgagee. He sent the second mortgage of $3,000 to Welty, who accepted the same, pursuant to his former proposal. The defense of Shriver herein is predicated upon the want of authority in George M. Lyons to execute the mortgages in question. Matt Lyons testified, as a witness, that he had expressly refused his consent to the making of such mortgages, upon a proposal made to him by his son, George. This testimony is not disputed. George Lyons was not a witness. Subsequent events, however, become significant. Sometime after March 1, 1922, and while he was still the holder of the record title to the farm, he (Matt Lyons) was informed that the $6,500 mortgage had been changed into two mortgages *Page 107
of $4,000 and $3,000, respectively. The fair inference from the record is that he obtained this information from his son George. He did not repudiate. On the contrary, in November, 1923, he conveyed this farm to his son Joe for the sole consideration that Joe would pay these mortgages. Both grantor and grantee knew of the mortgages at the time. The deed recited a consideration of $1.00, and was made "subject to a mortgage indebtedness of $8,000 and the unpaid taxes, all of which the grantee assumes and agrees to pay for the purchase price of said premises." At this time, the two mortgages amounted approximately to $8,000.
In September, 1924, pursuant to negotiations with the defendant Shriver, Joe Lyons and his wife executed a deed in blank as to the name of the grantee, and delivered the same to the defendant Shriver for the consideration of $500. This deed purported to be "subject to mortgages of record and back interest and taxes." According to his own testimony, Shriver actually knew of these two mortgages in suit and of the previous $6,500 mortgage, and took the deed with the then purpose to contest the validity of the mortgages. He testified: "I knew I would have a lawsuit before I got it." His claim of ownership is predicated upon the blank deed herein mentioned.
Upon the foregoing facts, were the plaintiff and the cross-petitioner entitled to the relief awarded? The case has been extensively argued by the appellant. His attack is mainly upon the theory upon which the court rendered relief. This theory was that these parties were entitled to subrogation to the previous lien of the previous $6,500 mortgage. The legal questions presented are not wanting in interest, but the ultimate result to be reached, upon a consideration of the case, stands out so prominently that fair minds could not differ thereon. If we deemed the district court wrong in its theory, and still right in the result reached, we should have to sustain it.
It is manifest, upon the record, that there are more theories than one upon which the decree of the district court could be sustained. The testimony of Matt Lyons discloses that he bought the farm for his son George, and put him in possession of it, with an understanding that he was to pay the mortgage and "own the land." This fact undoubtedly accounts, in a measure, for the action of George in claiming to be the owner of the land. *Page 108
If George had actually paid the $6,500 mortgage, he would thereby have fulfilled his contract with his father, and would have been entitled to a conveyance of the land. The mortgages executed by him were good, as against him, and could have been foreclosed as against his interest. His interest was subject to the payment of the previous mortgage, and to nothing more. This mortgage having been satisfied, this, on the face of it, worked a performance of the contract by George, as between him and his father. The satisfaction of that mortgage was the only consideration which the father demanded for a conveyance of the farm, according to his own testimony. If no other interest, therefore, were involved than that of Matt Lyons, the mortgagees could have foreclosed their mortgages as against George, and could have had specific performance as against Matt, as one who had received the stipulated consideration for a conveyance. But other interests intervened, and these must be considered.
On November 30, 1923, the son Joe became the owner by conveyance from his father. Both of them knew of these mortgages, and had them in contemplation. The only consideration for this conveyance was the promise of Joe to pay such mortgages. Even if we grant, then, that George M. was not authorized to execute the mortgages in his father's name, and was not authorized to use such name as his own, yet, with knowledge of what was done, and, of legal necessity, with knowledge of the benefit which had accrued to him thereby, in the discharge of the $6,500 mortgage upon which he was personally liable, the father at all times failed to repudiate. To fail to repudiate was to ratify, where substantial benefits had resulted to him from the transaction. He could not claim the benefits of the release of his obligation and still repudiate the agency that accomplished it. The fact that he sold the land to the son Joe for the express consideration of the payment of such mortgages by Joe, was an act of express ratification on the part of the father, and an express promise to pay on the part of Joe.
It is clear, therefore, that neither Matt nor Joe had any valid defense which they could interpose against these foreclosures. Nor have they appealed.
It remains to consider the case of Shriver. Does the record disclose any equities in his favor, superior to those of his *Page 109
grantor? He is neither an innocent purchaser nor a purchaser for value. He had actual notice of the claims of these mortgagees. The price paid by him was quite nominal. It did not approximate the value of the land. He parted with $500 as a mere wager, though it was quite a secure one. He received immediate possession, which included a part of the rent of 1924 and all of that of 1925. Professedly, by his own testimony, he bought a "lawsuit." Clearly, his rights are measured by those of his grantor. The record does not disclose a single equitable consideration in his favor.
The district court awarded decree to the plaintiff and cross-petitioner on the theory of a right of subrogation to the lien of the discharged mortgage. In the adoption of such theory, we think the court did not err, although it involved somewhat more intricacy than the theory of ratification. We see nothing to be gained by a discussion of the subject of subrogation. On any theory, only one result can properly be reached in this case.
The decree of the district court is, accordingly, — Affirmed.
De GRAFF, ALBERT, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430854/ | The check under consideration was in the following form: *Page 819
"Pulaski, Iowa, 1-21-1926 No. The Bank of Pulaski Pay to the order of Hazen Spears [Writer's italics] $173.25 One Hundred Seventy-three 25-100 Dollars For Three stears Ross H.H. Tucker."
The circumstances attending the cashing of the check in question were testified to by the assistant cashier of the defendant as follows:
"A man came into the bank with Exhibit P-1 and presented it. There was nothing suspicious about him at all. He was dressed like an ordinary farmer. I asked him if his name was Hazen Spears, and he said it was. I, knowing Mr. Tucker and Mr. Spear, by reputation, cashed the check, and gave him the money. He signed the name on the reverse side in my presence, and at the time I believed that the signature was the genuine signature of H.H. Tucker, and that that man was Hazen Spears. I paid him $173.25, and received Exhibit P-1, this check. There was nothing about the conduct, appearance, manner, or looks of the man to arouse my suspicions about the genuineness of the check, or to lead me for one moment to doubt the genuineness of that check, nor the fact that the man who presented it was in fact Hazen Spears. I acted in good faith, because I thought he was who he purported to be. I thought he was Hazen Spears. The man who presented this check was dressed like an ordinary average farmer, and had on an overcoat, — a very good-appearing fellow."
The check was indorsed by the defendant to the Iowa Loan
Trust Company of Des Moines, and indorsed by the Iowa Loan
Trust Company of Des Moines to the Federal Reserve Bank of Chicago, and indorsed by the Federal Reserve Bank of Chicago to the Iowa National Bank of Des Moines, and by the Iowa National Bank of Des Moines it was presented to the plaintiff, and was by the plaintiff paid, on January 28, 1926. In early July, the check was delivered to Tucker, who in August repudiated the same, and declared it a forgery. On March 14, 1927, the plaintiff made demand upon the defendant for the *Page 820
amount of the check, and followed the same by the present action.
The case has been very thoroughly argued. In a sense it has been excessively argued. Each side has filed six successive briefs, on successive dates. The result has been that the later arguments present a departure from the earlier ones. The successive arguments have discovered and presented new grounds of recovery and additional hypotheses. The case is one which lends itself quite readily to hypothetical discussion. By assuming slight variations of fact, the case may be extended to cover the whole field of the Negotiable Instrument Law, and substantially this is what has been done by the many briefs filed by counsel in their pardonable zeal. It becomes important, therefore, for us at the outset to set the case within the actual limits of the record, and to confine it within its own inclosure, for the purpose of our discussion.
The petition pleaded the facts which we have already stated. Its Paragraph 6 stated the grounds laid for recovery, as follows:
"6. That the said Bank of Pulaski would not have paid said check but for the fact that the same was indorsed by the Bloomfield State Bank, as hereinbefore referred to, and that said indorsement of said State Bank guaranteed all prior indorsements, and the said Bank of Pulaski relied upon said indorsement, and would not have paid said check but for the fact that the same was indorsed as aforesaid. That maid Bloomfield State Bank was negligent and careless in paying said check to a person whom it did not know, and who had not been identified in any way, and that by this said plaintiff has suffered a loss of said above-named sum, and that there is due at this time from said State Bank in favor of said plaintiff bank the sum of $173.25, with interest as provided by law from the date of said demand."
It will be noted from the foregoing that recovery is predicated upon two grounds: (1) The negligence of the defendant in paying the check without any identification of the purported payee and indorser; and (2) that the defendant by its indorsement guaranteed the prior indorsement. Our discussion must be confined lo these two predicates. *Page 821
I. On the question of negligence, legal discussion has taken a wide range in the briefs. Beginning with Price v. Neal, 3 Burr. (Eng.) 1355, all the cases have been marshaled, as bearing upon the various hypotheses upon which recovery may be had by a drawee-bank which has mistakenly 1. APPEAL AND paid a forged check against its depositor. The ERROR: appellant's contention is that the negligence of review: the first cashing bank is a proper ground of scope and such recovery. This contention was accepted by extent: the trial court, and taken for granted. We have, question of therefore, no occasion to consider it as a fact: question of law. If there was error in the finding by attitude of the court in that respect, it was court: not an error adverse to the appellant. Evidence conclusive- of the circumstances attending the cashing of ness. the check was introduced, and we have set forth above the substance thereof. Evidence was likewise introduced of the circumstances under which the check was paid by the drawee-bank. That evidence disclosed that Tucker had been a depositor of the drawee-bank for more than 20 years, and that its officials were familiar with his signature; that the official who accepted and paid the check in question observed the purported signature on the check at the time of such payment; that he observed that the signature on the check was not the genuine signature of Tucker; that he believed, however, that the signature was authorized by Tucker. He testified that he knew that Ross, the son of the depositor, was authorized to sign his name, and that he believed the signature had been written by Ross. The fact here disclosed clearly put the official upon active inquiry. Having observed that the purported signature was not in fact genuine, he was not deceived by the forgery. He was not misled into believing that the signature was genuine. The signature of the maker, such as it was, did not purport to be made by a third person for the maker. Knowing that the signature was not genuine, the paying official deliberately took a chance on the question of authority. Under all the circumstances surrounding him, was he negligent in so doing? Such was the question of fact presented to the trial court, upon the evidence.
The trial court held that the plaintiff's official was negligent at this point, and that such negligence was the proximate cause of the loss. The court held also that the negligence of the *Page 822
cashing bank was not established by the circumstances put in evidence. Under the evidence, a jury question was presented. The finding of fact by the trial court had support in the evidence, and it is now binding on us on this appeal. No error is, therefore, available to the appellant at this point. We pass to the second predicate.
II. The plaintiff pleaded, and now contends, that the purported indorsement of Hazen Spears was a forgery; that the defendant guaranteed such prior indorsement; and that it is liable to the plaintiff, as such guarantor. Whether, if the 2. BILLS AND premise were proved, the conclusion would NOTES: follow, we need not here consider. See McCornack
requisites v. Central State Bank, 203 Iowa 833. It is and sufficient at this point to say that the premise validity: was not proved. That is to say, there was no forged proof that the purported indorsement was a indorsement: forgery. It did appear that one Hazen Speer evidence: lived in Davis County, and that he had nothing sufficiency. to do with the transaction in question. But the indorser purported to be Hazen Spears. Such was the name of the purported payee. There was no proof that "Hazen Spears" was not the true name of the party who negotiated the instrument to the defendant. We have no occasion, therefore, to give further consideration to this proposition of plaintiff's.
By the court's finding of fact in an action at law, the plaintiff has failed to establish either of the two predicates upon which it asserts its right of recovery.
The judgment below is, accordingly, — Affirmed.
MORLING, C.J., and STEVENS, FAVILLE, ALBERT, KINDIG, WAGNER, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4141876/ | .. -
Honorable James Vi.Stravm
county attorney
'NillacyCounty
Raymondville, Texas
%ar Sir; Opinion No. O-4466
Re: Whet is the legal status of
a politioal subdivision in a
county when said political
subdivision is dry as to four
per cent beer and the county
is wet as to malt and vinous
beverages that do not contain
alcohol in excess of fourteen
per cent by volume?
Your letter requesting the opinion of this department on
the above stated question reads as followsr
"I would like an opinion on the following question:
'Illhatisthe legal status of a political subdivision in
a county when said political subdivision 1s dry to four
(4%) per cent beer, and the county is wet as to fourteen
(14%) per cent beer?'
"An unusual situation has again arisen in this
county and ,Iwould like to give you a little of the
history so you may answer this question. In 1937 all
alcoholic beverages were prohibited in the county; in
1936 four (4%) per cent beer was legalized within the
county; later an election to legalize all alcoholic
beverages failed to carry; in 1939 four (4%)per cent
beer was legalized in the aounty; in 1941 four (4%) vir
cent beer was prohibjted in the county: and in 1942 the
sale of fourteen (14%) per cent beer and wine was
legalized. tiring the time that the county was wet as
to the sale of (4%) per sent beer Precinct 2 and the
City of Lyford, by local option elections, voted to
prohibit the sale of four (4%) per cent beer.
"The situation is in short that we have a precinct
and a city in the county which are dry as to the sale
of four (4%) per oent beer, and the county is wet as
to fourteen (1496)per cent beer and wine. There have
Honorable James W. Strawn, page 2 O-4466
been no city or precinct elections to prohibit the
sale of fourteen (14%) per cent beer and nine.
"The law is well established in the casss show-
ing that a county wide election oan in no instanoe
have the effsot of legalising intoxioante in dry
precincts or cities. These cams ars set out in
numerous opinions handed down by you and for that
reason ars not pointed out. However, in all of those
oases there has never been a situation, in so far as I
am able to determine, whore the question of various
degrees of wetness wsre involved--it was just a question
of whether the subdivision was net or dry.
"You will notice in this instance that the
preoinot and oity in question are not dry as to
fourteen (14%) per cent beer and wine sinae that
issue and the issue on prohibiting all alcoholio
beverages have never been voted on by them as units.
It would therefore seem that the only question in-
volved is whether or not said subdivisions may sell
beer or four (4%) per sent and under, because it
seems alear that they oan sell beer and wine contain-
ing alaohol between four (4%) and fourteen (14%) per
cent. After considering the question very saricurly
I am inolined to the view that the status of said
subdivisions ae to four (4%) per cent beer has no
effect at this time because the entire county is
wet a8 to fcurteen (14%) per cent beverages. At
any time in the future when the county was wet ae
to only four (4) per cent beer, then the status would
be material and they would be dry as to the four (4%)
per cent beer. But, under the present oondition, the
status on four (4%) per cent bser is one whioh is not
to be oonsidered at this time.
"The argument oan be advanced that these sub-
divisions are dry ae to four (4%) per cent beer
and that no vote by the oounty, a6 a whole, ban in
any way have the effect of legaliring the eale of
light beers in said subdivision. This argument i8
sound and must be aooe ted ie the question 81)to the
statue on the four (4%P per sent issue Is considered
material.
"I am inclined to think that said subdivieion6
are wst for the sale of beer and wine up to fourteen
(14%) per oent and that they will remain so until suoh
time as they vote for prohibiting the sale of beer
and wine not to exoeed fourteen (14%) per oout."
Honorable James W. Strawn. page 3 O-4466
Ry virtue of the Texas Liquor Control Act (Article 868-32,
Vernon's Annotated Penal Code) any county in the State, justice precinct,
or any incorporated city or town, in compliance with said Act, may hold
a local option election to determine whether or not the sale of liquors
shall be prohibited or legalited in such county, justice precinct, or
incorporated city or town.
For the purposes of this.opinion, where you have referred tc
"Precinct 2" and the city of Lyford, we assume that you refer to a
justice precinct and an incorporated tomn.
Prcm the facts stated in your letter, as quoted above, it
is apparent that in 1941 by local option election the sale of beer not
containing alcohol in excess of four per oentum by weight was prohibited.
Therefore, it naturally followed that all alcoholic beverages mentioned
in the Texas Liquor Control Act could not be legally sold. However, in
1939, the county as a whole, by local option legalised the sale of beer
which did not contain alcohol in excess of four per centum by weight.
During the time the sale of beer not containing alcohol in excess of
four per centum by weight was legalized by a looal option eleotion, the
above mentioned justice precinct and the City of Lyford prohibited the
sale of such boor by a local option election and under the facts stated,
said precinct or city, as such, has not changed their status,
Vnder the facts stated, in 1942, the~oounty as a'whols legal-
ized the sale of malt and vinous beverages not containing aioohol in
excess of fourteen per centum by volume by local option election. Al-
though the ccuntyas awhole by virtue of said election was "met" with
reference to the sale of malt and vinous beverages not containing aloahol
in oxcoss of fourteen per aentum by volume the status of the precinct
and city above mentioned remained the same as established by the last
local option election held in such precinct and city. By virtue of the
last local option election hold in said precinct and oity, each was
"dry" as to all alcoholic beverages mentioned in the Texas Liquor Control
Act.
We think that it is well established that the status of the
above mentioned precinct and city mill remain dry as established by
the last looal option election in each, until the status of each is
changed by a local option election. The fact that the county as a
whole has legalieed the sale of malt and vinous beverages not contain-
ing alcohol in excess of fourteen per centum by volume does not alter
cr change the status of the precinct and city heretofore mentioned.
We think the conclusion reaohed herein is supported by the
following cases: Talley v. Binsan, 96 S. W. (Zd) 94; Rockholt v.
State, 126 S. W. (2d) 4881 Coker v. Kmoicik, 87 Si W. (Zd) 1076, and
Iicuohinsv. Plainos, 110 S. W. (2d) 549. Jackson V. State, 118 S. 'N.
(2d) 313.
Eonorable James W. Strawn, page 4 O-4466
Trustbe that the foregoing fully answem your inq,uiry,WC
are
Yours very truly
ATTORNEY G%;i%RAI.
OF TEXAS
Py s/Ardell Williams
Ardell.Williams
Asaj.stant
Approved Opinior:Committee By-~MB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4140554/ | ?_FFiCEOFTIiE ATTORNEYGENERAL OFTEXAS .-
AUSTIN
SROVERSELLERS .’ .
*~~.RNEI GENERAL
bar ‘Sir:
. ,;,
JGmrable T. Y. Trlinble- page 2
~~nde~fsn&entSchool.District, the adriaiatrative . .
ofriaas or which 0~6 locot entirsly within
CflleaphS h$IIty, TSXM. UUd6r the 6tdUt6 fOi-
laSrin&this lusttUi06Qthe JiarperIudepenZent Echool.
Metrict as it thea stood Wetsalno ~611013upoc to
vote on tha 9uestion of ahathor or not the Re66rva-.
tion CSD should be brought into the irdopdadent
sohool district. A aa~ority of the vctara in both
the &XZO~ school alstrict ona t:leinas*uaent
sclmol distriot Votsd to cOusolldot6 t&o i:emrva-
tion CSD tith the IiarpcrXnfiependentSchool Dis-
trlot, an4 It hns been operatlq 6s such up to ,
the present title. There ore o&sin nunber of
people in tlieconnon sohool diatriot who are &is-
setisfieirwith being in the indaJ.ndaut 6chool
dietriot, an& they have petltloi%d the County .
Jwlge oi:Kerr County, Taxas,'to oall‘an eleotlon
to 0sterzdna .Q@athar.or not thay ahall withdraw
from the lri~ependantsohool dlstrlct. The Comity
Judge of frerr.County,Texas, hasmllad the aloc- .
titm sad set lt.for the 4th day..or~OYa~bbsr, A. D.; _
1944. The notloas were. Rostad only in WJxitwas
fbrmrlp known a8 the Hssarvation Comxx-Sohool
Disttiot. The t;hihgwe ars pert:culorlp interfist-,
ed in la QrhO.Willba the ~u6li?ied VOCBXB in this
election? \:a8.the aomKUi&tion~as hereinabove
rarerred.to a contractual obl.igationC$Ithe part
of*thd.Resezvatlon Cornon School District and the i
Rarper Jhdepeudent School District at the tin6 OP.
the consolS.dationY
"The Art1616 above raterred to ia not of6ar~
as to the qtestion or gualiriad voters, nor'is it
clear 08 to the quest103 or who will csll the eleo-
tion.
Ye woulC also litrsto have au opinion on
whothar or net, if the proponents of the proposed
election to disaolvo ona WitMraw fr0.n tiia Berper
1naoJ%naant School lOstrict .alresuccessful fn
their SISCtiOne what indebtedness, if any, WOUld
the Reservation Common 3chool District;'tni:e-0Jong
witllit ti 6 WithBranaX. For your informnation,
i
honorable T. U:.Triabla - pa&s 3 .
i
=
. . .'dra is a~50#-saikenn!me tex rite on'the.$lOO
oaluatlon in the harper l.kiis~~sndonti
School Ma-
~tflut, 20# is set up for ratfravmnt of the bonda.
and In edditlon thereto thereia a 30# levy .for:'.$'
the purposs of paying the transportation coet'of
title..diatriat.K&t portion of these liabilities
or Cebts would the Reaerv8tlon Gomon School 3X8-
trlct take with it in th*revent It is suocessful .
.ti xithdrawiog fxm the flarper Indey%ndeot School.
: Iiistriot?
.
*humnwh IIa tala eleot%o?~baa been call..edfor ':.
.ioveabnbsr4th, you will ma thai'ft 3.0iqerativd
that we get -an oplnlon ab kmrly a&possible kn~.or-
der to &eter&ne just wherethe district stanbe;,:; .'"~'.
We, OS course, fsal that it is uugair,for tha'~,~.;
._,
:. :;.,:,
:'
Beservatlon Gomon &chool~DSatriot'to tiithdrtiw. '-
under the terse of the Articlesabove qUoted,
einoe the indajxmdsat 'ecbooldistriat has ii%-:
cuxrod co~slderable expeose'iu providing for :
the nacdssary setup to.toke 9are of the addad, : ,;.
pupils. Xrtials 2613 3s got, alear as. td~ the
procedure.to be, used, but WB Bo not want to
‘-permitanything to ba dose that would be in&r-.
lone to the district 08 a xhola. 3ould it Lo '~
necessary fo* you to consult t3o Attorney Gen-
sral’e De~rtmmt with rsfsrance to thlirm.tt$r,
we .urga thst they givt3ua iinmdirte actioa Bo
'that w iarvy de&de tha .oouraeto foll0w.v
artioie 261.5as menda& by the J+8th'Le&L8lature
reada as Poll.ows: .
"(a) Such oqna~olldsteddlotrlcts my, in the
bass manner provide.for their consolidation, be
dl$solvoE end the distriota Included lAorain re-
5tore6 to their ori@.nal stntue, except that it
akgll Cot bs mcsssary to provida collie plRW3
in agoh diatrlct. ii%Cl~.. cuch distriot Elieneo
rastorsd slxl.1aamz%a ar,c! be 1iSbl.efox its prop-
rcta ,?sit.orthe patmtcrtn~ fincno:al cbl.$otions
of t&s consolidated distrlat, suoh poreta part
.I
_,..
;- - :
:
c
’
Eonorable T. 2. .Tri&ia - page 4
m
- td be baSed~@n~the'r~lation the total aSSeSsed
valuation of all property in the dietrio> bears
to the total assessed valuation of property in
the cariolldated diatriot, as shotrnby the as-..
8efmIent rOll8 Oi the histriOt for thu CukXWIt
year. Go election for the dissOlut$On of said
consolidated district5 shsll be held wit41 three
13) years hsva a~apced after the date of :the elec-
tion et whrfiich.such
di8triCt8 w6ro oousolidate,d.
'(b) On the petitlo;?of twinty (20),or a
eiajority,of the ,leyally quelified Voters of eni,’
demon School dlSt&t, or indeFeudent school dls-
trict, praying.for the withdrawal fron a consoll-
.dated district,-if three ~,(3)years hava el6;seU
after ths ,dat5 0f the.eleetlon at~whlch auoh die-
' .trlots w8re OonsOlldated, tha.Couuty &d&e shall;
: ~usus~an order for 8n election to be.heid in 'the
district desiring oithdrawssl..The County Judge.
shall give notioe of the date of suoh election
by publlcetion of the order.in.socw newopaper~:
publiahdd.in the county fox twent (20) d8y5 .~:
prior to the date on ~~hlch such 8I scticxiaare
.ordered, or by post&go notAce.of such oleoti.on
in the distriot desiring the election. The'CM-
missionera Court 8halJ.nt its noxt maeting,can-~
vasj the returns of such election, and if th.e
.votee Oa8t in salh di8trict show a msjority in
favor of.wlthdrswing fkos the oonsolldation, the
Coart Sfld.1 deolare th,edistriot sevarod and it
shall be rostor+d to its original statls. i%oh
such Uistriot whtm .so restore6 Shall Asnu.na and
be liable for its prorata part of the OutStend-
ing financial oP?igaticos of the consolidated
dintrict, euch prorata part to be based cn thiore-
lation tta total aS5essed valuation of all pro-
party in the Uls.$rIctbears tc ttr,tots1 S8sesSeU
v8luatiOXLOf Fl‘opcJrty in th6 COn50lidatLiddie-
trict, CS $:2&n by the essseanant roll.50f the
qbtrict for the current year."
Xe'do net ?aSs upon the ~co~.st'ltutionality~
of thi5
Articl~e; s2nce %-a hold that p?ern~,raph -(b) of mid Article
ia inapplicable to ccnsolldatad oounty L1.3,~
districts,
Since it loec net .vzkeany prsvision Par the quclifiad
voters in tbo tilatrictoin ~aoh county to partiCipsQ
.
.
_ _..: .- _._ L%
IIonokable'2.&. Trimble - pege 5
=
>
in the election, cur dcee it cm+iri any provision es to which
County auag3 shaJ.1ord3r the slsctiofi.
Tbo .o>se"or County s2h00i zwsteas'cr mihel$9 county
et al., .vn. state et al., 35 S. I,. (2nd) lCO1, lovolved the
question of ttie 6l;tfiority or t?;e couctg 5~x01 i+ra of r;lmb~ls,
County to'detsc11frox 0 COBs2lidst9d county lim Snde~ehd9nt
echocl district, lyi&?,In Zuunels ma Col9.x~ Couhtios, cer-
tain territcry lsing in Eu&ne16 ~Czxntyazs attach t:io3uzfJto
a co&don ochctl djstrlct situated xii~llyr:ftMu Xumels Cotity.
3%~ oourt held this coal0 not be tiorrs wlthuut the convent of
the Cole-*n County School Bo.ird. i:'e qwte the following ex-
carpts from the ojzinionot th,aocwt:
.
"1% is fundn3ent61 t&it tha Couoty trcstess
'of one county canmA alone crest0 a district uca-
‘~l;oaedor territory lying ln t~o~'oountiaa;and
as.iipractical mtter it would follow thut where
a .couzty,lIhs aogsolidetsd.indepehd6Et school
district has bsen oraated by the joint action
'ot.both countho, It:neoesa5rll.yrolloas that
: . that $ietrlct cannot be abclished or chsngkd
except hy t&8 consent-of-the'county,sc!~ool a_
trust996 of each county hnvigq tarrlmry eon-
talqad therein._! . .
'.
,I ~. and tvea& clear.5i1'the. vl& t&'t: i-:
drtial~e27&2f doss n&t ,petrmit the oowty trust905 of
oh9 oowlty to detach any portion of tho territ~orp 1
of 5 ccuoty 'lineschool.distriot and ettsoh ths a..
,
sme to snother district, viithout tb6 cohtient
aad wxourrent action of the trustsoa of's-~h
_ county hovlng territory In the county line ciis- . .
trl.ct . To pamit. such wouZd csune Icterntisble
,. conf~,jsion am3 would pemit one Turty to tk3
: cc5solPa;itionncrsaE7;9fit to .%sztrey thTrtnsre.e-
merit, GT s~rfously affect it Pft!lGUt the CG;I-
CUT\~CS:CC or oojstint of the othar party to tiie
agreex33nt.
,.'
5 : :
I
f Fran ths o~!inlonOf’the ooilrt$a t.lS‘se33 oaae
r* qf2ote E,heSQllowiIg:
t Vhe aoaeolidation of the triodintrlcte in
questiortwas hlrdeadar Article ZFC6 (%GY. St, '1925)
i as azeadod on sereral occaslcw (Verzi6nt!z Amo.
i: cio. St. Art. 2506) by a vbte af the paor of the
: two distr$cts atfaoted. S3ac!%t&o d3strlcto W6Xb
plrtlg Ia txo colmiea, it reql3.rRdths action Of
1 tha officiale of both xounti~s to efTcct .tna coo-
r sclidation; am3 tha csnsnlidatsd district tsas
f legally treeted. Art~clc 2Y15 povidas that
~soc~.O6a~sfideCsd,t'iatriots'ltog in th6 sane
6 meaner prorldad Sor thtsiroocaolidatlon be die-~
solved.aad t~bo districts izcludad tbareln re-
stored to’their or&inal status. I This prcvis%on
r. . ... relates MXQ particulnr;lyto coaoollduted dis-
:
*. . tricts nhvll~wlthJn ORQ couunt so, trlaso-
aa wst nstrue iT"IzL*
in..comection with
"-sttitntesrel1~tlnq, to ~aountjy line seik%l disr
triats; .aod it neoesssrily Sollows.thrt In
1. :' county line school diotriots~,either IIItheir
g craotioa or abolition, or in tha ohan@,,i~of?
their diatrfot boundwias, the .school autnoti-
$
_1 itiao of both couutioa or nil aounties affected :
should act to#pther in Koch J;18tters. * (It%llcs
oura).
1 ‘.
i I% think it is clear from tt:Bforegoing thst it
1 . TOquire6 th6 ROtiGn Of th6 ofxYcials.of bath 06Unti98, ox
or alf. counties, conoernatI, szid that an 0leCtiGn ordered
i, by the County Zudge of Zbrr County alone would ba inef+"eo~
i tive.to diseolvo the county line consolfdated district.
3
Aa.elsctiou would hsra to be ordered and held in bbth
% counties, but, 8~ etcted in tha opinion cited herein a-
I' box-a, ArtiCl6 2E1.5 3.8 nt‘pllC3bl6 Only t0 aonso11datsd
dlst,riOts lyfrpq; wE:OlI~y %ithin 01:B CCUllty. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3212284/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00254-CV
DEBORAH LOGSDON APPELLANT
V.
KERRY OWENS APPELLEE
----------
FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 096-279970-15
----------
MEMORANDUM OPINION1
----------
Appellant Deborah Logsdon appeals from the trial court’s summary
judgment in favor of Appellee Kerry Owens, the court-appointed receiver in
Logsdon’s divorce. Because we hold that the trial court properly granted
summary judgment on the ground that Owens has derived judicial immunity, we
affirm the trial court’s judgment.
1
See Tex. R. App. P. 47.4.
Background Facts
In early 2012, Deborah filed for divorce from her husband Mark Logsdon
(Mark) after almost twenty-eight years of marriage.2 During the marriage, the
couple started and ran Champion Sweeping Company, which performed parking
lot, property, and building maintenance.3 In July 2012, the family court signed an
agreed order appointing Owens as receiver “to preserve and immediately protect
all of the property of the parties.” The order authorized Owens to do “any and all
acts necessary to effect the proper administration and lawful conduct of th[e]
receivership, including . . . any other acts in regard to the aforesaid property (real
and personal) as ordered herein by this Court.” The final divorce decree ordered
Owens to sell “Champion Sweeping and all assets, equipment, tools, implements
and related items . . . under terms and conditions determined by . . . Owens.”
The net sales proceeds were to be distributed 25% to Deborah and 75% to Mark.
On appeal, this court modified the divorce decree to delete an award of
attorney’s fees to Mark for defending against Deborah’s tort claims.4 We affirmed
the decree as modified, upholding the family court’s finding that Deborah had
committed actual fraud on the community and stating in our opinion that in the
month after Mark admitted having an affair, Deborah “began depleting the
2
Logsdon v. Logsdon, No. 02-14-00045-CV, 2015 WL 7690034, at *1 (Tex.
App.—Fort Worth Nov. 25, 2015, no pet.).
3
Id.
4
Id. at *1, *12–13.
2
Champion Sweeping account; she wrote backdated checks, cashed them, and
transferred the money into accounts in her name and in [her s]on’s name.”5
Owens sold off the company’s assets by auction instead of selling
Champion Sweeping as a going concern. Owens sold the tangible assets of
Champion Sweeping for a total of $374,763.18. His office staff provided both
parties the results of the auction, with a list of the items sold and a description of
how the proceeds were to be distributed, both by line item and in toto. Champion
Sweeping’s business name, goodwill, and customer lists were not sold.
Before the auction of Champion Sweeping’s assets, Mark formed a new
sweeping company. Mark purchased some Champion Sweeping assets at the
auction for use in his new business. Mark also kept the same cell phone and
phone number that had been acquired for Champion Sweeping for his new
business.
At the hearing on Owens’s motion to distribute the auction proceeds,
Deborah did not complain that the Champion Sweeping name, goodwill, or
customer list had not been sold, nor did she complain that Owens had failed to
keep her informed. At the end of the hearing, the family court granted Owens’s
motion and found that he had performed his duties as receiver regarding the
auction of Champion Sweeping.
5
Id. at *1, *2, *5–7.
3
Deborah sued Owens and Mark. She claimed that Owens’s failure to sell
the business as a whole allowed Mark to use all the equipment and intangible
assets from Champion Sweeping for the benefit of his new business. She sued
Owens for breach of fiduciary duty, fraud, negligence, and gross negligence.
Against Mark, she asserted claims of fraud, negligence, and gross negligence.
At a deposition, Owens, who at least at the time of the filing of his motion
for summary judgment was still the receiver concerning those “assets, financial
accounts, real and personal property and other issues” that had been placed
“under his authority,” admitted that he had “always felt that [the business] would
[have] more value if it could be sold in its entirety.” He testified that he believed
that the business had been valued at between $500,000 and $600,000, if not
more. He also testified that he did not market the business as a whole because
he was not asked to market it, he could not get a noncompetition agreement from
both Mark and Deborah when one broker showed interest, and Mark had told him
that requiring a noncompetition agreement “was traditional in their business.”
Owens admitted that he never calculated the component parts of goodwill. He
explained that he believed that Champion Sweeping lost goodwill of any value
when the trial court ordered it liquidated because it was awarded to neither party
and neither spouse would sign a noncompetition clause. While he recognized
that a customer list is a proprietary asset of a business, Owens also testified that
the Champion Sweeping customer list had very little value because “[t]he clients
would come and go.” He clarified that he did not auction the list off because it
4
had no value. He later reiterated that he did not auction off the goodwill, the
company name, and the business customer list “[b]ecause they had no value.
No one would buy them.” He based this conclusion at least in part on his
conversations with Brian Rice, the accountant retained to value the business.
Owens filed a traditional motion for summary judgment on three grounds:
(1) he was immune from all claims and causes of action because of derived
judicial immunity, (2) Deborah suffered no harm from his actions, and (3) she
could not have justifiably relied upon any of his representations. The trial court
granted the motion without specifying the grounds. Owens filed a motion to
sever, the trial court severed Deborah’s claims against Owens into the underlying
cause, and Deborah timely appealed.
Standard of Review
We review a summary judgment de novo.6 We consider the evidence
presented in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding evidence
contrary to the nonmovant unless reasonable jurors could not.7 We indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.8 A
defendant is entitled to summary judgment on an affirmative defense if the
6
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
7
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
8
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
5
defendant conclusively proves all the elements of the affirmative defense.9 To
accomplish this, the defendant-movant must present summary judgment
evidence that conclusively establishes each element of the affirmative defense.10
When a trial court’s order granting summary judgment does not specify the
ground or grounds relied on for its ruling, summary judgment will be affirmed on
appeal if any of the theories presented to the trial court and preserved for
appellate review are meritorious.11
Derived Judicial Immunity
In her first issue, Deborah contends that Owens acted outside the scope of
his authority as receiver in the divorce and that he therefore does not have
derived judicial immunity. As this court has explained in a case on point,
When entitled to derived judicial immunity, a person appointed to
perform services for the court receives the same absolute immunity
from liability as a judge acting in his or her official capacity. Judicial
immunity can attach to certain nonjudges because the policy
reasons for judicial immunity—protection of individual judges and of
the public’s interest in an independent judiciary are also implicated
when judges delegate their authority, appoint another to perform
services for the court, or allow another to otherwise serve as an
officer of the court. In those circumstances, the immunity attaching
to the judge follows the delegation, appointment, or court
employment. The person acting in such a capacity thus also enjoys
absolute immunity, which is known as derived judicial immunity.
9
Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert.
denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c).
10
See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
11
Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
6
Texas employs a “functional approach” to determine whether
someone is entitled to derived judicial immunity. This approach
“looks to whether the person seeking immunity is intimately
associated with the judicial process” and whether “that person
exercises discretionary judgment comparable to that of the judge.”
The functional approach looks to the nature of the function
performed, not the identity of the actor, and considers whether the
court officer’s conduct is like that of the delegating or appointing
judge.12
Further, when a function is entitled to derived judicial immunity, that
absolute immunity covers “every action taken with regard to that function—
whether good or bad, honest or dishonest, well-intentioned or not.”13 Thus, the
negligence and bad-faith exceptions Deborah relies on from dated caselaw do
not exist under the current functional approach.14
12
Conner v. Guemez, No. 02-10-00211-CV, 2010 WL 4812991, at *3 (Tex.
App.—Fort Worth Nov. 24, 2010, no pet.) (mem. op.) (citations omitted).
13
B.K. v. Cox, 116 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2003,
no pet.).
14
Compare Dillingham v. Putnam, 109 Tex. 1, 5, 14 S.W. 303, 305 (1890)
(“[A]s a defendant, a receiver is not personally liable even for costs. In case a
judgment is rendered against him, unless in cases in which his own wrong
created the liability, he is not liable personally[.]”), and Best & Russell Cigar Co.
v. William Reese Co., 210 S.W. 317, 318 (Tex. Civ. App.—Fort Worth 1919, no
writ) (“The sole liability of the receivers, except in cases in which they are
personally at fault (and nothing of that character is alleged in this suit) is official;
and when their official career ceases, and when the property delivered to them
as receivers has passed from their hands under orders of the court that
appointed them, and they have been by that court discharged from their trust,
then no judgment can be rendered against them.”), and Harrison v. Coutret, 157
S.W.2d 454, 456 (Tex. Civ. App.—San Antonio 1941, writ ref’d w.o.m.) (“[H]aving
acted within the authority given him in the order appointing him, he is not
responsible for any loss which may have accrued, unless he acted in bad faith or
failed to use ordinary care and discretion in the management of the business.”),
with Dallas Cty. v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002) (“When entitled to the
7
Deborah’s reliance on Alpert v. Gerstner15 is likewise misplaced. Citing
Alpert, she argues that Owens was acting not as an arm of the court but as a
representative of Mark and her when he was ordered to sell Champion Sweeping
and that she was a beneficiary of Champion Sweeping’s liquidation. But as this
court explained in Conner, a case involving a divorced husband suing a receiver
for breach of fiduciary duty,
In Alpert, the court had appointed Gerstner as a receiver for the
plaintiffs’ trusts and granted him “the same powers and duties as a
trustee.” The Alpert plaintiffs argued that Gerstner should not be
immune from various acts because they were not normal judicial
functions. The court determined that Gerstner was entitled to judicial
immunity for some acts and not for others. That is, Gerstner was
entitled to immunity “to the extent that she was authorized, as a
receiver of the property in the Trusts, to take charge and keep
possession of the Trust property.” But as to her actions regarding
investing and managing the stock portfolios, “Gerstner was acting as
a representative of the interests of the beneficiaries and not as an
agent of the Court.” The court went on to cite a number of cases, all
discussing the fiduciary duty that arises out of a trustee
relationship—not, it is worth noting, arising out of a receivership.
One of the cases Alpert cites and distinguishes is Ramirez v.
Burnside & Rishebarger, L.L.C. In Ramirez, the plaintiff complained
that the receiver falsely represented the condition of a house the
plaintiff purchased from the estate. The court held that the language
of the order, which allowed the receiver to “sell, negotiate, transfer or
redeem any . . . real property” of the estate, was a broad grant of
power and the receiver was immune for all acts associated with that
duty, including “mak[ing] false promises to third parties concerning
protection of derived judicial immunity, an officer of the court receives the same
immunity as a judge acting in his or her official judicial capacity—absolute
immunity from liability for judicial acts performed within the scope of
jurisdiction.”).
15
232 S.W.3d 117 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
8
the property.” The language of the order granting Mr. Conner his
powers of receiver much more closely resembles that of the Ramirez
order than that of the Alpert order.
In Alpert, the fiduciary duty owed by the receiver to the
beneficiaries was not created by her appointment as receiver, but
through the grant of power as trustee. Here, the complained-of
actions and omissions all fall squarely under the authority delegated
to Mr. Conner by the order appointing him receiver. The sale of the
stores was also approved by the court in a later order, providing
further evidence that Mr. Conner's role was as an arm of the court.16
Likewise, the broad language of the agreed order appointing Owens the
receiver and of the divorce decree more closely resembles the Ramirez order
than the Alpert order.17 Just as the complaints about Conner concerned his
conduct as a receiver, Deborah’s complaints about Owens “all fall squarely under
the authority delegated to” Owens by the family court.18 There is no evidence
that Owens had a relationship with the Logsdons outside his role as receiver.
Finally, the family court’s finding that Owens “ha[d] performed his duties as Court
Appointed Receiver in regards to the auction of Champion Sweeping” further
supports the conclusion that Owens acted as an arm of the family court in selling
Champion Sweeping.19
16
Conner, 2010 WL 4812991, at *3–4 (citations omitted).
17
See id. at *3; Ramirez v. Burnside & Rishebarger, L.L.C., No. 04-04-
00160-CV, 2005 WL 1812595, at *2 (Tex. App.—San Antonio Aug. 3, 2005, no
pet.) (mem. op.).
18
See Conner, 2010 WL 4812991, at *4.
19
See id.
9
Owens proved as a matter of law that all of his acts and omissions
Deborah complains of occurred in his capacity as a receiver and thus in his
service as an arm of the family court. He therefore has absolute judicial
immunity from liability.20 The trial court correctly granted summary judgment on
Owens’s affirmative defense of derived judicial immunity. We overrule Deborah’s
first issue.
Conclusion
Because our holding on Deborah’s first issue is dispositive, we do not
reach her remaining issues.21 Having held that Owens is entitled to absolute
judicial immunity, we affirm the trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DELIVERED: June 9, 2016
20
See id. at *3; see also Halsey, 87 S.W.3d at 554.
21
See Tex. R. App. P. 47.1.
10 | 01-03-2023 | 06-11-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3212151/ | UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
Airman Basic STEVEN M. CHAPMAN
United States Air Force,
Petitioner
v.
UNITED STATES,
Respondent
Misc. Dkt. No. 2016-07
9 June 2016
Sentence adjudged 15 July 2002 by GCM convened at Cannon Air Force
Base, New Mexico. Military Judge: Patrick M. Rosenow.
Approved sentence: Dishonorable discharge, confinement for life with the
possibility of parole, forfeiture of all pay and allowances, and reduction to
E-1.
Before
MITCHELL, DUBRISKE, and BROWN
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
MITCHELL, Senior Judge:
Petitioner previously filed a petition for a writ of habeas corpus. We concluded we
did not have jurisdiction for the writ of habeas corpus and denied the petition. Chapman
v. United States, 75 M.J. 598, 599 (A.F. Ct. Crim. App. 2016). Although we did have
jurisdiction for a writ of error coram nobis, we determined Petitioner had not met the
threshold requirements and denied the writ. Id. at 601–02.
Petitioner asks for reconsideration of our published decision. Petitioner received a
copy of the decision on 29 February 2016. He filed the writ seeking reconsideration on
4 April 2016. Our rules required a request for reconsideration to be filed within 30 days.
A.F. CT. CRIM. APP. R. PRAC. AND PROC. 19(b) (2013). Because this writ petition was filed
beyond that window, we have docketed it as a new petition with our court. Petitioner
argues that we misapplied or overlooked the law and that we do have jurisdiction over his
habeas corpus petition. We have considered this writ petition and again deny the writ.
This court does not have jurisdiction over habeas corpus petitions when there is a
final judgment as to the legality of the proceedings and all portions of the sentence have
been ordered executed under Article 71(c)(1), UCMJ, 10 U.S.C. § 870(c)(1), and the case
is final under Article 76, UCMJ, 10 U.S.C. § 876.
On consideration thereof, it is ordered that said petition is hereby dismissed for lack
of jurisdiction; no further filings on writs of habeas corpus will be accepted or docketed by
the court on this matter.
Accordingly, it is by the court on this 9th day of June 2016,
ORDERED:
That the petition for extraordinary relief in the nature of a writ of habeas corpus is
hereby DENIED.
FOR THE COURT
LEAH M. CALAHAN
Clerk of the Court
2 Misc. Dkt. No. 2016-07 | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4051158/ | ACCEPTED
03-14-00645-CV
3959715
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/30/2015 9:32:50 AM
JEFFREY D. KYLE
CLERK
A TTORNEY G ENERAL OF T EXAS
RECEIVED IN
3rd COURT OF APPEALS
ENRIQUE M. VARELA AUSTIN, TEXAS
PHONE: (512) 463-2120
Assistant Attorney General 1/30/2015 9:32:50320-0667
F AX : (512) AM
General Litigation Division EMAIL: enrique.varela@texasattorneygeneral.gov
JEFFREY D. KYLE
Clerk
January 30, 2015
Jeffrey D. Kyle, Clerk
Court Of Appeals
Third District of Texas
P.O. Box 12547
Austin, Texas 78711-2547
RE: Court of Appeals Number: 03-14-00645-CV
Trial Court Case Number: D-1-GN-13-003462
Dear Mr. Kyle:
I undersigned attorney will be on vacation from July 9, 2015 – July 17, 2015 we
respectfully request that any responses, hearings, conferences, trial or other court appearances in
the above-referenced matter not be scheduled during this period.
Thank you for your courtesy and cooperation in this matter, and should you have any
questions please feel free to contact me.
Sincerely,
/s/Enrique M. Varela
ASSISTANT ATTORNEY GENERAL
GENERAL LITIGATION DIVISION
cc: James J. Sullivan (via-ECF)
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2120
WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer ∀ Printed on Recycled Paper | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430895/ | The defendant, Arthur H. Landes, was charged in a county attorney's information with the crime of rape upon one Evelyn Conrad, a female child under the age of 16 years. He pleaded not guilty, and upon the trial of the case, after the state had rested, he moved for a directed verdict of acquittal. This motion was sustained by the court, and the state appeals.
One of the grounds of the appellee's motion to direct a verdict in his favor was that there was no evidence corroborating the prosecuting witness and tending to connect the defendant with the commission of the crime with which he was charged. Practically all of the briefs and arguments of both appellant and appellee are directed to the question thus raised.
The defendant was a farmer living about five miles west of Grinnell, in Jasper county, Iowa. His family consisted of himself and his wife only. Some time prior to November 9, 1931, the defendant had made inquiries in regard to taking into his home a girl from the Iowa Soldiers' Orphans' Home at Davenport. *Page 203
On November 9, 1931, after application blanks had been sent to him, he wrote a letter to the superintendent of the Iowa Soldiers' Orphans' Home, and again on November 23d he wrote a second letter to the superintendent and inclosed the application blanks which had been executed by himself and his wife. It appears that the application was approved, and on January 31, 1932, Evelyn Conrad, the prosecutrix in this case, went to live in the defendant's home and continued to live there until July 23, 1934. On July 21, 1934, Mrs. L.J. Comparet, a state agent of the bureau of child welfare, in response to a letter containing some complaint about the treatment of the child, Evelyn Conrad, paid a visit to the Landes home where she talked to Mr. and Mrs. Landes. She also had a private conversation with Evelyn Conrad during the course of a short automobile ride, after which Evelyn was returned to the Landes home. On July 23, 1934, in response to a further complaint concerning the treatment of Evelyn Conrad, Mrs. Comparet again returned to the Landes home. When she first called on this day, Mr. Landes was not present and she had a conversation with Mrs. Landes in which she told her that she had received a letter stating that there were suspicions as to the relations existing between Mr. Landes and Evelyn. After talking to Mrs. Landes and Evelyn Conrad, Mrs. Comparet went away and returned toward evening, at which time she talked to both Mr. and Mrs. Landes. She again left the Landes home about 7 or 7:30 o'clock in the evening, and again returned between 10 and 11 o'clock that night. On this last visit she took Evelyn Conrad with her, and two days afterward, on July 25, 1934, Evelyn was subjected to a physical examination by Dr. Knight E. Fee, the home physician of the State Juvenile Home at Toledo. Before this examination Evelyn had already told Mrs. Comparet that she had sustained sexual relations with the defendant, Arthur H. Landes, and the examination conducted by Dr. Fee showed that there was no trace of the hymen. Evelyn was not returned to the Landes home, and, on August 2d, the defendant was arrested and brought to the sheriff's office at Newton, where he underwent some questioning in the presence of the sheriff, the county attorney, and Mrs. Comparet.
Upon the trial of the case, the prosecutrix testified as to the acts of sexual intercourse with the defendant. There was no other direct evidence corroborating the testimony of the prosecutrix *Page 204
and tending to connect the defendant with the commission of the offense. Section 13900, Code 1931, provides:
"The defendant in a prosecution for rape * * * cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense."
It is contended by the appellant that the circumstantial evidence was such as to constitute sufficient corroboration and compliance with the statute. Many circumstances are set out by the appellant which it is claimed are sufficient to constitute this corroboration. It is claimed that some of these circumstances show that the appellee deliberately created the opportunity for intercourse with Evelyn Conrad; that other circumstances show that no other person except the appellee had an opportunity to have sexual intercourse with her; and that still other circumstances, consisting of statements and conduct of the appellee, show a guilty knowledge on his part.
The circumstances which the appellant claims show that the appellee deliberately created the conditions under which he later had sexual relations with the prosecutrix consist of statements made in the application signed by appellee and his wife, and of statements contained in the two letters written by appellee to the superintendent of the Soldiers' Orphans' Home. It is well settled that evidence that a defendant had opportunity to commit the crime of rape does not constitute the corroboration required by the statute. It has been held, however, that, if the evidence shows that the defendant created the opportunity for the specific purpose of committing the wrongful act, this would constitute sufficient corroboration. In the application made to the Soldiers' Orphans' Home it was stated that the defendant was 50 years of age, his wife 49 years of age, and that they desired a healthy, normal girl, not over 14 years of age. In the letter of November 9, 1931, to the superintendent of the institution, the appellee stated: "We don't want a girl to be a drudge but an infusion of new life into our home and we'll do all in our power to make her contented and happy. * * * But I am not willing to send her to town to high school as I can't move there and too many girls have gone to wreck by going there alone. * * * I am in such haste I do not know if I have expressed myself clearly but we want a girl who has good health, normal intelligence, is *Page 205
reliable, pleasant and obedient, and willing to help maintain a good comfortable home. I'm not rich but can give a good home to some girl who is not so well situated." And in the letter of November 23, 1931, he said: "I can imagine that she may have some misgivings about coming to a strange place, to strange people, and knowing nothing of what fate may await her. I can imagine myself in her place. She will have no need to worry. If she is the kind of girl we want, one who will be obedient and try to help us and be cheerful about it she shall have the best of treatment and of care. There are certain qualifications she must have and upon which we cannot compromise. She must be healthy and normal physically and mentally and passably good looking. She must be sincere, reliable and pleasant. We feel these qualities are not too much for which to ask. * * * If you have no girl of 14 years who in your opinion would be what we want we might take one 15 but not older. We think 14 better. Or one 13 if well advanced and developed."
The application in question was signed by both the defendant and his wife, and we see nothing in the statements of the ages of the husband and wife and the fact that they desired a normal, healthy girl of 14 years of age which tends to show that the appellee was endeavoring to create an opportunity for sexual intercourse. Nor do we see anything in the excerpts from the two letters which, even when taken by themselves and without reference to the context of the letters in which they appear, indicates an intention to create an opportunity for the wrongful acts which it is claimed were later committed. In our opinion, the statements referred to are as consistent with good intentions as they are with any intention to create a condition under which the appellee could commit the acts with which he is charged; and, when we consider these statements in connection with the full context of the letters in which they appear, we think that the construction for which the appellant contends could only be reached by giving to the language relied upon a strained and unusual meaning. Moreover, the application and both letters were signed by the appellee in November, 1931, the prosecutrix went to the defendant's home on January 31, 1932, the first act of sexual intercourse is claimed by the prosecutrix to have taken place May 13, 1932, and the first suggestion of sexual intercourse was made to her by the appellee only a short time before the latter date. It seems quite probable that, if the appellee had *Page 206
been actuated by improper motives at the time he began to make arrangements for the placing of a young girl in his home, he would not have waited until about six months from that time and about three months from the time Evelyn Conrad came to live in his home before making any attempt to take advantage of the opportunity which it is claimed he thus created. In our opinion, the statements in the application and in the letters which are relied upon by the appellant as showing that the defendant created the opportunity for sexual intercourse with the prosecutrix are not sufficient to establish the corroboration required by the statute.
It is contended by appellant that the evidence is sufficient to show that the appellee was the only person who had an opportunity to have sexual intercourse with Evelyn Conrad during the time that she resided in his home. The circumstances relied upon to support this contention are that the defendant himself, in conversation with Mrs. Comparet, the state agent, stated that, if anything was found wrong with the prosecutrix he did not know how it could have happened; that there were some bad boys around the community but she did not go out with any of them; that there were only two occasions upon which Evelyn Conrad remained away from the defendant's home over night, and that on both of these occasions there was no opportunity for any other person to have sexual intercourse with her; and that on one occasion the defendant's wife was absent for a week attending the World's Fair in Chicago, and that on another occasion she was absent about two weeks while a relative of hers was sick, and on neither of these occasions was any other person living in the house with the defendant and the prosecuting witness. Appellant argues and cites cases to support its contention that this evidence not only showed opportunity on the part of the appellee, but excluded opportunity on the part of any other person, and that it therefore tended to connect the defendant with the commission of the offense and was a compliance with the requirements of the statute. In the cases cited by the appellant, however, the evidence was such as to establish the commission of the crime at a particular time and place and to preclude the probability of any other person having had intercourse with the complainant at the time and place when and where the offense was alleged to have been committed. In the case at bar, the only evidence as to the particular act of intercourse alleged in the *Page 207
indictment was that of the prosecutrix herself. The only evidence other than that of the prosecutrix tending to show that any one had had intercourse with her was that of the two doctors who examined her. One of these doctors testified that a little fringe or edges of the hymen remained, that there was nothing to indicate when the hymen had been ruptured, that the condition which he had discovered could have been caused otherwise than by sexual intercourse, that he could not say of how long standing it was, and that it might have been months or years. The other doctor testified that he found no evidence whatever of a hymen, that it is entirely possible that there are girls or women in which that membrane is entirely absent, that there was no way of telling when the hymen had been ruptured or method by which it had been ruptured, and that the condition which he found would not necessarily have been caused by sexual intercourse.
We do not think the circumstances in evidence were such as to corroborate the testimony of the prosecutrix to the extent of connecting the appellee with the commission of the offense and excluding all other persons. The prosecutrix had lived in the defendant's home from January, 1932, until July, 1934. So far as the evidence in this case is concerned, aside from the testimony of the prosecutrix, there is not even a scintilla of evidence tending to show any improper or even suspicious relations between the appellee and the prosecutrix until a few days before the appellee was arrested and charged with the crime. The appellee undoubtedly had the opportunity to commit this crime on many occasions during the two and one-half years that Evelyn Conrad resided in his home. But opportunity alone is not sufficient corroboration under the statute. And while neither the defendant nor any other witness knew of the prosecutrix having associated with any other men or boys, it is a matter of common knowledge that sexual intercourse with a child of her age, if it took place, would naturally be done with great secrecy. Even assuming that the physical condition of the prosecutrix was caused by sexual intercourse, we do not think that it can be said that the evidence in this case is such as to exclude either the possibility or the probability of such intercourse having been with some person other than the appellee.
In this connection we may properly advert to the further contention of the appellant that the court erred in excluding *Page 208
evidence offered by the appellant in connection with this phase of the case. The appellant offered to prove by one John Waldbusser that he resided across the road from the defendant's home, that the driveway and the home of the defendant are visible from his home, and that he had never seen any young men going into the property of the defendant and had never seen Evelyn Conrad keeping company with any boys during all the time she resided in the defendant's home. Appellant also offered to prove by Mrs. Horace Adkins that she had known Evelyn Conrad intimately during all the time that Evelyn had resided in the defendant's home, and that she never knew Evelyn to be keeping company with any boys or men. This offer was rejected by the court, and the exclusion of this evidence is alleged as error. As already said, if the physical condition of the prosecutrix had been caused by sexual intercourse, this undoubtedly would have been carried on in secret, and it seems to us that it is hardly necessary to argue the proposition that even if the evidence which was offered had been introduced it would not have been sufficient to exclude the possibility or probability of the prosecutrix having had intercourse with some other person and thus tend to connect the defendant with the commission of the offense charged.
Finally, it is contended that statements and conduct of the defendant which are in evidence are such as to show a guilty conscience and thus furnish the corroboration required by the statute. On the 21st day of July, 1934, on the occasion of the first visit of the state agent to the Landes home, the defendant stated that he was anxious to adopt Evelyn Conrad. At that time there was also present a witness, James Phipps, who testified that, when Mrs. Comparet took Evelyn in her car for a short ride, he remarked to the appellee, in substance, that appellee would never see the girl any more, and that thereupon the appellee looked down at the floor, looked bad and colored, turned very red, a purply color. It is claimed by the appellant that this constituted evidence indicating a guilty conscience. In our opinion, there would be scant security in the provisions of the statute if testimony such as this could be considered corroboration. At the time this incident is alleged to have occurred, no charge had been made against Landes or any other person in regard to any improper relations between Landes and the prosecutrix. The application signed by the defendant and his wife had indicated *Page 209
that they might desire to adopt this girl, and he had already talked to the state agent about doing so. It is just as probable, if not more probable, that anything unusual or peculiar in Landes' conduct or appearance, when the statement was made to him by Phipps that he would never see the girl again, was caused by disappointment or anger as it was by any consciousness of guilt. Again, it is said that upon the visit of the state agent on July 23d, the Monday following the first visit which was on Saturday, appellee again evidenced an eagerness to adopt this girl; that when told by the state agent that she intended to have Evelyn subjected to a complete physical examination he asked what that consisted of, and, when told that it included everything, heart, lungs, female organs, etc., he said, "Well if you find anything wrong I don't know how it could have happened. There were some bad boys around this community but she didn't go out with any of them"; and that at the end of this conversation he stated that he was going to see his lawyer the first thing in the morning so that he would be prepared for anything that might come up. It must be recalled that, as already said, Mr. and Mrs. Landes had both spoken of adopting this girl in the original application made to the Soldiers' Orphans' Home and that he had again spoken of adopting her on the previous visit of Mrs. Comparet on the preceding Saturday, before anything was said regarding improper relations between Evelyn and himself; that this visit during which the conversation herein involved took place was on the evening of Monday, July 23d; and that on the afternoon visit of that day the state agent had already told Mrs. Landes about a letter which suggested that there might be improper sexual relations between her husband and Evelyn. In view of these circumstances, we see nothing unusual in the inquiry of the defendant as to what the physical examination would consist of, and his statement that if anything were wrong with her he did not know how it could have happened. In our opinion, these circumstances are equally if not more consistent with innocence than with a consciousness of guilt, because, if guilty, instead of saying that he knew of no other boys or men who might have been with her, it would have been most natural for him to attempt to cast suspicion on somebody else. Nor do we see any indication of guilt in the fact that, under these circumstances, the defendant had stated that he was going to see his lawyer. If one who *Page 210
knows or has good reason for feeling that he is about to be charged with an offense can be said to furnish evidence of his guilt by consulting his lawyer, there would be little opportunity left for any one to defend himself without at the same time furnishing evidence tending to prove his guilt, no matter how unjustly he might be charged.
Again, it is said that the defendant on July 28, 1934, in separate conversations with the sheriff and deputy sheriff made statements indicating his consciousness of guilt. Even if the separate statements contained in these conversations be considered apart from the balance of the testimony of these witnesses, as has been done by the appellant, we do not think they constitute sufficient evidence of consciousness of guilt to furnish the corroboration required by the statute; and, when the whole of the testimony given by these witnesses is considered, we think it is utterly devoid of anything tending to establish a consciousness of guilt on the part of the defendant. These conversations contained nothing which might not be contained in the conversation of any innocent man who knew that he was being accused with the commission of a crime, and the fact that they were had with the law enforcing officers, instead of indicating guilt would, to our minds, rather indicate a consciousness of innocence. Again, it is said that on August 2, 1934, after the appellee had been arrested, while in the sheriff's office and talking to the sheriff, the county attorney, and the state agent, upon being advised by the sheriff that the best thing to do was to tell the truth, he said: "I won't tell the truth." It appears, however, that the defendant at no time in this conversation or at any other time or place had ever admitted to any one that he was guilty, that he had consistently denied his guilt, and that in this same conversation the next remark made by him was, "I will not plead guilty to something I didn't do." Great stress, however, is placed upon the fact that the defendant did make the statement "I won't tell the truth"; and that, after making this remark, he hesitated, and after a short lapse of time proceeded to make the further statement in which he said, "I will not plead guilty to something I didn't do." A reading of the full text of the testimony in regard to this incident and a consideration of the circumstances under which the remark is alleged to have occurred convinces us that it cannot be taken as either an admission of guilt *Page 211
or as evidence showing a consciousness of guilt which would be sufficient to supply the corroboration required by the statute.
It may be that the defendant is in fact guilty of the crime with which he was charged. If so, it was a heinous offense and it is most unfortunate that he cannot be punished for it. The law recognizes, however, that offenses of this kind are such that it is in the interests of justice that a defendant be not convicted without the corroboration that the statute requires. If this were not the law, many innocent men might be convicted and unjustly punished because of the desire of a prosecuting witness either to reap vengeance on the accused or to save one who was guilty, or because of some other unworthy motive. It is the duty of courts to use their endeavors to see that the law is carried out calmly and dispassionately. So far as the evidence in this case shows, there is nothing except the testimony of the prosecuting witness and the circumstances to which we have referred to connect him with the commission of the crime with which he was charged. We think the circumstances relied upon were not sufficient, either separately or as a whole, to constitute the corroboration of the prosecuting witness required by the statute. As in the trial court, so in this court, the accused must be considered innocent until properly found guilty. We, therefore, deem it not inappropriate to suggest that the vigor with which the accused has been denounced and the quotations from the poets and from the Scriptures with which appellant's argument is embellished, although perhaps an effective means of appealing to a jury, are scarcely the appropriate method to be employed in seeking to persuade an appellate court.
For the reasons stated in the opinion, the order and judgment of the trial court are hereby affirmed. — Affirmed.
KINTZINGER, C.J., and all Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430897/ | The West Chester Savings Bank brought this action at law against the defendants on two promissory notes. The defendants are husband and wife, J.D. Dayton being the husband and F.M. Dayton being the wife. For the purpose of the present discussion it is sufficient to state that the petition contains only allegations usual in suits on promissory notes. The defendants answer separately. It is only necessary to note that the defendant F.M. Dayton denied under oath that the signature on the notes were written by her or by any one authorized by her to write them. The case was tried to a jury. The court directed the jury to return a verdict against J.D. Dayton for the amount due on the note and also directed a verdict in favor of F.M. Dayton. The bank appeals from the action of the trial court resulting in the judgment in favor of F.M. Dayton.
Preliminary to the discussion of the matters involved in the appeal, it may be well to state that the officer of the bank, who prepared the notes sued on and handled the transaction resulting in their execution, testified that the name F.M. Dayton was written upon the notes by J.D. Dayton. F.M. Dayton testified that she had never authorized her husband to sign her name to the notes and that she did not know that her name appeared on the notes until original notice of this action was served upon her approximately nine years after the execution of the notes.
[1] The notes sued on bear date of March 2, 1923. On March 3, 1923, J.D. Dayton executed a written contract by which he agreed to convey a small tract of real property in the town of West Chester to the bank. The wife did not join in this contract. This contract is in evidence, but its terms are ambiguous and the full purpose of its execution is not disclosed by the record. There is no doubt, however, but what there was some relationship between the execution of this contract and J.D. Dayton's obligations to the bank. On December 19, 1923, J.D. Dayton executed a deed conveying this property. The name of the grantee was left blank. It appears certain that the deed was delivered to the bank. F.M. Dayton joined with her husband in the execution of this deed. She testified that the deed was given to the bank to pay the two notes *Page 66
sued on; but in this connection it must be remembered that she also testified that she had no knowledge that her name appeared on the notes until notice of this suit was served, long after the execution of the deed. Appellant contends that the act of F.M. Dayton in joining with her husband in the execution of the deed is a recognition of the existence of the notes and of her liability thereon, and that in consequence of such recognition of liability, F.M. Dayton is answerable upon the notes notwithstanding the fact that her name may have been written upon the note without authorization. The contention of appellant cannot be sustained for the reason that the record establishes without dispute that at the time of the execution of the deed F.M. Dayton did not know that her name was on the notes. The signature of the wife was necessary to release her distributive interest in the property. There is nothing in the record to indicate that her signature on the deed had any other significance.
[2] The deed above referred to was admitted in evidence. Prior to its admission F.M. Dayton admitted that the deed bore her genuine signature. Notwithstanding the fact that the officer of the bank who handled the transaction testified that the name F.M. Dayton was written upon the notes by her husband and that F.M. Dayton testified in effect that she did not sign her name to the notes, appellant contends that the admitted signature of F.M. Dayton on the deed which was in evidence raised a jury question as to whether the name F.M. Dayton appearing upon the notes was the signature of F.M. Dayton. Appellant relies upon Priorelli v. Guidi, 251 Mass. 449, 146 N.E. 770, and McColl v. Jordan,200 Iowa 961, 205 N.W. 838, as sustaining its position. The facts in the cases relied upon readily distinguish them from the case at bar. There is no dispute as to who wrote the name F.M. Dayton on the notes. Appellant's officer swore the name was written by J.D. Dayton. But appellant contends that it is not precluded from showing that its officer was mistaken, and that the jury had a right to compare the admitted signature on the deed with the signatures on the notes, and was at liberty to find, from such comparison, that F.M. Dayton signed the notes. We do not have the signatures before us. There is nothing to suggest that the signatures bear any resemblance to each other. In a proper fact situation the appellant's contention might be tenable, but under the facts in the case at bar no reasonable person could entertain a doubt concerning the author of the signatures *Page 67
on the notes. The case did not present a fact question for the jury as to whether the signatures were written by F.M. Dayton.
[3] It appears, inferentially at least, that F.M. Dayton was interested as heir or legatee in the estate of one James Nelson. On the 7th day of November, 1931, she executed a conveyance of her interest, whatever that may have been, in the estate of said Nelson to her son for the recited consideration of $1 and other good and valuable considerations. The execution of this assignment by the said F.M. Dayton was established by the evidence and the assignment itself is in the record. At the time the assignment was executed a judgment in a sum in excess of $56,000 rendered against F.M. Dayton et al. was but partially satisfied, the deficiency thereon being in excess of $21,000. The appellant contends that the execution of the assignment by F.M. Dayton is an acknowledgment of her liability upon the notes sued on, the thought being that the assignment was voluntary and made for the purpose of putting the interest of F.M. Dayton in the estate beyond the reach of the bank. Appellant refers to the case of Harmon v. Haas, 61 N.D. 772, 241 N.W. 70, 80 A.L.R. 1131, and also refers us to statements contained in Corpus Juris to the effect that the alienation of property may, under certain circumstances, be admissible in evidence as an admission of liability. In a proper case the alienation of property may be relevant and material as an admission of liability. Relevancy of evidence is dependent upon probative value. There must be some logical relationship between the fact offered in evidence and the fact sought to be proved before the offered evidence is relevant. The undisputed facts in this case do not suggest any relationship between the notes and the assignment to the son. The assignment was of the personal interest of F.M. Dayton in an estate. She did not know that her name was on the notes sued on until after the assignment was executed. In this situation it cannot be contended that the execution of the assignment, even though it be voluntary and without consideration, was an admission of a liability, concerning which she had no knowledge.
[4] Appellant complains because the assignment was not admitted in evidence by the court. It is true that when the assignment was first offered in evidence objections to its admission were sustained by the court, but subsequently the court reversed its ruling and admitted the assignment in evidence. At the time the motion for a directed verdict was sustained in behalf of F.M. Dayton, the *Page 68
court undoubtedly considered the assignment as part of the record. The assignment is in the record before us. In this situation no prejudice could possibly result to appellant even though the original exclusion of the exhibit was erroneous. Before passing from the subject, however, we may say that the exclusion of the exhibit was proper.
[5] The original notes were introduced in evidence against the defendant J.D. Dayton, but objection to their admission as against F.M. Dayton was sustained by the court on account of the fact that the execution of the notes by her or by a person authorized to execute them in her behalf had not been established. In her answer, F.M. Dayton under oath specifically denied having signed the notes as well as the execution of the notes by any other person authorized to execute them in her behalf. The record indicates conclusively that the notes were not signed by her or by her duly authorized agent, and in this situation the action of the trial court was undoubtedly correct.
[6] It has been noted that the action was based upon the promissory notes and that the allegations of the petition are in the form usually used in actions of that kind. Upon the trial of the case, appellant asked a number of questions, the purpose of which it now claims was to show that the proceeds of the notes were used for the benefit of F.M. Dayton. Under the issues made by the pleadings the information sought to be elicited by the questions was clearly immaterial and the action of the trial court in sustaining objection thereto was proper.
There remains but one further objection for consideration. It is that the court erred in sustaining the motion of F.M. Dayton to direct a verdict in her favor. This objection is based primarily upon matters which have been considered in detail. It is sufficient to say that this suit is brought against F.M. Dayton as a maker of two promissory notes and that the record establishes conclusively that she was not the maker of either of such notes. The action of the trial court in directing a verdict in favor of F.M. Dayton was clearly correct.
The judgment of the trial court is affirmed. — Affirmed.
ALBERT, C.J., and EVANS, KINDIG, and DONEGAN, JJ., concur. *Page 69 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430898/ | Appellant owned a 12-passenger automobile bus used to transport an orchestra. On May 26, 1938, the bus, traveling on the highway from Cedar Rapids to Iowa City, collided with an automobile in which plaintiff, Elizabeth Staggs, was riding. This action at law was brought against said bus owner to recover damages on account of personal injuries suffered by plaintiff.
The slab of the highway was concrete, 18 feet wide. At the time of the collision the bus had been traveling southeast over a straight stretch of the highway and had completed or practically completed a right-hand curve. The highway and surrounding terrain were practically level. The pavement was wet and there is evidence rain was then falling. The accident happened in daytime. It was not disputed that the bus skidded along and across the pavement into the automobile as the two vehicles, traveling in opposite directions, were about to pass. Liability was sought to be avoided principally upon the ground *Page 340
that the failure of the bus to yield one half of the traveled highway to the automobile was excused by the circumstances and conditions. The driver's version of these circumstances was substantially as follows: that the bus was traveling at the rate of about 25 miles per hour along the straight stretch of highway; that a few feet beyond the point where the collision afterwards occurred another automobile was parked upon the pavement in the path of the bus, facing the direction in which the bus was traveling; that this automobile (which apparently could have been seen by the driver of the bus at a greater distance) was first observed by said driver at a distance of about 250 feet; that he mistakenly thought the automobile was standing at the side of the pavement instead of upon it and though continuously watching it did not correctly observe its location until the bus had approached to a point about 100 or 150 feet from said standing car, and was then entering said curve; that he then applied the brakes in an effort to stop; that the bus started to skid and slide and continued to slide forward and sideways; that it slid to the left side of the pavement and there struck the automobile in which plaintiff was riding. When the accident happened, the bus had not yet reached the parked car and was about 35 feet distant. The driver testified he was able to stop the bus at the speed it had been traveling and under the conditions then existing, in 20 feet; also that if he had been traveling more slowly when he applied his brakes, he probably could have brought the bus under control and kept it on the right side of the pavement.
The trial court, perhaps out of an abundance of caution, withdrew from the jury specifications of negligence based upon speed and lack of control and submitted the case solely upon the question of the failure of the bus to yield one half of the traveled highway. Defendant withdrew from her answer the pleaded defense that the parked car was the sole cause of the collision and rested upon a general denial. The trial resulted in a judgment in favor of plaintiff and this appeal by defendant. The errors assigned relate solely to instructions.
[1] I. The jury was specifically instructed to consider only *Page 341
the one ground of negligence and that it could not find a verdict for plaintiff unless it found the bus driver was guilty of negligence in failing to yield one half of the traveled portion of the highway when meeting the car in which plaintiff was riding. Instruction No. 10 stated the bus was not required to travel, at all times, on the right-hand side of the paving but was required, upon meeting another car, to give one half of the traveled way by turning to the right; that failure to do this is only prima facie evidence of negligence, which is not conclusive and may be overcome by other facts and circumstances, and that if the failure to yield had been justified, explained or excused the verdict should be for defendant.
On the question of negligence in failing to yield one half of the traveled portion of the highway the court, in instruction No. 11, explained the statute on speed restrictions, (excepting the assured clear distance rule) the right of the driver to assume that all persons using the highway will obey the law, the general statute on control of vehicle and control when approaching and traversing a curve, and instructed that it was the duty of the bus driver to drive at a prudent rate of speed having regard for the traffic and surface of the highway and any other conditions then existing and to have the bus under control and reduce the speed to a reasonable and proper rate when approaching or entering a curve.
Instruction No. 12 first recites that the evidence shows without dispute that the collision occurred on the east side of the traveled portion of the highway. It then proceeds:
"In determining whether the defendant's driver was negligent as charged, you will take into consideration all of the facts and circumstances and conditions shown in evidence, including the fact of the parked or standing car, the proximity of the curve, the speed of defendant's bus, its size and weight, its proneness to skid, if any, on wet pavement, whether the pavement was slippery from rain, the visibility from the bus, whether the bus was slowed down or under proper control, whether the bus driver kept a proper and reasonable lookout *Page 342
for approaching cars, and whether he could in the exercise of ordinary care have seen the plaintiff's car approaching in time to have turned to the right to avoid the collision, and from these and all other facts and circumstances in evidence determine whether the defendant's driver was negligent in failing to turn to the right and yield one-half of the traveled portion of the highway."
Appellant assails instructions Nos. 11 and 12, urging that they submitted general negligence and various specifications of negligence other than the failure to yield half the traveled way, and thus permitted the jury to inquire into and speculate upon general negligence and various other grounds of negligence.
Before considering these contentions it may be well to point out that instruction No. 13, given at appellant's request, was based upon the theory that the emergency occasioned by the discovery of the parked car might excuse the failure of the bus to yield half the traveled highway. The criticized instructions should be considered in connection with this instruction as well as with the immediately preceding statement in instruction No. 10, that the prima facie evidence of negligence from failure to yield one half the traveled way is not "conclusive, and may be overcome by other facts and circumstances in evidence, and if you find from the evidence in this case that the failure of the driver of defendant's bus, Jack Mitchell, to yield one-half of the traveled way is justified, explained, or excused, then and in that event your verdict should be for the defendant."
Instructions Nos. 11 and 12 did not submit additional grounds of negligence upon which the jury might predicate liability. On the contrary they merely furnished rules to guide the jury in its consideration of the negligence charged in the specification submitted. Jakeway v. Allen, 226 Iowa 13, 282 N.W. 374. They amplified and clarified the provisions of other instructions under which the jury might find that the failure to yield one half the traveled way was justified, explained or *Page 343
excused. Such excuse, if established, would have resulted in a finding that the bus driver was free from the negligence charged, despite the prima facie evidence thereof from his failure to yield half the traveled highway.
Appellant relies upon our holdings in Keller v. Dodds, 224 Iowa 935, 277 N.W. 467; Ryan v. Trenkle, 199 Iowa 636, 200 N.W. 318, and Faatz v. Sullivan, 199 Iowa 875, 200 N.W. 321.
In each of the cited cases the instructions made reference to general or specific laws or rules involving negligence not otherwise included in the instructions, which reference was followed by a statement that the failure to obey the same would constitute negligence. Thus they set up new and additional grounds upon which the jury could base a finding of negligence. As stated in Keller v. Dodds, supra [224 Iowa 935, 946, 277 N.W. 467, 473]:
"* * *. The particularly objectionable feature of the italicized portion is the fact that the trial court completes the same by stating to the jury that a failure upon the part of the defendant to drive his truck as a reasonably careful and prudent person would drive a similar truck under like or similar circumstances would be negligence. * * *."
No such statement appears in the criticized instructions in the case at bar. As above noted they merely explained other instructions for the guidance of the jury. We conclude they were not erroneous in the particulars urged by appellant.
[2] II. Error is predicated upon the refusal to give a requested instruction concerning the parked car and its discovery on the pavement by the bus driver as a circumstance bearing upon the question of his negligence. One proposition therein expressed was that because parking upon the pavement was unlawful the bus driver had the right to assume the parked car was not upon the pavement until he observed or should have observed to the contrary.
However, instruction No. 13, given by the court at appellant's *Page 344
request had reference to the time of the bus driver's actual discovery of the car "standing in the pavement immediately ahead of him," and stated that if he was driving carefully and was suddenly and without warning faced with the emergency occasioned by said discovery and if it arose without his negligence and was not of his own making and he thereafter exercised reasonable care in attempting to avoid it "you would not be justified in finding him guilty of negligence, proximately causing the accident * * *."
This instruction required no action on the part of the driver in the "emergency" connected with the parked car until he discovered it standing in the pavement. Upon that proposition it was at least as favorable to appellant as the refused instruction. Consequently, no prejudice could have resulted from the refusal to give said instruction.
We express no opinion as to whether or not the record here entitled appellant to instruction No. 13, which was given at her request.
The judgment is affirmed. — Affirmed.
RICHARDS, MITCHELL, STIGER, SAGER, BLISS, HALE, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430903/ | This case was originally before this court and a reversing opinion rendered in Tinley v. Chambers Implement Co. et al., 243 N.W. 381. A rehearing was granted and that opinion is hereby withdrawn.
[1] The only question raised in this case is whether or not the deceased was guilty of contributory negligence as a matter of law. *Page 459
The collision occurred after dark November 11, 1930, on highway No. 32, at or near the intersection of said highway with a private road entering thereon from the home of one Koester. Deceased left the Koester home at night and was driving to his own home some distance east on highway No. 32.
Highway No. 32 runs east and west and is 18 feet wide with a 5-foot shoulder on each side. The Koester home is about 233 feet north of highway No. 32 and the private drive therefrom to the highway runs north and south. At the south end of the driveway it spreads out in a fan shape at its junction with No. 32. The private driveway is generally about 15 feet wide, and 28 feet wide where it joins with No. 32.
The evidence shows that an automobile, traveling on any part of the private drive from the Koester home to the highway, is visible to persons on highway No. 32 for a distance of at least 1,000 feet east of the intersection. The headlights on both the car and the truck were lit. There was also a spotlight on the truck. The truck was traveling from 40 to 50 miles an hour. The deceased at the time he was driving his Ford coupé onto the paving was traveling about 5 miles an hour.
Appellants contend that the deceased drove his car onto the paving without stopping, came directly into the path of the oncoming truck, and was struck by the truck on the intersection while on the north side of the pavement. Appellants' contention is supported by the testimony of the driver of the truck and the testimony of a witness who was driving a car a few hundred feet behind the truck.
The deceased did not stop before entering the paving, but the appellee contends that he drove across to the south half of the paving, had turned his car easterly thereon, and was 40 or 50 feet east of the intersection at the time of the collision.
As a result of the collision the decedent's car landed north of the pavement and about 10 feet west of the Koester driveway. The truck stopped about 200 feet west of the driveway on the south side of the pavement. Powell's body was found about 60 feet west of the intersection with blood all around his head. One of the vital questions in the case was the location of the cars at the time of the impact. The witness Koester saw the collision from the window of the southeast bedroom of his home. He testified that he saw the deceased driving his car when he got almost on the highway. *Page 460
He testified "he (Powell) went up the grade in low gear. I judge he was going five to seven miles an hour. I was watching the highway as he drove onto that highway. He drove straight out on the pavement. I noticed the lights of the truck coming from the east. I next saw him on the pavement when he was about fifty feet from the truck. He was driving east on the highway. After I saw the truck coming west I continued to watch the truck come on. As it got within one hundred feet of where they collided he seemed to throw off to the south and kept going off until the collision. John Powell was about forty feet east of the driveway. I could see the lights on his car shining ahead. There was a big flash as though there was an explosion, glass flying all over. Before the collision the lights of that truck were going west and possibly a little south. My brother and I ran down the road with a lantern. We saw an object lying on the south side of the highway about 35 or 40 feet east of the driveway and my brother said `is that a body there' and I said `no that is a part of the car.' As we went by with a lantern it looked like a door of the car. Later we found the object that was lying forty feet east of the highway was the door of John's (decedent) car. I then went back to see if John was in the car. The truck was lying about the middle of the south side of the highway. John's car was just west of the driveway about 10 feet. We found John laying there on the north side of the road about 60 feet from the driveway. He was unconscious, there was blood all around his head. He never regained consciousness. The next morning we went down to the road and inspected the marks on the road. There were marks east of the driveway — abrasions. I found one rather deep mark about four feet long, another one just slightly smaller on the highway south and east of the driveway. The next morning I saw some scratches on the highway. There was still some glass mostly to the south about the middle of the south half of the highway, about 35 feet east of the driveway. There were scratches and marks on the pavement. About directly south of the driveway, possibly a little east, there was a dark black mark about 3 feet from the south side of the highway about four inches wide. It looked like burnt rubber marks. These black marks on the highway were about 40 or 50 feet long and ended about 40 feet west of the driveway and on the north side of the highway. I saw the truck the next morning. On the left hand side the bolts or plates were sheared off all the way along, and paint was off the side of the truck. The front bumper was broken *Page 461
off on the right hand side. It was fastened on the frame of the car with rivets, and they were sheared off, and the wheel was shoved back and injured on that side. On the Powell car the radiator was pushed back over the engine and to the left, and the left part of the spindle or axle was bent back a little and the radius rod was broke loose from the engine, and the back part of the front end was still on but the back part was broken loose. There were no dents on the left side of the Powell car from the running board back. When I first saw the truck, as it came west on highway No. 32 in my judgment it was about 260 feet east from the driveway. At that time my best judgment is that Mr. Powell's front wheels were right on the paving or at the paving, I couldn't tell. At the time the collision occurred, I judge Powell's car was about 35 feet east of the driveway, possibly 40 feet. As it came down the road the truck gave way to its left to the south side of the road and it seemed as though at that time it picked up speed. Mr. Powell's body was found about 115 feet from the place where the collision occurred. At the time the two cars came together Powell's car wasn't still turning. I could see that plainly. Just before the crash I could see the outline of the body of the Ford because of the light that was thrown upon it. The next time I saw the lights of those cars it (Powell's car) was about 35 feet east of the driveway. The lights shining mostly east and possibly a little to the south."
J.H. Koester testified, "I saw blood spots where John's body lay to the end of the scratches. The scratches on the paving began thirty to thirty-five feet east of the driveway. There was glass to the east of that on the south side."
Witness Burmeister said, "When I arrived I observed a door of the Powell car laying in the middle of the south half of the slab, about 35 feet east of the Koester driveway. I stopped because there was so much glass lying there of every kind. The abrasions (on the pavement) started about where the door was and then in a northwesterly direction to where Powell's car was. I saw blood where they picked Powell up on the north side of the highway. There were scratches from where Powell's body lay in a westerly direction a couple hundred feet, probably eight to sixteen feet wide, in places, to where the truck laid. I first observed the lines of blood where the door was on the south side of the highway. They then went northwesterly and moved on to the north side. In driving my car I *Page 462
straddled the door and went over some glass. I made the measurements and it was 35 feet east of the driveway. The door I saw was in the center of the south half of the pavement."
Fred Hanson testified that he drove down the Koester driveway and turned onto the paving and saw something lying in the road. He said, "It seemed it was a piece of a car and I could straddle it and would drive over it. It was the door of the Powell car. I thought it was 35 to 40 feet east of the driveway to the south side. There was some glass all around there, some east of the door. The next day I seen some marks on the pavement east of the highway deep scratches about 35 feet east. I saw glass around these marks and around the door. These marks extended about 50 feet east of the driveway and were 18 to 20 inches wide. They were on the south side. I saw blood stains there. They led west up the pavement about 100 feet and to where there was a big puddle of blood, northwesterly."
The witness Suramitt, a patrolman on this highway, drove to the scene of the accident and said, "I found glass east of the Koester driveway, the bulk of it about 35 feet east of the south half of the pavement. The next morning I found scratches on the pavement running north and west commencing about 35 to 40 feet east of the driveway on the south half and extended northwesterly. I saw blood stains at the point where the bulk of the glass was. They extended in the same direction as the marks did. The blood stains went to where John's body was found, next to the curb."
Witness Owens, a deputy sheriff, testified as to the finding of the handle of the door about 33 feet southeast of the driveway.
[2] Section 5035 of the Code, requiring vehicles coming from private drives to stop before entering a public highway does not apply to this case, because it refers to cases where the view of the driver approaching the highway is obstructed. The undisputed evidence here shows that the view of the deceased as he approached the highway was open and unobstructed for at least 1,000 feet. For this reason the statute does not apply. Carstensen v. Thomsen, 215 Iowa 427, 245 N.W. 734.
Section 5079-b2 gives the traffic on arterial highways the right of way over the traffic on any other highway intersecting therewith. It is therefore claimed that driver of defendant's truck had the right *Page 463
of way on approaching the intersection. A driver of an automobile is not necessarily guilty of contributory negligence in driving onto an intersecting arterial highway from a private drive, in front of one approaching the intersection some distance away, if under the circumstances it is reasonably apparent to him that he can enter the highway in safety. Barnes v. Barnett, 184 Iowa 936,169 N.W. 365, 367; Shuck v. Keefe, 205 Iowa 365, 218 N.W. 31; Roe v. Kurtz, 203 Iowa 906, 210 N.W. 550; Wolfson v. Jewett Lum. Co.,210 Iowa 244, 227 N.W. 608, 230 N.W. 336; Hartman v. Red Ball Trans. Co., 211 Iowa 64, 233 N.W. 23.
In Barnes v. Barnett, supra, we said:
"The right of precedence at a crossing, whether given by law or established by custom, has no proper application, except where the travelers or vehicles on the intersecting streets approach the crossing so nearly at the same time and at such rates of speed that, if both proceed, each without regard to the other, a collision or interference between them is reasonably to be apprehended. In such case, it is the right of the one having the precedence to continue his course, and it is the duty of the other to yield him the right of way. But if a traveler, not having such right of precedence, comes to the crossing, and finds no one approaching it upon the other street within such distance as reasonably to indicate danger of interference or collision, he is under no obligation to stop or to wait, but may proceed to use such crossing as a matter of right."
In that case we said, what may be well said here:
"It may be admitted that, had the jury found the plaintiff chargeable with contributory negligence, and therefore not entitled to recover, the verdict would have ample support in the testimony; but the existence of contributory negligence is peculiarly a jury question, and in our judgment the record does not reveal one of those cases where the evidence is so undisputed and convincing as to make the question one of law."
There is evidence in this case from which the jury could find that defendants' truck was 260 feet east of the crossing at the time the deceased was entering the highway. If from this and other facts and circumstances they could reasonably find that the defendants' truck was of such a distance away that it was reasonably apparent *Page 464
to him that he could make the crossing in safety, then he would not be guilty of contributory negligence.
An important question for determination was the location of the defendants' car at the time of the collision. The defendants contend that the impact took place at the crossing while the decedent was driving over to the south side of the pavement. The plaintiff's contention is that the decedent had already reached the south side of the paving and was driving in an easterly direction thereon at the time of the collision. Mr. Koester, an eyewitness, said the deceased had reached the south side of the highway, had left the intersection, and that his car at the time of the collision was from 40 to 50 feet east of the intersection. This testimony was corroborated by evidence of physical facts showing the location of the car to be east of the intersection at the time of the collision. The undisputed evidence shows the existence of a lot of glass on the south side of the highway about 35 or 40 feet east of the driveway; the finding of the door of decedent's car about 35 feet easterly of the driveway on the south side of the paving, and the finding of the handle of the door about 33 feet southeast of the driveway; also the existence of blood stains about 35 or 40 feet east of the intersection on the south side of the paving extending from that place to the body of John Powell. Deep scratches and marks were seen on the pavement about 35 feet east of the driveway and extended from about 50 feet east of the driveway; that these marks, scratches, glass, blood stains, the door, the handle of the door were all found on the south side of the highway No. 32 about 35 to 40 feet east of the intersection.
Mr. Koester testified that when the decedent's car reached the pavement the truck was 266 feet east of the intersection. This would be an ordinary block away. If the point of collision was 35 or 40 feet east of the intersection, and the Ford car was traveling 5 miles an hour, and the truck 50, it was traveling ten times as fast as the Ford. If the Ford continued at 5 miles an hour to the place of the collision, the truck would have traveled 350 or 400 feet in the same time. But making allowance for an increased speed of the Ford after it entered the highway, this evidence demonstrates the correctness of Koester's estimate that the truck was at least 260 feet east of the intersection at the time the decedent entered the paving.
From the testimony offered it is apparent that the question of the location of the Powell car at the time of the impact must have been for the jury. If they could reasonably find from the *Page 465
evidence that the Powell car was on the south side of the highway and 35 or 40 feet east of the driveway at the time of the impact, and if they could reasonably find, from the evidence, that at the time the decedent entered the intersection the truck was such a distance away that decedent was in the exercise of ordinary care in believing that he could get on to the south side of the highway without danger of a collision, the question of contributory negligence must have been one for the jury. Under the record in this case we can reach no other conclusion than that this case was properly submitted to the jury.
The lower court therefore did not err in overruling defendants' motion for a directed verdict and the judgment is therefore affirmed. — Affirmed.
KINDIG, C.J., and STEVENS, MITCHELL, and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430909/ | Defendant Hofer, age thirty-six, and one Larson were prisoners in the men's reformatory at Anamosa. Each morning they were taken in an automobile by John Hinz, foreman of the prison cheese factory, to work there. When the day's work was done Hinz returned the prisoners to the reformatory. They had planned to escape while Hinz was returning them to prison on June 12th. The plan was that Hofer was to ride in the rear seat of the automobile, would strike Hinz in the head with a hammer, and Larson, in the front seat, would then drive the car. *Page 824
Defendant concealed a hammer on his person when he got in the automobile and a little later at a signal from Larson struck Hinz on the top of the head with the hammer. Larson then struck Hinz in the face with his fist and yelled to defendant to "hit him harder." Hofer then struck Hinz in the head a second and harder blow with both hands upon the hammer handle. Blood came streaming down Hinz' face. The car was stopped and the prisoners moved Hinz into the rear seat, where defendant held him down. Hinz started to fight back and Hofer again hit him in the head at least once or twice with the hammer. However, Hinz managed to open a door to the car and get out while the prisoners drove on. Hinz was picked up by a passing motorist and taken to a hospital, where he died the following evening, without regaining consciousness, from a fractured skull caused by the hammer blows.
About forty-six hours later defendant and Larson were apprehended some fifty miles away and returned to the reformatory. On June 17th a county attorney's information was filed against Hofer charging him with murder in the first degree. On the same day defendant appeared for arraignment, was informed of his right to counsel, and stated he had no counsel and no funds with which to procure one. The court then appointed James E. Remley, Esq., an able and experienced attorney, to represent Hofer. On June 19th, defendant pleaded not guilty. Trial commenced on September 30th. The jury returned a verdict of guilty of first-degree murder and, pursuant to Code section690.5, directed the punishment be death. (All Code references are to the Code of 1946.) Defendant was accordingly sentenced to be hanged.
[1] I. Defendant contends the trial court was without jurisdiction because no order for a bench warrant was made and no warrant issued. We hold the contention without merit.
Upon the filing of an indictment or county attorney's information against a defendant not in custody nor under bail it is the duty of the judge to order a bench warrant to issue for his arrest. Code sections 774.2, 769.12. We assume, without deciding, Hofer was "not in custody," within the above statute, although he was a prisoner in the reformatory. The record does *Page 825
not show any order for, nor issuance of, a bench warrant. Nor was there any order, so far as shown, under Code section 774.10, for the production of defendant for trial. However, defendant was arraigned, entered a plea of not guilty, and was present in person and with counsel throughout the proceedings below. He did not there raise the question presented here.
This contention goes merely to the question of jurisdiction of defendant's person — to the manner of bringing him before the court. Such a contention must be presented to the trial court and cannot be first raised upon appeal. It is waived by pleading not guilty and going to trial. It is unlike questions that go to jurisdiction of the subject matter, which cannot be waived but may be raised at any stage of the proceeding. 22 C.J.S., Criminal Law, sections 161, 162; 14 Am. Jur., Criminal Law, section 214; State v. Melvern, 32 Wash. 7, 72 P. 489, 491; State v. Warner,165 Minn. 79, 205 N.W. 692; Ford v. United States, 273 U.S. 593, 606, 47 S. Ct. 531, 535, 71 L. Ed. 793, 799, 800, and authorities cited; Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044, 1045, 1046. See, also, State v. Ray, 50 Iowa 520; State v. Kinney, 41 Iowa 424.
We pointed out in Hottle v. District Court, 233 Iowa 904, 906, 907, 11 N.W.2d 30, 32, that the statements now relied upon by defendant from State v. Judkins, 200 Iowa 1234, 1236, 206 N.W. 119, 120, are dicta. Further, in the Judkins case the accused had never appeared personally in court, had not been arraigned or entered a plea, nor had he been present throughout a trial. All of these matters, absent in the Judkins case, are shown here.
[2] II. Defendant contends Exhibits 4 and 5, which the State alleges are confessions, were involuntary as a matter of law. The trial court submitted to the jury the question whether either exhibit was involuntary. We think this was proper.
Defendant was apprehended about midafternoon on June 14th by several peace officers. He was dirty, very tired and worn out. About 4:30 p.m., at the direction of the warden of the reformatory, Hofer left the place of his capture in an automobile, accompanied by three employees of the reformatory. About that *Page 826
time the warden suggested to two state investigators or "agents" who were at the scene that they return to the prison and see if Hofer would give them a statement. The agents arrived at the reformatory about the time defendant and his custodians did.
Hofer was permitted to change clothes — those he had been wearing were muddy — and was taken to a room in the reformatory used by the board of parole to interview prisoners. He was not handcuffed nor otherwise shackled. He looked a little stronger than when apprehended. A uniformed guard was in the room and the employee who sat in the car with defendant on the return trip was there part of the time. The two investigators were present and the warden was there soon after the interview, which lasted an hour and a half to two hours, commenced. The state agents questioned defendant and one of them took down on a typewriter what Hofer said. Defendant read over the statement and signed it and it was received in evidence as Exhibit 4.
The two investigators, the warden, and the employee who sat with defendant on his return to the reformatory testified to the circumstances under which Exhibit 4 was given. The writing itself asserts it was made of Hofer's own free will, no threats or promises were made to him by the state agents to whom the statement was given. Hofer had read the statement, it is true, and signed it "knowing it may be used against me in court."
The testimony is that the agents told defendant who they were, that defendant could refuse to make a statement if he saw fit and anything said by him might be used against him in court, Hofer said he was ready and talked freely, no threats or promises were made him. It does not appear defendant was advised of what he now refers to as his "right to counsel," although one agent says "I believe we did, however, I wouldn't want to state that we did."
The employee who sat with Hofer on his return to the reformatory testifies he and his two fellow employees talked to defendant during the fifty-mile trip. To these men Hofer told about the same story that appears in Exhibit 4 but in less detail. Three days after Exhibit 4 was made defendant was *Page 827
again questioned in the same board of parole room by the two state agents. An additional written statement was given by defendant at this time. It contains substantially the same statements as those in Exhibit 4 above referred to which purport to show it was voluntarily given and reiterates that Exhibit 4 is true and correct.
Both agents testify the later statement was made without any threats or promises to defendant; one of them says Hofer was told "he didn't have to make a statement if he didn't want to," and the other testifies defendant was advised of his right to counsel and that the additional statement might be used against him but Hofer did not manifest his desire to have counsel. There is no evidence defendant was tired or worn out on the 17th. This later statement was received in evidence as Exhibit 5.
It is the rule in this state that where, as here, a written statement by the accused purports to be freely given it is prima facie voluntary and the burden rests upon him to show the contrary. State v. Bisanti, 233 Iowa 748, 751, 9 N.W.2d 279, 281, and cases cited; State v. Boston, 233 Iowa 1249, 1253,11 N.W.2d 407, 409. Here no testimony was offered in defendant's behalf and the State's evidence tending to show Exhibits 4 and 5 were voluntary is without contradiction. Defendant was clearly not entitled to have the exhibits excluded on the ground they were involuntary as a matter of law. State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959; State v. Townsend, 191 Iowa 362, 366, 182 N.W. 392; State v. Bennett, 143 Iowa 214, 220, 121 N.W. 1021, and cases cited.
[3] That Exhibits 4 and 5 were given when defendant was a prisoner does not render them inadmissible. State v. Kelso,198 Iowa 1046, 200 N.W. 695, and cases cited; State v. Westcott,130 Iowa 1, 6, 104 N.W. 341; State v. Storms, 113 Iowa 385, 391, 85 N.W. 610, 86 Am. St. Rep. 380; Wilson v. United States,162 U.S. 613, 623, 16 S. Ct. 895, 40 L. Ed. 1090, 1096; 20 Am. Jur., Evidence, section 498; 22 C.J.S., Criminal Law, section 819.
It is claimed defendant was fraudulently induced to make Exhibits 4 and 5 because, it is said, the officers did not tell him *Page 828
Hinz was dead nor that defendant might be prosecuted for murder. It does not clearly appear Hofer knew, at least when Exhibit 4 was made, Hinz had been killed, although there is evidence he told an officer soon after he was apprehended, "It was all my own planning, I did it and I suppose I will have to burn for it."
But even if defendant was not informed and did not know when Exhibits 4 and 5 were made that Hinz had been killed, this would not render them inadmissible. Even the use of artifice, fraud, or deception to obtain a confession does not render it inadmissible if the means employed are not calculated to procure an untrue statement. 22 C.J.S., Criminal Law, section 827; 20 Am. Jur., Evidence, section 519; State v. Storms, 113 Iowa 385, 391, 85 N.W. 610, 86 Am. St. Rep. 380; State v. Westcott, 130 Iowa 1, 6, 7, 104 N.W. 341.
That defendant was not represented by counsel when Exhibits 4 and 5 were made nor told of any right he may have had to consult counsel does not affect the admissibility of the exhibits. State v. Heinz, 223 Iowa 1241, 1253, 275 N.W. 10, 114 A.L.R. 959, 970; State v. Neubauer, 145 Iowa 337, 340, 124 N.W. 312; Wilson v. United States, 162 U.S. 613, 624, 16 S. Ct. 895, 40 L. Ed. 1090, 1096, 1097; 20 Am. Jur., Evidence, section 503; 22 C.J.S., Criminal Law, section 822; annotation 23 A.L.R. 1382, 1387.
[4] That Exhibit 4 was taken when defendant was fatigued would not render it inadmissible. Further, defendant's tired condition no longer existed when Exhibit 5 was made three days later and defendant again declared Exhibit 4 was freely and truthfully made. Even where a confession is involuntarily obtained a later confession at a time when the improper influences are not in operation is admissible. 20 Am. Jur., Evidence, section 487; 22 C.J.S., Criminal Law, section 817d(6); State v. Foster, 136 Iowa 527, 530, 114 N.W. 36; State v. Westcott, 130 Iowa 1, 6, 104 N.W. 341.
[5] III. When the State started to question Warden Davis about Exhibit 4 the court granted defendant's request that testimony be taken in the jury's absence on the question whether *Page 829
it was voluntary. Davis was then examined and cross-examined on this issue. The court then ruled there was sufficient prima facie showing the exhibit was voluntarily made and denied defendant's request to introduce further evidence on the question in the jury's absence. We think this was not prejudicial error.
The authorities are not agreed as to the duty of the court to hear evidence offered by accused on a preliminary inquiry into the voluntary character of a confession. 20 Am. Jur., Evidence, section 540; annotation 102 A.L.R. 605, 616. This lack of uniformity seems in part due to the fact that in some jurisdictions the voluntary nature of a confession is a question for the court and in others is for the jury. See 20 Am. Jur., Evidence, section 533; annotation 85 A.L.R. 870.
We are committed to the rule that where the evidence is in conflict, or the court is in doubt on the question, it should be left to the jury under proper instructions. State v. Johnson,210 Iowa 167, 171, 230 N.W. 513, and cases cited; State v. Plude,230 Iowa 1, 6, 7, 296 N.W. 732, 735; annotation 85 A.L.R. 870, 887. Of course, if it clearly appears a confession was involuntarily obtained it is the court's duty to exclude it. Id.
Under the procedure which prevails in this state there seems to be no valid reason why the court is bound to hear testimony for defendant on the preliminary examination after it is apparent the question of the voluntary character of a confession is one for the jury and not the court. The ruling below finds support in 20 Am. Jur., Evidence, section 540; Commonwealth v. Weiss, 284 Pa. 105,130 A. 403; Commonwealth v. Aston, 227 Pa. 106, 75 A. 1019, 1020; State v. Wells, 35 Utah 400, 100 P. 681, 683, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631; Wilburn v. State, 141 Ga. 510, 81 S.E. 444; Irby v. State, 95 Ga. 467, 20 S.E. 218.
The court should permit cross-examination of the witnesses called by the State on the preliminary inquiry. 20 Am. Jur., Evidence, section 534. This is substantially the holding in State v. Fidment, 35 Iowa 541. Here such right was accorded defendant. *Page 830
It is generally held the trial court has considerable discretion as to the extent of such a preliminary inquiry as here involved. 20 Am. Jur., Evidence, section 534; 22 C.J.S., Criminal Law, section 836; annotation 102 A.L.R. 605, 622. We think no such abuse of discretion appears here as to justify a reversal.
But if the court's ruling could be called error, it was without prejudice. It is not shown what evidence defendant proposed to offer. Of course, he was entitled to produce before the jury any competent testimony tending to show Exhibits 4 or 5 were involuntary. As stated, none was offered. No facts were proved or offered to be proved, and there is no indication a showing could have been made which would have rendered the exhibits inadmissible. Under similar circumstances like rulings have been held not to be prejudicial error. State v. Thomas, 250 Mo. 189, 157 S.W. 330; People v. Miller, 135 Cal. 69, 67 P. 12; People v. Northcott, 209 Cal. 639, 289 P. 634, 70 A.L.R. 806, 814, 815; 20 Am. Jur., Evidence, section 534; annotation 102 A.L.R. 605, 616, n20.
[6] IV. Exhibit 4 states "I have served time before this and that was in Ind." It also states that during the time (forty-six hours) defendant and Larson were at large they broke into a railroad ticket office and stole something over $2 and a little later stole an automobile which they drove until they "wrecked it or blew out some tires." On defendant's motion these statements were stricken and withdrawn from the jury's consideration. The jury was also admonished when the ruling was made and again in the court's instructions, both specifically and generally, not to consider these statements. The transcript shows the county attorney, in reading Exhibit 4 to the jury, omitted the stricken portions. However, defendant complains here that the entire exhibit was taken to the jury room when the jury retired.
The record does not show defendant objected to the taking of Exhibit 4 to the jury room nor requested the stricken portions of the exhibit be marked or obliterated. At least in the absence of such objection or request, sending the exhibit to the jury room under the directions given was not error. The stricken *Page 831
portions are inseparable parts of the confession, if it is such, of the crime charged. See 20 Am. Jur., Evidence, section 489; 22 C.J.S., Criminal Law, section 820; annotation 2 A.L.R. 1017, 1029. We are not justified in assuming the jury disregarded the court's admonitions not to consider the parts stricken.
In reaching this conclusion we assume, without deciding, the court properly excluded the parts of Exhibit 4 relating to the breaking and entering and the theft of an automobile during the time defendant and his confederate were attempting to escape. It may be the excluded portions involved circumstances so immediately connected with the crime charged they, too, were admissible, even though they incidentally showed the commission of other crimes. See State v. Grimm, 221 Iowa 652, 266 N.W. 19, and cases cited; State v. Mickle, 199 Iowa 704, 708, 202 N.W. 549.
In this connection we may observe, without committing ourselves thereto, there is respectable authority that in a trial under a statute similar to Code section 690.2, which leaves to the jury the question whether punishment shall be death or life imprisonment, evidence of other crimes contained in a written confession is admissible as an aid to the jury in fixing the punishment. Commonwealth v. Parker, 294 Pa. 144, 143 A. 904, 906, 907; Commonwealth v. Mellor, 294 Pa. 339, 144 A. 534, 536.
V. Defendant complains that the court in instructing the jury and throughout the trial treated Exhibits 4 and 5 as confessions when, it is said, they are not such. The instructions refer to the exhibits as "alleged confessions" and deal with the requirements that a confession be voluntary and be corroborated by other evidence. We do not find the court or the prosecuting attorney referred to the exhibits as confessions throughout the trial, although this was done by defendant's counsel.
[7] A confession is an admission or acknowledgment of guilt of the very offense charged and, as some authorities hold, may consist of an admission of the essential facts constituting such crime. But admissions which do not amount to a confession are receivable in evidence. State v. Cook, 188 Iowa 655, 660, 661, 176 N.W. 674; State v. Norton, 227 Iowa 13, 15, *Page 832
286 N.W. 476; State v. Gallagher, 236 Iowa 123, 127, 16 N.W.2d 604, 606. We shall not determine whether Exhibits 4 and 5 are confessions or merely admissions.
We might ignore this contention because it was not raised below. Defendant excepted to the instructions on confessions but not on the ground it was error to refer to Exhibits 4 and 5 as confessions. See State v. Woodmansee, 212 Iowa 596, 621, 233 N.W. 725, and cases cited; State v. Dunne, 234 Iowa 1185, 1187, 15 N.W.2d 296, 298, and authorities cited; State v. Mauch, 236 Iowa 217, 226, 17 N.W.2d 536, 541. However, we are disposed to consider the question.
[8] The instructions do not define a confession and there is no indication the jury knew the legal definition of the term is an admission of guilt of the very offense charged. It was to defendant's advantage to instruct that Exhibits 4 or 5 could not be considered if involuntary and that a confession will not warrant a conviction unless accompanied by other proof the offense was committed. Defendant was therefore not prejudiced by the use of the term confession rather than admission in the instructions. State v. Davis, 212 Iowa 131, 134, 235 N.W. 759.
[9] VI. Defendant complains of instruction 13, which states in substance: A confession cannot be considered unless it was made voluntarily and was not procured by undue influence in the way of either a promise of advantage or a threat of harm; defendant claims Exhibits 4 and 5 were not voluntarily made; if the jury finds either of these exhibits was procured by the promise of advantage or threat of any harm; then it would not be voluntary and should be given no consideration, but if it finds either exhibit was voluntarily made by defendant without promise of advantage or threat of harm it may be considered.
It is argued the instruction says Exhibits 4 and 5 were voluntary if made without promise of advantage or threat of harm and eliminates the fraud defendant contends was used in procuring the exhibits, the fact he was a prisoner, and also defendant's physical and mental condition when Exhibit 4 was made. We have held in Division II the law on these questions is not as defendant contends. *Page 833
Instruction 13 appears to be patterned after an instruction approved in State v. Bennett, 143 Iowa 214, 218-220, 121 N.W. 1021. See, also, State v. Thomas, 193 Iowa 1004, 1011, 188 N.W. 689, and cases cited. While the instruction is perhaps not as clear as it might be, we think it is not vulnerable to defendant's attack upon it. The instruction states and the jury could scarcely have failed to understand the exhibits were to be considered only if made voluntarily. At least, in the absence of request for a more specific instruction, No. 13 does not constitute reversible error. On the duty to request more explicit instructions, see State v. Griffin, 218 Iowa 1301, 1312, 254 N.W. 841, and cases cited.
We may observe that instruction 13, to defendant's advantage, does not say that a written statement by a defendant which purports to be freely given is prima facie voluntary and the burden to show the contrary rests upon him. See State v. Boston,233 Iowa 1249, 1253, 11 N.W.2d 407, 409, and cases cited.
[10] VII. Complaint is made of instruction 7, which states in substance: Malice aforethought is a fixed purpose or design to dosome physical harm to another existing prior to the actcomplained of; it need not be shown to have existed for any length of time before, but requires only such deliberation as makes a person appreciate and understand at the time the act is committed its nature and probable consequences as distinguished from an act done in the heat of passion; it is sufficient if such purpose was formed before and continued to exist at the time of the injury; malice includes not only hatred and ill will but also any other unlawful or unjustifiable motive which inspires one to injure another and it may be inferred from the willful doing of an unlawful act, without just provocation or excuse, with intent to injure the person of another; it may mean simply a vicious and wanton disregard of another's rights; malice may be express or implied; express malice indicates a wicked mind; malice may beimplied from the unlawful use of a deadly weapon in a mannercalculated to take the life of another. No objection is made to the portions we have italicized. We find no error in the remainder of the instruction. *Page 834
As to the time element in malice aforethought, it is sufficient if malice existed prior to the act — the length of time it existed is not material. State v. Decklotts, 19 Iowa 447, 449; 40 C.J.S., Homicide, section 15; 41 C.J.S., Homicide, section 357c; 26 Words and Phrases, Perm. Ed., 200, 201. In instructions on this subject frequently the word "particular" precedes the expression "length of time" in the clause which immediately follows the first italicized portion, but its omission is not error. State v. Dong Sing, 35 Idaho 616, 208 P. 860, 862; 1 McClain on Criminal Law, section 329.
That malice is correctly defined and explained in the instruction, see State v. Emery, 236 Iowa 60, 64, 65,17 N.W.2d 854, and authorities cited; State v. Woodmansee, 212 Iowa 596, 619, 233 N.W. 725, and cases cited; State v. Troy, 206 Iowa 859, 865, 220 N.W. 95; 40 C.J.S., Homicide, section 14; 26 Am. Jur., Homicide, sections 40, 41; 26 Words and Phrases, Perm. Ed., 199, 200.
[11] VIII. Instruction 8 defines willful, deliberate, and premeditated. Defendant challenges especially the last paragraph of the instruction, which states that for a killing done with malice aforethought to be willful, deliberate, and premeditated does not mean the killing must have been conceived or intended for any particular length of time before the act is done; thewill or purpose to do it, the deliberation and premeditation, andthe killing may follow each other as rapidly as successiveimpulses of thought of the human mind. We have frequently approved the first of these two clauses. State v. Powell,237 Iowa 1227, 1237, 1238, 24 N.W.2d 769, 775, 776, and cases cited; State v. Heinz, 223 Iowa 1241, 1259, 275 N.W. 10, 114 A.L.R. 959; State v. Matheson, 220 Iowa 132, 137, 138, 261 N.W. 787; State v. Griffin, 218 Iowa 1301, 1307, 1308, 254 N.W. 841.
The portion of instruction 8 we have italicized must, of course, be considered in connection with the rest of the instruction (the first three paragraphs of No. 8 are summarized in Division IX hereof) and also with instruction 10 on the same subject (to which defendant also objects). No. 10 is obviously *Page 835
patterned after an instruction approved in State v. McPherson,114 Iowa 492, 496-498, 87 N.W. 421. When so considered, the italicized portion of instruction 8 does not constitute reversible error.
We have said several times it is sufficient if there was deliberation and premeditation immediately before the fatal injury was inflicted though it may have existed but for a moment or an instant. State v. Matheson, supra; State v. Fuller,125 Iowa 212, 213, 100 N.W. 1114; State v. McPherson, supra, and cases cited. See, also, 26 Am. Jur., Homicide, section 42. And there is ample authority for the inclusion of the italicized portion of No. 8 in an instruction on this subject. People v. Suesser, 142 Cal. 354, 75 P. 1093, 1097; Wickham v. People,41 Colo. 345, 93 P. 478, 481; State v. Dong Sing, 35 Idaho 616, 208 P. 860, 861, 862; Koerner v. State, 98 Ind. 7, 8, 9; State v. Prolow, 98 Minn. 459, 108 N.W. 873; State v. McDaniel, 94 Mo. 301, 7 S.W. 634. See, also, Perugi v. State, 104 Wis. 230, 80 N.W. 593, 595-598, 76 Am. St. Rep. 865; 27 Words and Phrases, Perm. Ed., 845-847.
[12] IX. Defendant requested instructions to the effect a specific intent to kill is indispensable to murder in the first degree. These were refused as having been given in substance. Defendant is not entitled to a review of this ruling because only a general exception, without specifying any grounds, was taken to such refusal. State v. Boston, 233 Iowa 1249, 1254,11 N.W.2d 407, 410, and cases cited. However, in view of its importance, we prefer to consider the question.
We have said a specific intent to kill is indispensable to first-degree murder. State v. Johnson, 211 Iowa 874, 879, 234 N.W. 263, and cases cited. And the essential elements of the crime have sometimes been stated as malice aforethought, deliberation, premeditation, and specific intent to kill. State v. Powell, 237 Iowa 1227, 1237, 24 N.W.2d 769, 775; State v. Wilson, 234 Iowa 60, 91, 11 N.W.2d 737, 752. While these statements are correct, Code section 690.1 defines murder as the killing of a human being with malice aforethought, express or implied, and section 690.2 provides that murder which is *Page 836
willful, deliberate, and premeditated is murder in the first degree. The court's instructions define both first and second degree murder in the language of the statutes and explain the meaning of the statutory terms.
[13] "Willful" as used in section 690.2 means intentional and not accidental. Indeed it has that meaning both according to the dictionaries and in the law of homicide. State v. Windahl,95 Iowa 470, 473, 64 N.W. 420; State v. Townsend, 66 Iowa 741, 742, 24 N.W. 535; 40 C.J.S., Homicide, section 33; 45 Words and Phrases, Perm. Ed., 198, 199. The court instructed accordingly.
Instruction 8 states that "willful" means the act was the result of the conscious will of the perpetrator, was of purpose, intentional and not accidental; "deliberate" means the act was the result of a purpose formed after weighing the considerations for and against the doing of the act; "premeditated" means the act was thought of beforehand and done in pursuance of a prior intention or plan. Another instruction refers to "willful intent, deliberation and premeditation," to "fixed design or determination to maliciously kill distinctly framed in the mind of the slayer," and to "willful, deliberate and premeditated design or purpose with malice aforethought to take the life of said deceased." Thus the jury was plainly told the killing must be intentional to constitute first-degree murder. This sufficiently covered the thought of defendant's requested instructions.
In enumerating, in State v. Powell and State v. Wilson, supra, the essential elements of first-degree murder to include "a specific intent to kill," such expression is used as substantially the equivalent of "willful." It is unnecessary to instruct that the intent to kill must be "specific" in order to constitute first-degree murder. State v. Berlovich, 220 Iowa 1288, 1291, 263 N.W. 853. See, also, as bearing on this claim of error, State v. Gray, 116 Iowa 231, 236, 89 N.W. 987; State v. Perigo, 70 Iowa 657, 659, 28 N.W. 452; State v. Shelton, 64 Iowa 333, 337, 20 N.W. 459.
[14] X. On cross-examination defendant asked witness Harbit, who sat with Hofer on the return trip to the reformatory, *Page 837
if at any time during the conversation he had with Hofer, he expressed any ill will toward deceased. The State's objection to this question was sustained. It should have been overruled. Perhaps the objection was sustained on the theory ill will toward deceased was not a necessary element of the crime charged. Nevertheless, the jury was entitled to this information, if for no other reason, as an aid in fixing the penalty. However, the ruling was without substantial prejudice since about the same answer defendant sought to elicit from Harbit appears without dispute in Exhibit 4 put in evidence by the State. That exhibit quotes defendant as having told the officers who talked with him:
"Mr. Hinz * * * was good to me while I was working with him and it was not because I did not like him that I hit him with the hammer."
See State v. Sedig, 235 Iowa 609, 616, 16 N.W.2d 247, 251, and cases cited.
[15] XI. Finally, defendant contends he was denied a fair trial principally because of the alleged errors heretofore considered and the claim the instructions as a whole were unfair. The record does not support the contention. We find no reversible error nor unfairness in the instructions. The only requested instructions were those on specific intent to kill considered in Division IX hereof. If defendant desired more explicit instructions he should have requested them. State v. Schenk, 236 Iowa 178, 194, 195,18 N.W.2d 169, 177, and cases cited; State v. Hessenius, 165 Iowa, 415, 433, 146 N.W. 58, L.R.A. 1915A, 1078.
Different parts of the instructions were advantageous to defendant. We have referred in Division VI to the failure to instruct that a written statement by an accused which purports to be freely given is prima facie voluntary and the burden rests upon him to show the contrary. We may also observe the instructions, properly but unnecessarily, state the information is but the charge made against defendant and is no evidence of guilt and that the fact defendant refrained from testifying *Page 838
should not be permitted to weigh in the slightest degree against him nor should any presumption of guilt be indulged in because thereof.
That defendant was found guilty and the death sentence imposed does not indicate there was not a fair trial. State v. Brewer,218 Iowa 1287, 1299, 254 N.W. 834. We should not interfere unless there is some legal reason for so doing. State v. Griffin,218 Iowa 1301, 1312, 254 N.W. 841; State v. Olander, 193 Iowa 1379, 186 N.W. 53, 29 A.L.R. 306; State v. Pavey, 193 Iowa 985, 992, 188 N.W. 593.
Some other contentions are made. We have considered them and find no error.
The judgment is — Affirmed.
OLIVER, C.J., and BLISS, HALE, SMITH, MANTZ, MULRONEY, and HAYS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430911/ | I. This is an action to recover the value of certain liberty bonds which appellee alleged were deposited with the Fairfield National Bank, at Fairfield, Iowa, for safe-keeping, and which the bank is alleged to have converted to its own use. After the action was commenced, and before the trial, a receiver was appointed for the bank. The answer to the petition was filed by the receiver. The deposit by appellee of liberty bonds of the aggregate face value of $750 in the Fairfield National Bank on January 13, 1920, for safe-keeping is admitted. The bonds were placed in an envelope by the cashier, and put in the compartment of the safe in which the funds of the bank were kept. Appellant, for answer to the petition, alleged that, if any bonds were deposited in the bank by appellee for safe-keeping, *Page 898
same were returned to him, and denied the allegations in the petition charging the conversion of the bonds. By way of an amendment to the answer, appellant alleged that the deposit of the bonds in the bank for safe-keeping was gratuitous, and that, if the said bonds were appropriated or converted by anyone while they were in the possession of the bank, it was by an employee or employees thereof, without any fault or negligence upon the part of the bank or its officers.
A motion to strike the amendment to the answer was sustained. This ruling is assigned as error. All of the employees, directors, and officers of the bank were called as witnesses, and denied that they had any knowledge whatever of the misappropriation of the bonds by the bank or of the conversion thereof by it or any of its employees. Appellant also sought to show by the officers of the bank that they had never had occasion or cause to suspect or question the integrity of any of the bank's employees. This testimony was, upon objection of counsel for appellee, excluded.
The amendment to the answer apparently proceeded on the theory that it was a good defense for appellant to show that the bonds were not lost by the negligence of the officers or employees of the bank. In view of the theory upon which appellant tried the case, — that is, that the bonds were in fact returned to appellee, — we do not deem it necessary to pass upon the question as to whether or not freedom from negligence might ever be available to a gratuitous bailee as a defense to an action charging conversion. If it were conceded that the ruling of the court on the motion to strike the amendment to the petition was erroneous, this court would, nevertheless, be compelled to hold that the ruling was without prejudice.
No authorities are cited on the point except Kubli v. FirstNat. Bank, 199 Iowa 194. The cause of action pleaded in that case was based solely upon negligence, and nothing said therein is in point here. The record will be more fully stated in another subdivision of this opinion. The evidence offered as to the character of the bank's employees tended only to establish the bank's freedom from negligence in the selection of its employees, and was, therefore, not relevant to any issue involved. Furthermore, the ruling of the court excluding the evidence was without prejudice to appellant. *Page 899
II. At the conclusion of all of the evidence, appellant moved the court for a directed verdict, upon the ground that the evidence was insufficient to sustain a verdict for appellee. The specific points of the motion were that the 1. BAILMENT: evidence wholly failed to show that any demand conversion: was made by appellee on the bank for the bonds, evidence. prior to the commencement of this action; that the bank conclusively established its freedom from negligence in caring for the bonds; that no evidence of the value thereof was introduced by appellee; and that there is a total absence of evidence to establish the charge of conversion.
We will dispose of the several grounds of the motion in the order stated. Conversion is any distinct act of dominion or control wrongfully exerted over the chattels of another, in denial of his right thereto. Brown v. Dubuque Altar Mfg. Co.,163 Iowa 343; Lee v. Coon Rapids Nat. Bank, 166 Iowa 242; PeninsularBank v. Citizens Nat. Bank, 186 Iowa 418.
The receipt of the bonds by the bank is admitted, and the evidence disclosed that they were at all times, while in the possession of the bank, kept in the safe to which the employees of the bank had access.
It is admitted that, on or about April 3, 1920, appellee requested the cashier to give him the bonds. The cashier testified that he went to the safe and took therefrom the envelope containing the bonds, and that he believed, and was quite certain, that he then delivered them to appellee. An employee of the bank who was present corroborated the testimony of the cashier, except as to the delivery of the instruments to appellee. Both the cashier and the employee testified that appellee was asked for the receipt which was given him for the bonds when deposited, and that he stated he did not have it with him, and that the cashier then said, in substance, "You may, or will, have to mail or send them to the bank." Appellee categorically denied that the bonds were, on the occasion mentioned, returned to him. The employee of the bank above referred to also testified that she did not remember having seen the bonds in the safe subsequent to the above transaction. There was evidence of a somewhat indifferent character of a further demand for the bonds. No other transaction is referred to by any of the officers connected with the bank in which it is claimed they might have *Page 900
been returned to appellee. Except as stated, the bank was unable to account for the disappearance of the bonds and their failure to return the same upon demand. We think the evidence on this issue sufficient to take the question to the jury.
It is true that no direct evidence of the actual conversion of the bonds by the bank or anyone in its employ was introduced by appellee. This was not necessary. The bank was at least an insurer of its own conduct, and was bound to return the bonds to the appellee. If they had been stolen from the bank, without negligence upon its part, which is not claimed, the bank might not be liable therefor. Kubli v. First Nat. Bank, supra.
The rule as to the measure of damages is well established in this state. The court instructed the jury to return a verdict for $750, the face of the bonds, with interest added, if a verdict was found for plaintiff. The rule established 2. EVIDENCE: in this state is that, in the absence of other pre- evidence, the face value of negotiable sumptions: instruments and other similar choses in action value of is prima-facie evidence of the value thereof. government Callanan v. Brown Co., 31 Iowa 333; Sickles v.
bonds. Dallas Center Bank, 81 Iowa, 408; Dean v.Nichols Shepard Co., 95 Iowa 89; Pelley v. Walker, 79 Iowa 142;Freeman v. Strobehn, 122 Iowa 157; Hubbard v. State Life Ins.Co., 129 Iowa 13.
It is contended by appellant that this rule has no application to government or other bonds which are bought and sold upon the market, in which case it is the market value; and our attention is called to Griffith v. Burden, 35 Iowa 138, to sustain this contention. Unless carefully analyzed in the light of the issues there presented, the cited case apparently lends support to appellant's contention. The issue really before the court in theGriffith case was whether the face value or the market value of certain municipal bonds was the true measure of the plaintiff's recovery, in the absence of proof of certain specific facts. The face value of the bonds there involved was $2,000, but the jury returned a verdict in favor of plaintiff for $535. Evidence must, therefore, have been admitted of the actual or market value of the bonds. The court in that case instructed the jury that such was the measure of damages. The plaintiff, however, requested the court to instruct the jury to return a verdict in his favor for the face value of the bonds, with interest, unless it *Page 901
was shown by the testimony either that the state of Minnesota, which had issued the bonds, was insolvent at the time of the conversion, that the bond was illegally issued, or that it had been paid; and that the burden was on the plaintiff to so show. The court held that the true measure of damages was the market value of the bonds, but did not have the exact point now under discussion before it. Such was the interpretation placed upon theGriffith case by this court in Independent Sch. Dist. v. FirstNat. Bank, 196 Iowa 1171.
The point decided in City of Memphis v. Brown, 87 U.S. 289, in which Griffith v. Burden, supra, is cited, is not applicable to either the facts or the issues in the case before us. The following cases from other jurisdictions are in point, and support the conclusion we have reached herein: Meixell v.Kirkpatrick, 29 Kan. 679; Meixell v. Kirkpatrick, 33 Kan. 282 (6 P. 246); First Nat. Bank v. Dickson, 5 Dakota 286 (40 N.W. 351); Walley v. Deseret Nat. Bank, 14 Utah 305 (47 P. 147);Hayes v. Massachusetts Mut. Life Ins. Co., 125 Ill. 626
(18 N.E. 322).
The peremptory instruction was proper. We conclude on this point that the court properly instructed the jury, in the absence of any evidence to the contrary, that the face value of the bonds was prima-facie evidence of their value.
III. Several requests were made by appellant for instructions. No proper exception was preserved to the refusal of the court to give the requested instructions, and an examination of them satisfies us that the substance thereof, so far as they correctly stated the law, was embodied in the court's charge.
Certain paragraphs of the court's charge are complained of, as is the charge as a whole. The criticism of the instructions is based almost wholly upon appellant's theory of the proof introduced, and that necessary to a recovery. No doubt, the instructions might easily have been amplified to some extent, but we find no substantial error in any of them, either of commission or omission, or of lack of clearness, that could in any way have prejudiced appellant.
No error in the record being found, the judgment of the court below is affirmed. — Affirmed.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur. *Page 902 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430914/ | The instant action involves a claim in probate against the estate of Joseph W. Kiefer, deceased. It is alleged that the amount claimed is due the plaintiff by reason of a sale by decedent of a Stephens automobile owned by plaintiff. The defendant-executor answered (1) by general denial, and (2) by plea of settlement. Plaintiff replied by a general denial. Upon the conclusion of all the testimony, two motions were made by plaintiff: First, to take from the jury the issue of payment or settlement, on the ground that the evidence was wholly insufficient to sustain the plea; second, to direct a verdict in favor of the plaintiff in the sum of $1,650, with interest. Both of these motions were sustained.
The record facts clearly sustain the rulings of the trial court. The evidence is without conflict, and the witnesses of plaintiff stand unimpeached. The evidence shows that, on or about the 12th day of December, 1919, the decedent, Joseph W. Kiefer, sold to the plaintiff three Stephens automobiles, Model 84. Two of these cars were blue, and one was red. At that time, the cars were in storage in Iowa City. At the time of the sale, an arrangement was made between the parties that, if Kiefer had the opportunity to sell one of these cars, he was privileged to do so, and in such an event he was to pay the plaintiff the same price as had been paid Kiefer by plaintiff for the car. The purchase price of the three cars was in the sum of $5,060, and payment was made by a check drawn on plaintiff's bank for that amount. It is also shown that at that time Kiefer owed a note to the Commercial Savings Bank of Iowa City, and the proceeds of the check were used to pay said obligation. It is further shown that the red car which had been sold by decedent to plaintiff was subsequently sold by the decedent to one Cummings, who took possession thereof, and who registered said car in his name in Washington County, Iowa. The foregoing constitutes a brief statement of the material facts.
There is no competent evidence to sustain the defendant's plea 1. EXECUTORS of payment. The onus in this particular was upon AND the defendant, since by statute the burden of ADMINIS- proof that a claim is unpaid shall not be placed TRATORS: upon the party filing a claim against the claims: estate. Section 11962, Code of 1924. burden to prove payment.
We now turn for a moment to plaintiff's second motion. A *Page 492
verdict should be directed: 1. Where but one reasonable conclusion can be drawn from the proof adduced. 2. TRIAL: 2. Where the questions of fact are clearly direction established by unconflicting evidence. 3. Where of verdict: there is no substantial evidence to overcome a when prima-facie case. 4. Where by giving the necessarily opposite party the benefit of the most favorable granted on view of the evidence the verdict against him is motion. demanded. 38 Cyc. 1565 et seq. See Tucker v.Tucker, 138 Iowa 344; Cherry v. Des Moines Leader, 114 Iowa 298;Johnson v. Buffalo Center St. Bank, 134 Iowa 731; First Nat. Bankv. Brown, 197 Iowa 1376.
It may be pointed out that appellant claims in argument that there is no competent identification of the "red car" purchased by Cummings, as one of the cars sold by the decedent to the claimant. There is no merit in this contention. Paul Kern, brother of the claimant, A.W. Kern, was called as a witness by plaintiff, for the purpose of identifying the three cars in question. The following questions and answers are in the record:
"Q. Do you know the numbers of these cars, — the two blue cars and a red car, Models 84 sport? A. Yes. Q. Did you make a memorandum of them at the time? A. Yes, sir. Q. You may state whether or not you later checked that memorandum with the cars themselves at the warehouse at Iowa City. (Defendants object, as irrelevant, immaterial, and calling for a transaction of one deceased. Overruled, and exception.) A. I did."
The witness then identified the cars by type, factory, and engine numbers, and further testified that Cummings was driving the red car, which was the same car that he checked at the storage warehouse.
It will be observed that no objection was made to the first two questions, and it is quite evident that the third question does not call for a personal communication or transaction with the deceased, within the purview of Section 11257, Code of 1924. It must be concluded from the evidence, which is without conflict, that the red car sold to Cummings was the identical car sold by the decedent, Kiefer, to the plaintiff.
Without further comment on the evidence, we hold that the *Page 493
rulings of the trial court sustaining the motions of the plaintiff were correct. The judgment entered is — Affirmed.
EVANS, C.J., and ALBERT, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430915/ | Appellant, Emma J. Leonard, brought this action against the City of Muscatine on account of injuries from a fall upon a sidewalk. Trial to a jury resulted in verdict and judgment in favor of defendant. Hence this appeal.
Appellant's petition recited that she stepped upon a portion of sidewalk which was raised and out of alignment with the rest of said sidewalk, and which was covered with snow and ice and which caused her to slip and fall, and that each of said conditions had existed for such time that the city should have discovered and remedied the same. She charged the city was negligent: (1) in failing to repair said sidewalk when it knew or should have known of the defect, and (2) in failing to remove the snow and ice after it knew or should have known said snow and ice had accumulated on said sidewalk.
The sidewalk consisted of sandstone slabs. At the place of the accident the roots of a tree had lifted the outside edge *Page 1383
of the walk so that it sloped toward its center about 1 to 2 1/2 inches per foot. At the time and place in question the sidewalk was covered with smooth ice and upon the center was a pool of water about 1 1/2 inches deep beneath which there was ice.
To avoid this water appellant walked along the sidewalk near its outer edge. As she stepped alongside the pool she slipped on the smooth ice which covered the sidewalk and fell upon it. It was daytime. She did not see the ice upon which she stepped until after she fell. The record does not show what caused her to fall but in the briefs her counsel say she slipped on the inclined portion of the walk which was covered with a thin coat of ice.
The errors assigned have to do with an instruction which required plaintiff, not only to show that the sidewalk was then "in a dangerous condition, but that such dangerous condition, to wit: the rise and absence of alignment in the said sidewalk, together with a covering thereon of ice or snow, was known to the city or had existed or continued for such a length of time as to enable the city officials to discover the defects and remove them by the exercise of reasonable and ordinary care and diligence."
[1] I. Appellant contends the instructions should have permitted a recovery upon either negligence in failing to remove the ice or negligence in failing to correct the slant in the sidewalk. There is no merit in this position. The record shows the ice was unaffected by artificial causes, that it was smooth and slippery and in the same condition as when nature formed it upon the sidewalk. Manifestly, this condition in and of itself would not serve as a basis for actionable negligence. Citation of authorities upon this proposition is unnecessary. Nor was it claimed the fall was caused by any roughness or unevenness in the surface of the sidewalk itself. Here the complaint referred solely to the slope and, in the words of appellant's brief: "Appellant has never contended that the slant of the walk without the ice would necessarily have caused the injury."
Under the evidence and also under appellant's trial theory no recovery could have been allowed on either ground of alleged negligence without the concurrence of the other. Consequently, the court could not properly have submitted these propositions to the jury as independent grounds of negligence. *Page 1384
[2] II. Particular complaint is directed to the portion of the instruction which required, as a prerequisite to recovery, a finding of knowledge or constructive notice of the icy condition of the walk on the part of the city. Appellant's theory is that the city should have foreseen that snow and ice would accumulate upon this sidewalk and would immediately become highly dangerous. Appellant states that two things combined to cause the injury, the slope which was culpable and the ice which might not have been culpable. Appellee contends the slope was not a "culpable" defect. Both sides rely upon Turner v. City of Winterset,210 Iowa 458, 229 N.W. 229, and cases therein cited. In view of the conclusion reached upon other grounds we will not decide or consider whether the slope was a "culpable" defect.
Turning to the error assigned it appears appellant did not request an instruction that the city need not have notice of the icy condition of the sidewalk. In Updegraff v. City of Ottumwa,210 Iowa 382, 390, 226 N.W. 928, 931, the court said:
"The court * * * gave the customary instruction on the subject of notice. Error is predicated on the giving of this instruction, upon the theory that the court should have told the jury that, if the city had, or should have had, notice of the defective condition of the down spout and that same had become a nuisance because ice had previously accumulated upon the sidewalk on account thereof, it was unnecessary for the city to have further notice of the condition of the walk at the time of the accident, or time to remove the same. The instruction given was abstractly correct. If appellee desired a further instruction on the subject, — that is, one that would more fully have submitted her theory of notice to the jury, — an instruction to that effect should have been requested. * * *."
Furthermore, the case at bar was tried upon the theory expressed in the portion of the instruction of which appellant now complains. The petition alleged that the city had actual or constructive notice of the icy condition of the walk. Evidence was introduced in support of this allegation. We have frequently held a court is not required to instruct on a theory not in the case as tried. Lush v. Town of Parkersburg, 127 Iowa 701,104 N.W. 336; Boerner Fry Co. v. Mucci, 158 Iowa 315, *Page 1385 138 N.W. 866; Ryan v. Shirk, 207 Iowa 1327, 224 N.W. 824; Struebing v. Stevenson, 129 Iowa 25, 105 N.W. 341; Buchanan v. Hurd Creamery Co., 215 Iowa 415, 246 N.W. 41. Having invited this instruction and failed to request different instructions, appellant may not now attack it.
No reversible error appearing, the judgment is affirmed. — Affirmed.
CHIEF JUSTICE and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430916/ | The plot of ground involved here is an area marked "levee" on the plat of Clinton, Iowa. It is a rectangular *Page 948
plot located along the Mississippi River side of the city. The plat referred to is the original plat of the town of Clinton filed by the original owners, the Iowa Land Company, in 1855. Over the years much of the area designated on the map as "levee" was converted into a park, but part of the area was used as a levee up until 1947. The record shows that just prior to 1947 two streets led from the residence area across the levee and down to the river; that these streets were used by boat owners in going to and from their boats and the city, and in launching boats and removing them from the river.
In 1947, the City of Clinton, through its Board of Park Commissioners, in accordance with plans earlier adopted for the improvement of Riverview Park, closed these remaining streets that led across the levee area and down to the river. Thereafter the entire area became Riverview Park with a sea wall of riprap on the river side that completely obstructed further access to the river by vehicles and, for all practical purposes, by pedestrians.
The plaintiff brought this action against the city and the park commissioners, seeking a writ of mandamus to compel the defendants to remove the obstruction in the afore-mentioned streets near the river terminus of the streets. The plaintiff alleged he was a resident and a citizen of the City of Clinton, and a property owner therein, and a taxpayer of the city and of the State of Iowa and he sought an injunction against the further expenditure of public money by the park board upon this levee area. The trial court dismissed plaintiff's petition.
I. This case was submitted during the May 1949 term of this court. We think the case is ruled by Carson v. State, 240 Iowa 1178,38 N.W.2d 168, submitted during the same term. That is why we have not felt it necessary to make a more extended statement of facts, and why we do not think it necessary to discuss all of the many propositions urged by plaintiff for reversal. When we read the long but excellent brief filed by plaintiff we think we go right to the heart of his case when we discuss one proposition. Here, as in the Carson case, we pass the question of the right of a member of the general public to maintain an action to restrain a public nuisance and go to the merits of the *Page 949
controversy, bottomed upon the contention, as stated in plaintiff's brief, that: "Property dedicated to or for a specific public use, and so held and owned by a municipal corporation, may not be diverted to other or different uses or purposes which are foreign to or destroy the purpose of the original grant. And not even the state legislature has power to effect or authorize such a diversion thereof."
The same contention was made in the Carson case, and in our opinion, speaking through Justice Smith, we announced the following rule:
[1] "With full realization of the fact that there are judicial pronouncements to the contrary we hold that where land, already publicly owned, is designated for some particular public use no contractual trust arises in favor of the general public that precludes subsequent diversion of it by proper legislative authority to some other and different public use; at least, where no special private rights have in the meantime arisen by purchase or improvement of adjacent property in reliance on the permanency of the public use in question." Page 1189 of 240 Iowa, page 175 of 38 N.W.2d.
[2] The Carson opinion goes on to hold that legislative authority for the diversion from one public use to another is found in the general statutes "permitting municipalities not only to acquire and lay out but also to vacate * * * public grounds and dispose of same whenever such lands are deemed unsuitable for the purpose for which they were originally granted." See sections403.11 and 403.12, Code, 1946. We observed in the Carson case that the right to "vacate and dispose of" (the words of the earlier statute) are broader than the right to divert from one public use to another. So too we can say the right "to dispose of and convey" found in the present statute (section 403.11, Code of 1946) would include the lesser right to divert to another public use.
Here, as in the Carson case, the plaintiff made no allegation of private damage or that any private rights were invaded by the diversion of the entire plot from a levee to a park. The only difference in the two cases is that in the Carson case the park that was diverted to a college site was never privately *Page 950
owned, while here, the levee was once the private property of the Iowa Land Company. That might make a difference if plaintiff were claiming through the Iowa Land Company and alleging private damage, but he is not. He pleaded that he was maintaining his suit "as a member of the public" and he testified: "I certainly would not have brought this suit, if I was doing it as an individual; the suit was brought for the good of the boating fraternity on the Mississippi River."
Plaintiff cites decisions from other states in support of his proposition and the following Iowa authorities: Warren v. Mayor of Lyons City, 22 Iowa 351, Ransom v. Boal, 29 Iowa 68, 4 Am. Rep. 195, and Cook v. City of Burlington, 30 Iowa 94, 6 Am. Rep. 649. These three cases were the Iowa authorities relied on in the Carson case, and distinguished in our opinion. We need not discuss the decisions of other states for, as we said in the Carson case, we recognize that there are decisions to the contrary in other jurisdictions but we do not care to follow them.
[3, 4] Plaintiff's case as a taxpayer, for an injunction against expenditures of public funds alleged to be illegal because they were made for the purpose of making a park out of the levee, falls with the collapse of his case for a writ of mandamus. While plaintiff would not be required to plead and prove a private damage for this part of his case, he should have proven his status as a taxpayer. The record is none too clear on the latter point but in any event the view we take, that the city could lawfully divert from a levee to a park, means that expenditures to accomplish that diversion are not unlawful.
[5] Further consideration would merely be a restatement of the considerations that prompted our conclusion in the Carson case. With no showing of fraud, arbitrary action or abuse of power, the city's action in diverting from levee to park will not be reviewed. In justice to plaintiff we again point out that the Carson opinion had not been written at the time of the submission of his case and some of the statements in our earlier decisions, not necessary for the conclusions there reached, would support the basic proposition of his suit. The decree of the trial court is affirmed. — Affirmed.
All JUSTICES concur except MANTZ, J., not sitting. *Page 951 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430966/ | Count I of plaintiff's petition alleges that plaintiff's five-year-old intestate was killed on October 2, 1943, by a truck driven by defendant Seilhamer while intoxicated and with the consent of defendant Haegg Roofing Company, the owner thereof. The action as against the owner is predicated on such consent alone. Specifications of negligence of Seilhamer as the proximate cause of the claimed injury are, of course, included.
[1] Count II alleges that defendant Seilhamer was an employee of his codefendant and that the claimed injury occurred as he was returning the truck to his employer's garage after work. It, too, contains allegations of negligence of Seilhamer as the proximate cause of the injury.
Count II also contained various allegations to the general effect that defendant Seilhamer had been in the employ of defendant Haegg Roofing Company for a number of years; that he was a man who often became intoxicated and was not a competent person to be in charge of or driving the truck; that defendant Haegg Roofing Company knew this fact, or in the exercise of reasonable diligence should have known it; that knowing it, said company was negligent in permitting him to drive the truck on the day in question; that it knew on the forenoon of said October 2d, that its said employee on said day had been drinking intoxicating liquor and was partially intoxicated and not competent to be driving the truck, and that on divers occasions he was in the habit of driving it for his own personal use; and that the negligence of Haegg Roofing Company in all these respects, combined with the other negligent acts alleged, was the proximate cause of the injury that resulted in the death of plaintiff's intestate.
These last-enumerated allegations were on motion stricken from the petition and from this ruling plaintiff, having obtained *Page 987
permission under Rule 332, Iowa Rules of Civil Procedure, appeals. Haegg Roofing Company will be referred to as appellee.
I. It will be observed Count II pleads a cause of action based on the theory of respondeat superior. Allegations of the relationship of master and servant and that the injury occurred while the servant was returning the truck to the owner's garage after work would be immaterial otherwise.
On the other hand, the stricken portions were quite immaterial to a cause of action based on the theory of imputed negligence because of the relationship of master and servant.
The cases cited by appellee are quite conclusive to the proposition that the master's liability to third persons for injuries negligently inflicted by the servant while in the course of his employment is based on the specific negligent acts of the servant being imputed to the master and not on original negligence of the master in employing a careless and incompetent servant. See Black v. Hunt, 96 Conn. 663, 115 A. 429; Minot v. Snavely, 8 Cir., Mo., 172 F. 212, 19 Ann. Cas. 996; Denver City Tramway Co. v. Cowan, 51 Colo. 64, 116 P. 136; Grand Rapids
I.R. Co. v. Ellison, 117 Ind. 234, 20 N.E. 135.
We think the ruling of the court must be affirmed on the ground that the stricken portions embodied subject matter that was immaterial and irrelevant to the cause of action based on respondeat superior.
[2] Motion is the proper remedy for improper joinder of actions and the court properly struck the cause that was improperly joined. Rule 27 (b), Iowa Rules of Civil Procedure.
[3] II. But the motion to strike urged another ground, viz., that the stricken portions of the petition constituted an attempt to plead a theory of liability "unknown to the law." The ruling of the court was general and did not reveal upon what ground it was based. An unqualified affirmance here might be construed as sustaining this ground.
The argument of appellant on appeal is directed principally to this attack. He argues for a theory of liability entirely distinct from that pleaded in Count I and also entirely distinct from one dependent on the relationship of master and servant or principal and agent. *Page 988
This theory is that the owner of a motor vehicle may be held liable for a resulting injury to a third person upon the ground of negligence if he knowingly entrusts its operation to an inexperienced or incompetent driver. 42 C.J., Motor Vehicles, section 836; Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975; Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128; Mitchell v. Churches, 119 Wash. 547, 206 P. 6, 36 A.L.R. 1132; Smith v. Nealey, 162 Wash. 160, 298 P. 345; 5 Am. Jur., Automobiles, section 355; Berry, Automobiles, Sixth Ed., section 1327. Other cases will be found cited in General Digest, "Automobiles," Key No. 192 (11).
This is on the principle that, though the automobile may not be technically a dangerous instrumentality, it is nevertheless one capable of doing great damage in the hands of an incompetent driver. Smith v. Nealey, supra, citing Berry on Automobiles (3rd Ed.) section 1040; Elliott v. Harding, supra; Mitchell v. Churches, supra; 5 Am. Jur. 696, note 18, citing cases.
In cases of the kind we are now discussing liability does not rest on the rule of respondeat superior (Elliott v. Harding, supra; Smith v. Nealey, supra) but upon the combined negligence of the owner and the driver, the owner's negligence consisting in the act of loaning the car to an incompetent driver and the latter's negligence in its operation. Lutfy v. Lockhart, supra; Mitchell v. Churches, supra.
No Iowa case is cited in support of this theory and we have found none. However, it seems to be well established as a common-law proposition and we must hold it is in effect here unless it has been abrogated by statute.
[4] III. Appellee contends that the rule is "inapplicable" in view of our consent statute, section 5037.09, Iowa Code, 1939 (section 5026, Iowa Code, 1924), which provides:
"In all cases where damage is done by any car by reason of negligence of the driver, and driven with the consent of the owner, the owner of the car shall be liable for such damage."
We think the contention unsound. It is true the statute does in one way broaden the common-law rule of liability. Robinson v. Bruce Rent-A-Ford Co., 205 Iowa 261, 266, *Page 989 215 N.W. 724, 61 A.L.R. 851. In Page v. Koss Construction Co.,219 Iowa 1017, 257 N.W. 426, we held that the statute provides a cause of action different from one growing out of the relation of master and servant. Lind v. Eddy, 232 Iowa 1328, 6 N.W.2d 427, 146 A.L.R. 695, says the statute does not create the relationship of principal and agent, notwithstanding the language of some earlier cases, but that the liability created is analogous to that of a principal for the negligence of his agent. Seleine v. Wisner, 200 Iowa 1389, 206 N.W. 130, upholds the constitutionality of the statute even though it creates liability when no relationship of master and servant is shown.
But none of these cases cited by appellee leads to the conclusion that the statute has entirely replaced all common-law rules of owner's liability. It has created liability in some situations where none existed before. It does as appellee says: imposes liability on the owner for the negligence of the driverwhether he knew the driver was incompetent or not.
But that is true only if the car is being driven with his consent at the time of the injury. If it was placed in the driver's possession for a specific trip or purpose, there is no liability of the owner under the statute if injury to a third person results from negligent operation of the vehicle while being used for a different and unauthorized purpose. Heavilin v. Wendell, 214 Iowa 844, 241 N.W. 654, 83 A.L.R. 872; Maine v. Maine Sons Co., 198 Iowa 1278, 201 N.W. 20, 37 A.L.R. 161; Rowland v. Spalti, 196 Iowa 208, 194 N.W. 90.
We see no reason for holding in the latter case that the common-law rule of liability might not be invoked against the owner if he negligently placed the vehicle in the hands of a known incompetent driver, thereby making possible the injury to others by reason of negligent operation, even though the particular use at the time of the injury was beyond the scope of his consent. It would have to appear, of course, that such independent negligence of the owner proximately caused the injury complained of.
We have examined the Michigan cases cited by appellee. Kalinowski v. Odlewany, 289 Mich. 684, 287 N.W. 344; Stapleton v. Independent Brewing Co., 198 Mich. 170, 164 N.W. 520, L.R.A. 1918A, 916. Neither one constitutes a clear holding *Page 990
that the statute entirely supersedes the common-law rules as to the liability of owners of negligently driven motor vehicles. Nor is the Michigan statute, C.L., 1929, section 4648, identical with ours. It provides:
"The owner shall not be liable however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge." (Italics supplied.)
Our own statute says the owner shall be liable in all cases if
the vehicle is driven with his consent. The Michigan statute is restrictive and exclusive; our own is inclusive and enlarging in character. It is not clear that they are similar in their impact upon the existing common-law rules.
The decision of the trial court is affirmed for the reasons heretofore stated, but without prejudice to appellant's right to plead separate causes of action in separate counts if he shall so elect. — Affirmed and remanded.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430848/ | The plaintiff, Farmers Savings Bank of Wilton Junction, was duly incorporated in Iowa in 1904. The defendant, C.C. Kaufmann, since its incorporation had been its president, a member of its board of directors, and a member of its loan and examining committee, until January, 1922.
The instant action is to recover judgment in the sum of $8,144.95, with interest, and is predicated upon a breach of official duty, in that the defendant, as plaintiff's president and director, occupied a fiduciary relationship 1. BANKS AND to said bank, and, by virtue of said BANKING: relationship, procured the bank to accept and officers: approve notes that otherwise would not have been responsibi- accepted or approved, through his assurances to lity for the other officers of the bank that he worthless (defendant) was personally responsible for the loans. indebtedness in question, and would see that said indebtedness would be paid. The facts are not in serious dispute, and this appeal simply calls for an expression of the applicable legal principle. *Page 653
It is obvious that the defendant, as president and director, was in a fiduciary relationship to the bank. For all practical purposes, he was a trustee, and was legally obligated to care for the property of the bank and manage its assets in good faith. For any willful breach of trust or misapplication of the corporate funds, or for any gross neglect of or inattention to his official duties, he was responsible to the corporation. Toledo Sav. Bankv. Johnston, 94 Iowa 212; City Nat. Bank v. Crow, 27 Okla. 107
(111 P. 210); Greenfield Sav. Bank v. Abercrombie,211 Mass. 252 (97 N.E. 897, 39 L.R.A. [N.S.] 173); Bosworth v. Allen,168 N.Y. 157 (55 L.R.A. 751, with note); Western Bank of Louisvillev. Coldewey's Extx., 120 Ky. 776 (83 S.W. 629); 7 Corpus Juris 566.
In Brown v. Farmers Merch. Nat. Bank, 88 Tex. 265 (33 L.R.A. 359), it is said:
"The directors are therefore charged with a delicate trust, from which the beneficiaries are powerless to discharge them, and which they have sworn to administer diligently and honestly, so far as the duty devolves on them. This is especially true of the president, who is not only a director, but also the chief executive officer, of the bank, and who, from the nature of his office, naturally has great influence upon the policy of the bank and the conduct of the various employees in the discharge of their duties. * * * He is presumed to know the law, and therefore knows that no action can be maintained upon his collateral promise or the promise of the minor, if the proper defenses are made, as above indicated."
We ask, therefore, Is the defendant-appellant liable to respond in damages as prayed, and to reimburse the plaintiff-bank for the loss alleged to have resulted by his conduct while acting as the president and director of the bank? What are the primary facts? The transaction giving rise to the instant suit has reference to two loans originating in March, 1918, to Charles B. Kaufmann, son of appellant. Subsequently, and in January, 1920, renewal notes were executed by Charles B. Kaufmann, as hereinafter mentioned. It is charged that, by reason of the insolvency of the maker and the uncollectibility of these notes, the bank sustained the loss in question, as a direct and proximate result of appellant's misuse of his official position. *Page 654
It appears that appellant was possessed of large financial resources, and was engaged, in addition to his banking enterprise, in farming activities on a large scale. The son Charles had many dealings, through his father, with the bank, and it is shown that, in the year 1909, while a minor, he gave his note to the plaintiff bank for $4,000. In that transaction, the father's note, payable to the son, was placed as collateral to the note which the son gave the bank. In 1915, the note of the son for $1,700 was received by the bank, and credited in like manner to the appellant's account. In 1917, a note for $3,700, with appellant joining in its execution, was received by the bank, and likewise credited to the appellant's account. These notes were handled in this manner to avoid an overloan on the part of the bank to the appellant. Subsequently to the graduation of the son from the law school of the state university, he organized and promoted an auto supply company at Davenport, under the trade name of Midwest Motor Company. In this enterprise the son was helped in a very material sense by his father. The son had no personal credit, and all of the directors of the bank other than appellant testified that at no time was the son considered worthy of credit on his own account, and that the son's note for as much as $1,000 would at no time have been considered good or bankable. In February, 1918, the son drew his check on the plaintiff-bank for a large sum, and cashed the check in Davenport. This check was dishonored, and without previous arrangement, the son sent his note to the plaintiff-bank. The cashier reported these matters to the appellant, and testified that the appellant told him "to pay all checks of his son, Charles B. Kaufmann, even if they should amount to as much as $10,000." In March, 1918, the son drew two checks on the plaintiff-bank for $3,000 and $3,100, respectively, and sent to the bank his notes for like amounts. The cashier stated that, prior to accepting these notes, he submitted the matter to the appellant and was directed by the latter to pay the checks and accept the notes. At this time, he assured the cashier that the notes were good, and "were in all respects proper loans to make, and gave as the reason for appellant, not then signing the notes, his overloan condition with respect to the bank's loaning limit." *Page 655
It may be stated that the cashier, F.C. Wickes, was formerly engaged as a school teacher in the district in which the son attended school, and when the bank was organized, Wickes was appointed cashier, and continued in that position until the trial of this case. He states that he felt a peculiar sense of obligation to the defendant for his position as cashier, and frequently deferred to the defendant's judgment and directions in the matter of loans. This is purely an incidental matter, but it serves to illustrate that the defendant exercised a dominant influence in the affairs of the bank.
In April, 1918, the appellant and his son went to the bank, and renewal notes were executed for the indebtedness owed by appellant to the bank; and at this time, two notes of $4,000 each were signed, one by appellant himself, and the other by appellant's wife, and the appellant himself signed two notes in the sum of $1,810.50 and $1,976.30, respectively. On January 2, 1920, there was a further renewal transaction, and the notes involved in the instant suit were executed. At this time, two notes were executed by appellant's son to the bank, one for $4,000 and the other for $2,325.46, both payable one year after date.
There can be no question, under the record, that these notes were approved by the board of directors on the assurances of the appellant that "these notes were good, and that he [appellant] was back of them, and would see that they were paid." Director Witmer testified that this statement was made by the defendant before the notes were accepted by the board. The notes in controversy were discussed in board meeting at different times, and the appellant was requested to sign with the son, which he had previously agreed to do. In this particular, Director Dwyer testified:
"Defendant said, `Let it go for awhile; they're good. It will be all right, and I will fix it up for a while.' The board approved the loan with the assurances that C.C. Kaufmann was back of them, because he made the loan to Charles [his son]. He never consulted the rest of us."
The other directors corroborated the testimony in these particulars.
It also appears that, shortly before the organization of the *Page 656
bank, in November, 1904, a resolution was duly adopted by the board providing that each director should be responsible for loans made to any person whom he brought as a borrower to the bank, or whom he recommended for a loan. This matter had been a subject of discussion at board meetings, and, under the terms of this resolution, some of the directors were required to make good certain paper which had been brought to the bank through their instrumentality. It may also be stated that the son had previously been made defendant in a law action on the two notes in question, and that judgment had been obtained against him. The judgment, however, remained wholly unsatisfied, and is shown to be uncollectible.
The trial court made a special finding in the case at bar, and determined that the loss to the bank resulted directly from a breach of the trust imposed in the defendant by reason of his office and relationship to the bank, and that, but for the assurances originally given and many times repeated by the defendant that he would hold the bank harmless on account of said loans, and his representation with respect to said loans and his participation and direction in the making thereof, the plaintiff bank would not have permitted the loaning of its funds to the defendant's son, with the resultant loss to the bank. This finding had ample support in the evidence, and we discover no reason to interfere with the judgment entered.
In conclusion, and in answer to the proposition of the appellant that the statute of frauds must defeat a recovery in this case, we make brief answer. The statute is limited to cases in which a contractual obligation is the basis 2. FRAUDS, of recovery, and is but a rule of evidence. The STATUTE liability of the defendant is for a breach of OF: duty in a fiduciary relationship. The notes form operation: a part of the history of this case, but the breach of theory of liability is not bottomed thereon. fiduciary relation.
The decree entered is — Affirmed.
EVANS, ALBERT, and MORLING, JJ., concur. *Page 657 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430853/ | The petition alleges that the assessment against the lots in question was in excess of the benefits conferred, and greatly exceeded 25 per cent of the actual value thereof; that such over-assessment was intentionally and willfully made and constitutes fraud. It further alleges that assessment certificates based upon the over-assessment were issued to and received by the contractor in payment of the special assessment, and were duly assigned to the *Page 999
plaintiff; that said assessment certificates purchased by plaintiff certified that: "All acts, conditions, and things required to be done precedent to, and in the issuing of this certificate have been done, happened and performed in regular and due form as provided by law;" that plaintiff purchased said certificate in particular reliance upon the statements contained therein, that all acts required to be done by law had been fully complied with by the city, and relying thereon, plaintiff paid full value therefor. Plaintiff further alleges that the city failed and neglected to comply with the requirements of the statute in failing to levy the assessment in proportion to the special benefits conferred, and contrary to law, levied said special assessments greatly in excess of 25 per cent of the actual value of said lots; that said over-assessment was willful and intentional; that the city, arbitrarily and illegally, as the basis of such assessments, fixed valuations upon said lots having no relation to the real or actual value thereof; that such lots were over-assessed to such an extent that a sale thereof would not realize the amount of such certificates; that such over-assessments constituted, as a matter of law, a fraud upon the holder of the certificates; that as a result of said over-assessment the owners of said lots have permitted them to go to tax sale for the ordinary taxes; and as a result thereof plaintiffs have been unable to collect the amount of said certificates and were damaged in the sum of over $40,000.
The foregoing, in substance, are the facts alleged in the petition. To the petition the defendant filed the following demurrer:
"That the facts stated in plaintiff's petition do not entitle plaintiff to the relief demanded or any relief for the following reasons:
"(a) Said petition fails to show the special assessment certificates referred to in said petition to be illegal or invalid.
"(b) Fails to show any contract or statutory obligation upon defendant to collect and pay over to the certificate holder the said special assessments.
"(c) Fails to show any failure of the defendant to perform any duty or obligation owing by defendant to the plaintiff which can be a ground for the recovery of damages.
"(d) Fails to allege any facts upon which recovery of damages may be based, or to make any showing that plaintiff has been damaged by any act or omission of defendant.
"(e) Shows that the special assessment certificates referred to in plaintiff's petition were issued in pursuance of proper proceeding *Page 1000
and that the question of the extent of benefits and the amount properly and lawfully assessable against the property described in said certificates has been determined and settled by the tribunal provided by law for that purpose and that plaintiff is the assignee of a party to such proceeding and is bound thereby.
"(f) Fails to allege any facts constituting fraud or collusion on the part of the defendant."
The lower court sustained the demurrer, and plaintiff alleges error because of such ruling for the reasons hereinafter considered.
I. The reasons set out in one branch of the errors alleged are substantially included within the following: That the property was over-assessed, and that such assessment greatly exceeded 25 per cent of the actual value of such property, and that by reason thereof the assessment certificates became uncollectible, and the plaintiffs were damaged to the extent of the difference between the amounts paid upon said assessments and the original amount of the special assessments levied.
The errors so alleged were fully considered by us in the recent case of Stockholders Investment Co. v. Town of Brooklyn, 216 Iowa 693, 246 N.W. 826. In that case we held that the assessment was levied in such a manner as to constitute a valid lien against the property assessed, and that an over-assessment does not create a liability against the city in favor of the certificate holders.
The various cases cited by appellant as supporting its contention, that the city is liable for levying an over-assessment against the property in question, are fully reviewed by this court in Stockholders Investment Co. v. Town of Brooklyn, supra, and a further consideration of them here is deemed unnecessary. In discussing the distinction between those cases and the Brooklyn case, this court said (loc. cit. 707):
"The distinction between the cases cited and the one at bar is easy of perception. In those cases the bonds or obligations were payable out of a special fund, which the city obligated itself to create. In the case at bar there was no such obligation. The special certificates were not payable out of a special fund. The town was not obligated, either by statute or by contract, to create any special fund. What the town of Brooklyn was obligated to do was to institute and pursue proper proceedings in the issuance and delivery of the special certificates here involved, and according to the allegations *Page 1001
of plaintiff's petition, it did so do. It levied proper assessments in sufficient amounts to pay the various certificates issued, and obtained a waiver of the various property owners and their separate promises to pay the assessments so levied. Appellant contends that in the particular instances involved, such assessments were in excess of 25 per cent of the value of the various properties. Significant in this regard appears the fact that the first two or three of the seven installments provided for in the certificates were paid by the property owners prior to the commencement of this action. The town pursued, legally, the only course that was open to it in fixing and determining the amount of these assessments. No other tribunal is provided to do this, and no other procedure exists by which it can be done. There is no claim of fraud or collusion made by appellant. The property owner's promise to pay is available to the plaintiff only and not to the city. The plaintiff has the right to purchase the various properties at tax sale, or in any other way enforce the lien created by the special assessment. The defendant town has no such right. We are not prepared to extend the doctrine announced in the Hauge case [Hauge v. City of Des Moines, 207 Iowa 1209, 224 N.W. 520] and others similar, and hold that municipalities are liable upon special assessment certificates, such as are involved in the case at bar, solely upon the allegation and claim that they exceeded their authority or violated their duty in fixing and levying special assessments * * * in greater amounts than 25 per cent of the value of the property assessed, especially where that is the only ground of attack and * * * no fraud or collusion is claimed. Barber Asphalt Pav. Co. v. Woodbury County, 137 Iowa 287, 114 N.W. 1044; Durst v. City of Des Moines, 150 Iowa 370, 130 N.W. 168; Anderson-Deering Co. v. City of Boone, 201 Iowa 1129, 205 N.W. 984; Downey v. City of Sioux City, 208 Iowa 1273, 227 N.W. 125."
The facts in this case are exactly similar to the facts recited in Stockholders Investment Co. v. Town of Brooklyn, 216 Iowa 693, 246 N.W. 826, unless it be that the allegations of fraud as alleged in this case, and hereinafter considered, take it out of the doctrine announced in the Brooklyn case. In the instant case the city levied a proper assessment in a sufficient amount to pay the various certificates issued, and obtained the waiver of the various property owners, and their separate promises to pay the assessments so levied, and no objections were made by the property owners to the assessments *Page 1002
so levied. The assessment, therefore, was in fact a legal, valid, and binding assessment, and in a sufficient amount to pay the certificates. Clifton Land Co. v. City of Des Moines, 144 Iowa 625, 123 N.W. 340; Owens v. City of Marion, 127 Iowa 469, 103 N.W. 381; Durst v. City of Des Moines, 150 Iowa 370, 130 N.W. 168; Hubbell, Son Co. v. City of Des Moines, 168 Iowa 418, loc. cit. 425, 150 N.W. 701; Lytle v. City of Sioux City, 198 Iowa 848, 200 N.W. 416; Meijerink's Estate v. Lindsay, 203 Iowa 1031, 213 N.W. 934; Walter v. City of Ida Grove, 203 Iowa 1068, 213 N.W. 935.
The assessment certificates in the instant case were delivered by the city to the original contractors, and by them assigned to the plaintiff herein, and, as recited in the certificate in the Brooklyn case, the certificates in the instant case also provide:
"The City of Sioux City transfers and assigns to Booth Olson, contractors or assigns all right and interest of the City of Sioux City in the assessment herein described, and the holder hereof is authorized to collect and receive said assessment by or through any of the methods provided by law for its collection as the same matures."
The certificate in this case also provided, as did the certificate in the Brooklyn case:
"It is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the issuing of this certificate have been done, happened and performed, in regular and due form as provided by law. And the City of Sioux City hereby transfers to said Booth Olson or assigns all right and interest of the City of Sioux City in the assessment herein described, and the holder hereof is authorized to collect and receive said assessment by or through any of the methods provided by law for its collection, as the same matures."
Upon the question of over-assessments alone, irrespective of any allegations of fraud, the instant case would be controlled by Stockholders Investment Co. v. Town of Brooklyn, supra, and the over-assessment, in and of itself, would not be sufficient to create a liability on the part of the city.
II. It is contended that a different rule should apply in the instant case, because of certain allegations of fraud made in plaintiff's petition. The allegations of the petition in this case, relating to an over-assessment, are substantially identical to those made in *Page 1003
the Brooklyn case, except that in this case the plaintiff alleges "that it did levy special assessments greatly in excess of 25 per cent of the value of said tracts as shown by the last preceding assessment roll, and that it wilfully and intentionallyover-assessed the lots and tracts and parcels of real estate described in said special assessment certificates, against which said assessments were levied, and assigned an arbitrary and fictitious value to said real estate against which said assessments were levied. And * * * arbitrarily and illegally, as the basis of such assessments fixed valuations for said lots * * * having no relation to the real or actual value thereof; * * * that said tracts * * * were over-assessed to such extent that a sale thereof would not realize the amount of such said certificates * * * that the over-valuation and assessment of saidtracts * * * constituted, as a matter of law, a fraud upon the holder of said certificates issued by defendant city * * *." (Italics ours.)
With the exception of the use of the additional words, that the over-assessments were made willfully and intentionally, and "that such willful and intentional over-assessment constituted a fraud upon these plaintiffs," there is, in substance, no difference between the allegations of the petition in the instant case than those in the Brooklyn case. No facts showing any acts of fraud or collusion on the part of the defendant city are in any manner alleged.
It is true that plaintiff alleges that the over-assessment in this case was made willfully and intentionally, but we can see no difference between the acts accomplished in this case and those in the Brooklyn case. In that case it was alleged that the citymade an over-assessment of the parcels of land in question. There is, therefore, no material difference between the allegations of the petition in the instant case and those in the Brooklyn case. The mere allegation "that such acts constituted fraud" upon the plaintiff, is not a sufficient allegation of fraud to avoid the rule announced in the Brooklyn case. The effect of the ruling announced in the Brooklyn case cannot be avoided by simply alleging the same state of facts and then alleging that the doing of such acts constitute a fraud. In the Brooklyn case we held that the acts committed did not constitute fraud. Such allegations in the instant case are a mere conclusion of the pleader, and are not sufficient to constitute fraud. Midland Mortgage Co. v. Rice, 197 Iowa 711, 198 N.W. 24; Legler v. West Side Mutual Fire Ins. Ass'n, 214 Iowa 937, 243 N.W. 157. *Page 1004
An over-assessment does not constitute fraud even though such assessment is grossly disproportionate to the value of the property. Lytle v. City of Sioux City, 198 Iowa 848, 200 N.W. 416; Meijerink's Estate v. Lindsay, 203 Iowa 1031, 213 N.W. 934; Walter v. City of Ida Grove, 203 Iowa 1068, 213 N.W. 935; Stockholders Inv. Co. v. Town of Brooklyn, 216 Iowa 693, 246 N.W. 826; Morrison v. Culver's Estate, 216 Iowa 676, 248 N.W. 237; Owens v. City of Marion, 127 Iowa 469, 103 N.W. 381.
In Lytle v. City of Sioux City, supra, loc. cit. 851, this court said:
"Neither inequalities in the assessment nor the failure of the city council to take testimony as to the actual value of the property is sufficient to establish fraud. Owens v. City of Marion, supra [127 Iowa 469, 103 N.W. 381]; Durst v. City of Des Moines, 150 Iowa 370, 130 N.W. 168. The fact that the assessment exceeds 25 per cent of the value of the property is a matter that is waived by a failure to file objection before the city council. * * * The assessment in excess of 25 per cent of the value of the property was erroneous, and could not have been sustained, had appellant taken the steps pointed out by the statute. He did not do so; and this failure on his part is, under the statute, a waiver of his right to object to the amount of the assessment. He did not, however, waive any objection based on fraud; and, if thefact that the assessment was grossly excessive must be said toconstitute fraud, he did not waive any objection on that account.
But he did, under the statute and our prior decisions, waive any objection to the amount of the assessment, and the city council, acting in view of his waiver, confirmed the proposed assessment. We think it cannot be said that the action of the council in acting on his waiver, which must be taken in connection with the assessment proposed to be made, * * * was fraudulent, within the contemplation of the statute * * *. The essence of fraud is bad faith. * * * When he failed to object, * * * we do not think bad faith is to be imputed to the council in accepting his waiver at its face, and making the proposed assessment. It was excessiveand erroneous and subject to correction on appeal, but was notfraudulent." (Italics ours.)
In the instant case a plat of the proposed improvement including a list of the proposed assessments was on file. Notice of the filing thereof was duly given. The amounts of such assessments were, *Page 1005
or must have been known to the contractor, and when the city levied said assessments, with the knowledge of the contractor, and without any objection on the part of the lot owners, but with their approval and consent, it cannot be said that the acts of the city council, in levying the assessments, constitute fraud or bad faith.
There being no actual fraud alleged, it necessarily follows that the doctrine announced in Stockholders Investment Co. v. Town of Brooklyn, 216 Iowa 693, 246 N.W. 826, is controlling upon us here. The judgment of the lower court is therefore hereby affirmed. — Affirmed.
ANDERSON, C.J., and MITCHELL, DONEGAN, POWERS, PARSONS, HAMILTON, and RICHARDS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430855/ | I agree that the judgment entered in this cause should be affirmed, but I prefer to base the affirmance on other and different grounds. It was incumbent upon the drawee-bank (plaintiff) to prove that the indorsement of Hazen Spears was a forgery. There is no record evidence that the man who presented the check to the defendant Bloomfield Bank for cashing was not "Hazen Spears." The proof shows that the presenter purporting to be "Hazen Spears" said to the cashier of the cashing bank that his name was Hazen Spears. There is no evidence that the man did not tell the truth. *Page 823
The fact that a man by the name of Hazen Speer lived in the community is not proof that the man who presented the check for cashing was not Hazen Spears. It was conceded by both parties that the signature "Hazen Spears" appearing on the reverse side of said check is not the genuine signature of Hazen Speer, nor made by the authority nor within the knowledge of Hazen Speer. There is no record evidence that would permit the inference that these two names represented one and the same person, and under these circumstances, the doctrine of idem sonans is not applicable. There is no occasion to make any pronouncement whether a right of recovery would exist if the facts upon which appellant's proposition is grounded were established by competent proof. It is sufficient to state that there was no proof that Hazen Spears's signature was a forgery. The original decision in this case, as reported in 226 N.W. 119, which gives rise to the instant petition for rehearing, was based on a hypothesis not sustained by the record, in this: that it was assumed that the indorsement of the payee, Hazen Spears, was a forgery.
A second proposition relied upon by the plaintiff-appellant is that the indorsement by the cashing bank, "Prior indorsements guaranteed," constituted a contract between the plaintiff bank and the defendant bank, amounting to a warranty that the indorsement of Hazen Spears was genuine. It is sufficient to state that an indorsement on a check is for the benefit of subsequent holders, and not for the drawee. Every indorser who indorses without qualification warrants to all subsequent holdersin due course the matter specified in Section 9526, Code, 1927, and in the preceding Section 9525. It is quite obvious that a drawee-bank who has paid a check is not a subsequent holder in due course. When the check is paid, it becomes a dead instrument. There is no longer a "holder," as defined by Section 9652, Code, 1927. It is self-evident that a person could not be a holder in due course of an instrument unless he is a holder.
A third proposition, under the allegations in the petition, relied upon by plaintiff-appellant, is that the act of the defendant bank in cashing the check without requiring the presenter to be identified was an act of negligence which was the proximate cause of the payment by the drawee in the amount of the forged check, resulting in the prayed damage to plaintiff. There is *Page 824
no merit, under the facts, in this proposition. There is no evidence that placed the cashing bank on suspicion at the time the check was presented at its counter for payment. It was done in the usual course of banking business. Full value was paid the presenter for the check. The cashing bank had no notice or knowledge of any infirmity in the instrument or defect in the title of the person negotiating it. The cashing bank did become a holder, and it became a holder in due course. We are not dealing with a liability on the part of the cashing bank to an intermediate holder by reason of the forgery of the drawer's name. Here, the defendant cashing bank was a bona-fide non-negligent holder, and the rule is that, under such conditions, the doctrine of Price v. Neal, 3 Burr. (Eng.) 1355 (1 W. Bl. 390, 97 Eng. Reprint 871), finds application. It is the controlling proposition of law in the instant case. There is no doctrine of contributory negligence involved here, and, although the trial court reached the right conclusion, the judgment entered was not predicated on the right reasons. The doctrine ofPrice v. Neal, supra, is a rule of the Law Merchant, and, under the Uniform Negotiable Instruments Law, Section 196 (Section 9657, Code, 1927), the Law Merchant governs in any case not provided for in the Negotiable Instruments Statute. The doctrine of Price v. Neal has been stated and approved by this court.First Nat. Bank v. Marshalltown State Bank (1899), 107 Iowa 327
(44 L.R.A. 131). The latest pronouncement and approval of Pricev. Neal are found in Cherokee Nat. Bank v. Union Trust Co.
(1912), 33 Okla. 342 (125 P. 464), which case is quite analogous, on the facts, to the instant case. In brief, Price v.Neal has been adopted by all states in the American Union except Pennsylvania, whose legislature expressly abrogated the rule (Pennsylvania Statutes 1920, Section 16011 [Act of April 5, 1849, P.L. 426, Section 10]), and except North Dakota, which state by judicial interpretation has repudiated the doctrine. First Nat.Bank v. Bank of Wyndmere (1906), 15 N.D. 299 (108 N.W. 546, 10 L.R.A. [N.S.] 49, 125 Am. St. 588).
The plaintiff failed to establish any proposition relied upon for a reversal, and, under the record, the rule of Price v. Neal,
supra, is determinative of this cause. *Page 825 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4070195/ | AFFIRM; and Opinion Filed May 28, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00962-CR
No. 05-14-00963-CR
ALLEN HO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F13-58092-J, F13-58094-J
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Evans
Opinion by Justice Fillmore
A jury convicted Allen Ho of two aggravated robbery with a deadly weapon offenses.
The trial court rendered judgment sentencing Ho to fifteen years’ imprisonment in each case.
See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). On appeal, Ho’s attorney filed a brief in
which she concludes the appeals are wholly frivolous and without merit. The brief meets the
requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional
evaluation of the record showing why, in effect, there are no arguable grounds to advance. See
High v. State, 573 S.W.2d 807, 811–12 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a
copy of the brief to Ho. We advised Ho of his right to file a pro se response, but he did not file a
pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014)
(identifying duties of appellate courts and counsel in Anders cases).
We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005). We agree the appeals are frivolous and without merit. We find
nothing in the record that might arguably support the appeals.
We affirm the trial court’s judgments.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140962F.U05
-2-
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ALLEN HO, Appellant Appeal from the Criminal District Court
No. 3 of Dallas County, Texas (Tr.Ct.No.
No. 05-14-00962-CR V. F13-58092-J).
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.
Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Judgment entered May 28, 2015.
-3-
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ALLEN HO, Appellant Appeal from the Criminal District Court
No. 3 of Dallas County, Texas (Tr.Ct.No.
No. 05-14-00963-CR V. F13-58094-J).
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.
Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Judgment entered May 28, 2015.
-4- | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430900/ | The plaintiff is the administrator of the estate of Wilhelmina Ege, deceased, who, on November 11, 1929, died as the result of injuries received by her two days before in the collision of an automobile, driven by the defendant, Born, with a light spring wagon, driven by the decedent. The defendant, LaPrell, owned and operated two butcher shops in the city of Dubuque, one at Number 1278 Central Avenue and the other at Number 2710 Jackson Street. Born was employed by LaPrell as a delivery boy. Shortly after noon on November 9th, Born was directed by LaPrell to take some meat from the shop located on Central Avenue to the one on Jackson Street. There is no question that Born had authority to use the car for the delivery of the meat. Jackson Street runs north and south, and in going north on said street and before getting to the butcher shop situated thereon, to which he was to make the delivery of the meat, he was stopped by a policeman on a motorcycle for speeding. Born then requested the officer to test the speedometer and the *Page 1141
officer consented to assist him in making the test. After the delivery of the meat, Born, in the automobile, and White (the officer) to the left, on a motorcycle, proceeded north on Jackson street to make the test of the speedometer. As stated, this test was made at the request of Born. The officer told Born to inform him when the Speedometer showed a speed of twenty miles an hour, which was done, and there was found to be a discrepancy between the speedometer and the true rate of speed of three miles per hour. As they proceeded, Born was told by the officer to inform him when the speedometer registered twenty-five miles per hour, and as they proceeded up the street between 28th and 29th Street the car driven by Born collided with the spring wagon or buggy of decedent, also being driven north, and the decedent was thrown from the spring wagon to the pavement next to the curb stone on the right side of the street and received injuries as the result of which she died two days later. The officer testified, without objection, "Born said he saw the buggy just too late to avoid hitting it; he said he was looking at his speedometer." The pavement on Jackson Street is forty feet wide between the curbstones. The officer testified that, as the decedent proceeded north, the wheels on the right side of the buggy were approximately three feet from the right hand curb. The street is one largely traveled and the accident occurred in a thickly populated portion of the city, there being a number of residences on the right side of the street and a floral shop on the left side. According to the record, there was ample room between the officer on the left and the buggy to enable Born to safely pass the buggy. It was a bright, clear day; there were no distracting circumstances — nothing to obscure the view and prevent Born from seeing the buggy, which was plainly visible and in the direct line of his vision immediately in front of him. Born testified that, as he was going north, "I was watching the street, the speedometer and the officer. * * * From where we had the talk about the speed to within about eight feet from the buggy, I was watching the speedometer but before that time I was watching the street, the speedometer and the officer."
[1] The plaintiff, in his petition, alleges that defendants were negligent in the following particulars:
(1) "In failing to pass the horse and buggy of plaintiff's *Page 1142
intestate without striking said buggy. (2) In failing to have his automobile under proper control so that he was able to stop before hitting the buggy of plaintiff's intestate. (3) In failing to keep a lookout for vehicles traveling ahead of him and to prevent collision therewith. (4) In failing to see plaintiff's intestate and the horse and buggy ahead of him until just before striking the same. (5) In testing out his speedometer at the time and place in question without having due regard to the traffic and the then existing conditions on Jackson Street."
The defendants moved to strike each of said grounds of negligence from the petition, for the reason as claimed by them, that said allegations are only statements of incompetent opinions and conclusions. They also moved to withdraw the same from the consideration of the jury. Said motions were overruled and each of said grounds of negligence was submitted to the jury. It is the contention of the appellants that the court erred in the aforesaid rulings. They rely upon our pronouncement in Cooley v. Killingsworth, 209 Iowa 646. We there held it to be error for the court to submit to the jury as a ground of negligence the general allegation, "that the driver operated and drove the automobile without regard for the rights and safety of the lives and property of others rightfully upon and using (the) * * * highway;" and that while said allegation follows in a general way, the language of Section 5028, Code, 1927, it is too general and indefinite to be the basis for the right of recovery when attacked by motion. Our holding in said case, is not authority for the contention of the appellants in the instant case. If, in the first ground of negligence alleged, the pleader had stated that the driver failed to turn his automobile to the left a sufficient distance to enable him to pass the vehicle in which the decedent was riding, it would hardly be contended that the allegation is a statement of a mere conclusion, and yet, this is virtually the equivalent of the allegation contained in the petition. The statements that the driver failed to pass the horse and buggy, without striking same, that he failed to have his automobile under proper control, that he failed to keep a lookout for vehicles traveling ahead, that he failed to see plaintiff's intestate and the horse and buggy ahead of him, and that the testing of his speedometer in the manner stated at the time and place *Page 1143
in question constituted negligence are sufficient statements of ultimate facts. Any failure to exercise ordinary care, that is, such care as an ordinarily careful and prudent person would exercise under the same or similar circumstances relative to any one of the aforesaid particulars charged in the petition would constitute negligence, and the court so instructed. The court was not in error in refusing to strike said allegations from the petition. The record contains evidence in support of each of the aforesaid grounds of negligence; therefore, the court was not in error in refusing to withdraw the same from the consideration of the jury.
[2] The appellants further contend that the court should have sustained their motion for a directed verdict on the ground that the decedent was, as a matter of law, guilty of contributory negligence. It is their contention that, at the time in question, she was driving contrary to the provisions of an ordinance of the city, which provides:
"Slowly moving vehicles shall keep as close as possible to the right hand curb so as to allow more swiftly moving vehicles free passage to the left."
There is evidence front which the jury could properly find that, at the time in question, the wheels on the right side of the buggy were three feet from the curb and that there was ample passage way to the left of the vehicle which she was driving. There was no error in the overruling of the motion for a directed verdict.
[3] The appellants complain because the court in one of the instructions stated that the duty to use ordinary care to observe automobiles and other vehicles ahead also implies the duty to see automobiles and other vehicles which are plainly visible. It is their contention that this instruction is erroneous because, as claimed, it imposed upon the driver of the car the absolute duty to see the vehicle driven by the decedent. In Holderman v. Witmer, 166 Iowa 406, we said:
"The duty to look implied the duty to see what was in plain view, unless some reasonable explanation is presented for a failure to see."
In Smith v. Spirek, 196 Iowa 1328, we said: *Page 1144
"When the defendant, saw, or with reasonable diligence could have seen, the decedent in time to so operate his car as to avoid the accident, it became his duty to so act."
The physical facts are such that, if the driver of the automobile had looked, he must have seen the vehicle in which the decedent was riding, which was immediately ahead of him. In the instant case, no reasonable explanation, in fact, no explanation is offered for the driver's failure to see. It was a bright, clear day and nothing to becloud the vision of the driver. There was no sudden emergency and no distracting circumstances, unless it be the testing of the speedometer, and this circumstance was of his own voluntary making. A diverting or distracting circumstance, self induced or of one's own voluntary making, is not sufficient to excuse him for failure to see what he must have seen had he looked. Bender v. Town of Minden, 124 Iowa 685; Cutshall v. City of Keokuk, 185 Iowa 808. Although he was at the time engaged in the testing of the speedometer, yet, he was voluntarily propelling the automobile along the highway, and it became his duty in so doing, to keep a lookout and to see what he must have seen, had he looked. The driver of an automobile must know that other persons have a right to use the street, and it is his duty to anticipate that the street will be so used and it therefore becomes his duty, in the absence of sufficient distracting circumstances, to look and to see what is plainly visible in the street ahead of him. As applied to the record in the instant case, the aforesaid instruction is not erroneous.
[4] It is shown that two of the decedent's sons were at the hospital the next day after the injury, and that there, in conversation with Born, the driver of the car, he stated, in substance, over the objection of the defendants, that he was going up Jackson Street; was watching his speedometer and that he looked up and saw the rig and then it was too late to turn out and he hit it; that there was no need to worry; that everything would be taken care of. We have held that, while such declarations or admissions by the driver of the car, not a part of the res gestae, are admissible as against the driver, they are not admissible as against the owner of the car. See Wilkinson v. Queal Lumber Company, 208 Iowa 933; Looney v. Parker, *Page 1145 210 Iowa 85; Wieneke v. Steinke, 211 Iowa 477; Cooley v. Killingsworth, 209 Iowa 646. In the latter case we said:
"The court, in this state of the record, should have clearly informed the jury that the driver might by his own admissions or statements, establish his negligence and his liability therefor, but that, before the appellee could recover from the owner of the car for the negligence of the driver, such negligence must be established by evidence other and different from the declarations and statements made by the driver of the car."
The court instructed the jury:
"This evidence (relating to the declarations and admissions of Joseph C. Born) must not be used by you to establish negligence chargeable against the defendant George LaPrell, but if plaintiff has proven by a preponderance of the credible evidence the negligence of the said Joseph C. Born as alleged (referring to the grounds of negligence) by evidence independent of said conversations and statement, then the defendant George LaPrell is chargeable jointly with the defendant Joseph C. Born with such negligence if the said Joseph C. Born at the time of the collision in question was driving said automobile with the consent of the defendant George LaPrell."
It will be noted that the court in said instruction fully complied with our requirement in Cooley v. Killingsworth,209 Iowa 646. It is quite clear, in view of the instruction given, that there was no error in receiving the declarations of the driver in evidence.
[5] In another instruction, the court told the jury that the defendant LaPrell admits that the defendant Born was in his employ and had his consent to drive said automobile according to certain specific directions, but that he contends that the defendant Born deviated from the scope of the authority granted him, and then instructed fully that there could be no recovery from LaPrell, unless Born at the time in question was driving the automobile within the scope of his employment, or within the express or implied directions of the employer. The appellant LaPrell complains of the giving of said instruction. He makes no complaint that the instruction does not state a correct rule of law, but complains because the court instructed at all upon the *Page 1146
relationship of employer and employee, the reason given being that plaintiff's action is based upon Section 5026, Code, 1927. The defendant, LaPrell, claimed by his testimony that Born at the time of the collision had deviated from the authority given him, and that, at that time, he was not acting within the scope of his employment. If he was acting within the scope of his employment, then he was driving the car with the owner's consent, and under the record as made by the defendants, it was quite proper for the court to give the jury the correct rule of law for the determination by them of the question as to whether or not Born was performing services within the scope of his employment and authority and thereby operating the automobile with the owner's consent. Under the record, it was for the jury to determine whether Born was acting within the scope of his employment and driving the car with the owner's consent. See Orris v. Tolerton Warfield Company, 201 Iowa, 1344.
[6] The appellants complain because the court in one of the instructions told the jury that the fact that the motorcycle officer was assisting the driver of the car to test the speedometer would not relieve the driver from the duty of exercising ordinary care, that is, such care as would have been exercised by a person of ordinary prudence and caution under the same or similar circumstances. There is no merit in this complaint. The standard required by the driver of an automobile is that of ordinary care, and the instruction did not lay any greater burden upon him.
[7] The appellants complain because the court, in one of the instructions, told the jury that the decedent and the driver of the car were entitled to an equal use of the street. Their exact contention is, that it was error to so instruct, because of the city ordinance, hereinbefore referred to, which provides that slowly moving vehicles should keep as close as possible to the right-hand curb, so as to allow more swiftly moving vehicles free passage to the left. They rely upon our pronouncement in Judd v. Rudolph, 207 Iowa 113, but said case is authority for the instructions which the court gave in the instant case. The validity of the ordinance is not called in question and in making our pronouncement, we assume, without deciding, that said ordinance is valid.
In the instruction complained of, the court told the jury *Page 1147
that both the decedent and the driver of the car "were entitled to an equal use of the street in question, but in their use thereof both were required to exercise ordinary care for the safety of the other, and to comply with the ordinances of the city of Dubuque, unless there was reasonable excuse for their failure so to do." In the following instruction, the court quoted the provisions of the ordinance and then added:
"You are further instructed that a violation of said city ordinance, without reasonable necessity therefor, constitutes negligence."
As hereinbefore stated, there was evidence from which the jury could properly find that the decedent, at the time in question, was not violating the provisions of the ordinance. It is a well recognized rule that the rights of all persons lawfully using a street or highway for travel are mutual and co-ordinate, and the operator of an automobile has no rights on the highway superior to those of others who are engaged in the lawful use of the same. There is no merit in appellant's contention at this point. See Turner v. Bennett, 161 Iowa 379; Simmons v. Lewis, 146 Iowa 316; House v. Cramer, 134 Iowa 374; Judd v. Rudolph, 207 Iowa 113.
In plaintiff's petition the amount for which recovery is sought, is itemized as follows:
"Value of services of Wilhelmina Ege as wife and mother .......................................... $5,000.00 Funeral expenses .................................. 448.00 Doctor bill ....................................... 43.00 Hospital expense .................................. 28.00 ---------- $5,519.00"
In stating the issues, in instruction Number 1, the court copies the aforesaid itemized statement from the petition. It will be noted that the funeral expenses are itemized at $448.00. The undertaker, without objection, testified as a witness, that the fair and reasonable value of the services for the burial is $447.95. No exception was taken to the instruction relative to the matters to be taken into consideration by the jury in fixing the amount of plaintiff's recovery, except for nursing or hospital care, hereinafter *Page 1148
referred to. No claim is made, that, because the decedent is a married woman, her estate is not liable for the funeral expenses. We have held that the estate of a married woman is primarily liable for her funeral expenses. See In re Estate of Skillman,146 Iowa 601. The court in the instructions given relative to funeral expenses limited the amount of the recovery therefor to what we said in our pronouncement in Brady v. Haw, 187 Iowa 501.
The decedent was a married woman living with her husband; she had only two children, one boy married, and another boy, thirty-one years of age, living at home. The appellants contend in argument, that it would be improper to allow recovery for the value of decedent's services "as a mother." Under Section 10463, Code, 1927, the administrator in an action of this kind is entitled to recover the value of the services as a wife or mother, or both. The exact contention of the defendants in argument, is, that, since in the instant case, the thirty-one year old son living at home is sui juris and not legally dependent upon the mother, and the other son is married and is maintaining a home of his own, there can be no recovery for the value of the services as a mother. We find it unnecessary to determine the proposition, for in the instruction relative to the matters for which plaintiff is entitled to recover, nothing is said about an allowance for value of services as a mother. The jury is presumed to have followed this instruction in fixing the amount of plaintiff's recovery. The matter now urged in argument is not raised by appropriate exception to the instruction given the jury as a rule in fixing the amount of plaintiff's recovery. The only exception which the appellants make relative to said instruction, except as to hospital expenses, is, that the court erred in his statement in the instruction that the total amount of their verdict should not be in excess of $5519.00. The amount of the verdict is only $3820.00. It is quite apparent, that there was no prejudicial error at this point.
[8] One of the content ions of the appellants is, that the court erred in the foregoing instruction in permitting a recovery for "the fair and reasonable value of hospital care for the said Wilhelmina Ege not to exceed the sum of $28.00," for the reason as claimed, that there is no competent evidence in the record to sustain it. It is shown by the record, that immediately after the *Page 1149
injury, Mrs. Ege was taken to the hospital where she remained for two days until the time of her death, and that an X-ray photograph was taken; nothing else is shown by the record as to the hospital care which was administered. During the trial, the husband of the decedent was shown a statement which was identified as an Exhibit, and he testified that the hospital sent it to him by mail, and that it is a bill for the hospital services rendered to Mrs. Ege. Over an appropriate objection, the said exhibit was offered and received in evidence. There is no evidence whatever as to the fair and reasonable value of the hospital care, or that the same has been paid. The Exhibit is not abstracted. The jury were authorized to allow for hospital care, not exceeding the amount claimed in the petition, without any evidence as to the fair and reasonable value thereof. In Scurlock v. City of Boone, 142 Iowa 684, we held that there can be a recovery for services rendered in nursing by unskilled persons, such as members of the family, without proof of the value thereof, but we therein said:
"Had Mrs. Scurlock (the plaintiff) received the care and attention of a professional or trained nurse whose compensation was fixed by usage, it is quite likely that evidence would be necessary to show the value thereof * * *."
In Lampman v. Bruning, 120 Iowa 167, a civil case for seduction, the evidence as to the doctor bill for obstetrical services was that of the plaintiff, who testified as to the amount of the bill and that it had not been paid. This court there said:
"But appellant (the defendant) says that `what the doctor charged does not furnish proof of what expense was reasonable.' Such items are rarely the subject of controversy in damage suits, and where the services rendered are of a nature likely to be familiar to the jury, and the charge unquestioned, its reasonableness may be safely left to their determination."
In Carnego v. Crescent Coal Company, 164 Iowa 552, the only evidence relative to a bill for funeral expenses was that given by the plaintiff's son, who testified that the amount was $529.25, which he (the witness) had paid with money furnished him by his father (the plaintiff). We there said: *Page 1150
"The evidence was admissible as tending to show that the expenses had been incurred and paid. Was it sufficient to establish the reasonableness of the cost? Had the various items making up these expenses and the cost of each been stated, there might have been room for the jury to infer therefrom the reasonable value thereof, and whether they were such as properly might be chargeable against defendant for the interment of a person in deceased's station in life. * * * The general statement of the cost of funeral expenses, in the absence of any other evidence, did not justify the submission of the reasonable expense thereof to the jury."
In Remington v. Machamer, 192 Iowa 1098, the controversy was over funeral expenses, but the administrator testified that he paid the bill in the amount of $344.00 and also the charges made for hospital services and nurse hire, and that he knew the fair and reasonable value for such services. It will be observed that in said case there was evidence of the very thing which is lacking in the instant case, and it was held that there was no error in admitting the evidence relative to such expenditure. In Hobbs v. City of Marion, 123 Iowa 726, it was held that an instruction which authorized the jury to take into consideration as one of the elements of damage, expenses for care and nursing, where the value of the services is not shown by the evidence is erroneous. This court there made the following pronouncement:
"Among other things the court said: `You may take into consideration * * * expense for care and nursing * * *.' It is objected to this that there is no evidence as to the expense incurred for care or nursing, nor of the value of the care or nursing given the plaintiff, * * * and that, in the absence of such evidence, the jury should not have been permitted to place its own estimate upon these items. An examination of the record forces us to the conclusion that this objection is well taken. While the evidence does tend to show * * * that plaintiff did receive the attention and care which her unfortunate condition required, we find nothing to show the value of such services, * * * the value of services * * * are matters concerning which, under ordinary circumstances, direct and competent evidence is available and without it they should not go to jury." *Page 1151
In Reutkemeier v. Nolte, 179 Iowa 342, a civil case for seduction, we said:
"No evidence was introduced to the effect that the amount so paid (for obstetrical services rendered by a doctor) was reasonable. It is urged, therefore, that there was no evidence of expense. Particular reliance is had by the appellant upon the case of Carnego v. Crescent Coal Co., 164 Iowa 552. It was held in that case that mere evidence of the payment of a lump sum of $529 for funeral expenses was not a sufficient showing that such amount was a reasonable expense. It was said in that case that, if the items and the cost of them had been disclosed, they might have furnished a sufficient basis for the jury to pass upon the reasonableness of the expense. It was also said therein, in recognition of our previous holdings, that, where the nature of the items of service is such that a jury would be likely to be familiar therewith, proof of payment is enough to carry the question of reasonableness to the jury. See Lampman v. Bruning,120 Iowa 167; Scurlock v. City of Boone, 142 Iowa 684.
"In the case at bar, it was made to appear that the doctor had been called out to the country home twice, and that one or more visits had been made to his office, previous to such time. There is nothing startling in the amount of the bill for the services thus rendered. Most people have some idea of the ordinary charges of a doctor to his patients. If an expert had testified to their value in this case, the jury would not have been bound by his testimony, under our repeated holdings. The services rendered were substantial and important, and there is nothing in the amount of the bill that tends to excite distrust of its reasonableness; and we think the case at this point comes well within our previous cases cited above."
In Arnold v. Fort Dodge, Des Moines Southern Railroad Company, 186 Iowa 538, we made the following pronouncement on this subject:
"The plaintiff was permitted by the instructions to recover his reasonable medical expense. The only testimony in the record on this subject is as follows: `Hospital bill about $200; * * * besides my carfare and expenses.' There was no attempt to show, either that these amounts represented reasonable value, *Page 1152
or that plaintiff had, in fact, paid such sums. * * * If the plaintiff had, in fact, paid these specified amounts, we should deem that fact presumptively sufficient. Dr. Bush, the plaintiff's physician, was one of his witnesses. He could have testified to the reasonable value of the services, and to the fact that the amount had or had not been paid by the plaintiff. Plaintiff himself could have testified to the latter fact. We are disposed to avoid undue technicality as to the method of proof upon such a question. Reutkemeier v. Nolte, 179 Iowa 342. But we think it would be undue liberality to permit items of this kind to be thrown into the record for the consideration of the jury, without any semblance of evidence of their correctness. And this is especially so where the record discloses that the evidence was readily available to the plaintiff, by the actual presence of the necessary witnesses at the trial. We think, therefore, that there was error at this point. Plaintiff may have the election to cure the same by remitting the amount of these two items."
What is said in the Arnold case is equally applicable to the instant case. What was the fair and reasonable value of the services could have been easily established by the doctor who was used as one of plaintiff's witnesses. If a properly itemized bill had been paid by the plaintiff, so as to create a sufficient presumption as to reasonableness as stated in the Arnold case, this fact could have been established by the mere asking of the question when the plaintiff was on the witness stand. It will be observed that our pronouncements, as noted by the foregoing quotations, are not in all instances harmonious. In Fowle v. Parsons, 160 Iowa 454, a doctor brought suit to recover the value of his professional services. He and another doctor testified as to the fair and reasonable value of the services performed and medicine furnished. There was no contradictory evidence and this court held that the value of the services was a question for the determination of the jury. The inquiry suggests itself: If the fair and reasonable value of the services becomes a question for the jury when the uncontradicted evidence tends to establish the reasonable value of the services, as claimed by the plaintiff, by what process of reasoning can it be proper to submit the question to the jury when there is no evidence as to the fair and reasonable value? It is true, that the jury is not obliged to rely wholly *Page 1153
upon the opinions of witnesses qualified to testify as to the value of such services and that in connection with such opinions, they may use and be guided by their own judgment in such matters. The jury cannot disregard the evidence and fix the value arbitrarily or in accordance with their own notion, but they should exercise their own judgment and knowledge in connection with the testimony. See Hoyt v. Chicago, Milwaukee St. Paul Railway Company, 117 Iowa 296. In the instant case, there is no evidence whatever as to the value of the hospital care. The burden is upon the plaintiff to establish all the elements necessary for recovery. How can it be said that the plaintiff has established the right to recover the amount claimed as the reasonable value for this service by a preponderance of the evidence when there is no such evidence, and when such evidence is available? We are, therefore, constrained to hold that that portion of the instruction which informed the jury that they could allow the fair and reasonable value of the hospital services not exceeding $28.00 is erroneous, for the reason that the record affords no competent evidence of such value. This, however, will not necessitate a reversal of the case, provided the plaintiff elects to cure the same by remitting said amount.
[9] The court gave a cautionary instruction, in which he told the jury that in making up their verdict, they should take into consideration only such evidence as has been submitted to them, or "lack of evidence, if any," and that without any prejudice against, or sympathy in favor of, either of the parties, "giving a careful examination and consideration to all of the facts and circumstances before you, and to the testimony of each witness such weight and credit as you believe it entitled to receive, and guided by the law as given you in these instructions, bring in such a verdict as your best judgment will approve, and such as will be warranted and sustained by the evidence." The appellants complain of this instruction and the words "or lack of evidence" is the target at which their complaint is aimed. There is no merit in this complaint. See State v. Patrick, 201 Iowa 368, at 372; Dahna v. Fun House Company, 204 Iowa 922; State v. Bamsey,208 Iowa 796, at 800. In State v. Patrick, 201 Iowa 368, at 372, we criticized a cautionary instruction which omitted the matters contained in the foregoing instruction. In Dahna v. Fun House Company, 204 Iowa 922, in referring to an instruction *Page 1154
identical with that in State v. Patrick, supra, we said that the instruction is unfortunate in its phraseology. In determining propositions of fact, the trier must necessarily consider the sufficiency and any insufficiency or lack of evidence in support thereof. If the trier of the facts determines that the evidence is not sufficient to establish a proposition of fact, it is because of insufficiency or lack of evidence. In the instant case, the trial court properly defined the term, preponderance of the evidence. He properly laid the burden upon the plaintiff to establish by a preponderance of the evidence all of the elements which are requisite to entitle the plaintiff to recover in a suit based on negligence. He properly told the jury in another instruction, that they are to consider and construe all of the instructions together, and apply them as a whole to the evidence in the case. It will be noted, that in the instruction under attack he told the jury to bring in such a verdict as is warranted and sustained by the evidence. Appellants' contention at this point is devoid of merit.
The appellants also complain that the verdict is excessive. There is nothing in the record to indicate that it is the result of passion or prejudice. The decedent was a lady 65 years of age, with an expectancy of 11.79 years. She was in good health, a hard working woman, performing the duties of housewife upon a little farm near the city of Dubuque — doing more than is usually done by a woman upon a farm. Under similar circumstances, we have permitted much larger verdicts to stand.
The remaining matters as to which complaint is made by the appellants relate to the rulings of the court on the introduction of evidence. We have carefully considered all of the same and find no prejudicial error.
The judgment of the trial court is affirmed, on condition that the plaintiff within thirty days from the date of the filing of this opinion, file with the clerk a remittitur of the sum of $28.00, being the amount claimed in the petition for hospital expense or care. Otherwise, the judgment shall stand reversed and the cause remanded for a new trial. — Affirmed, on Condition.
FAVILLE, C.J., and EVANS, STEVENS, ALBERT, MORLING, KINDIG, and GRIMM, JJ., concur. *Page 1155 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3210786/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-3296
____________
UNITED STATES OF AMERICA
v.
HARRISON MICHAEL RINEHOLT,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-14-cr-00314)
District Judge: Honorable Sylvia H. Rambo
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 17, 2016
Before: SMITH, HARDIMAN, and NYGAARD, Circuit Judges.
(Filed: May 24, 2016)
____________
OPINION*
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Harrison Rineholt appeals the District Court’s order imposing conditions of
supervised release following his guilty plea for failure to register as a convicted sex
offender. We will affirm.
I
On December 10, 2012, Rineholt was convicted of two counts of possession of
child pornography in York County, Pennsylvania. Although he registered as a sex
offender and completed the required updates from June 2013 through May 2014, Rineholt
failed to do so beginning in July 2014 when he fled to Mexico. In December 2014, a
grand jury in the United States District Court for the Middle District of Pennsylvania
indicted Rineholt on one count of failing to register as a sex offender from July 2014 to
December 2014, in violation of 18 U.S.C. § 2250(a). Rineholt surrendered to Mexican
authorities in March 2015 and was returned to the United States. A month later, Rineholt
pleaded guilty to the charge.
The District Court sentenced Rineholt to thirteen months in prison, followed by a
five-year term of supervised release. The Court also imposed seven special conditions of
supervised release, two of which are at issue in this appeal: (1) Rineholt was required to
participate in a sex offender treatment program at his own expense; and (2) other than
brief, unanticipated, and incidental contacts, he was prohibited from associating with
children under the age of 18, except for family members or children in the presence of an
2
adult approved by the probation officer. Rineholt objected to these conditions, arguing
that they were not reasonably related to his conviction. He also argued that the prohibition
on associating with children under the age of 18 was vague. On September 8, 2015, the
District Court filed an order formalizing the rulings it had made on the record at
sentencing. Rineholt appealed.1
II
We review the District Court’s order imposing special conditions of supervised
release for abuse of discretion. United States v. Maurer, 639 F.3d 72, 77 (3d Cir. 2011).
Under 18 U.S.C. § 3583(d)(1), a court may impose a special condition of supervised
release only if it is reasonably related to the familiar sentencing factors set forth in 18
U.S.C. § 3553(a). Special conditions of supervised release also must involve “no greater
deprivation of liberty than is reasonably necessary” to achieve the purposes set forth in
§ 3553(a)(2)(B)–(D). 18 U.S.C. § 3583(d)(2).
Rineholt argues that the condition requiring him to participate in sex offender
treatment does not reasonably relate to his history and characteristics, and violates
§ 3583(d)(2). Specifically, he argues that because neither his offense of conviction
(failure to register as a sex offender) nor his underlying state court conviction (possession
of child pornography) involved any physical sex abuse, no penological purpose is served
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
3
by sex offender treatment. We disagree. Rineholt’s failure to register as a sex offender,
his unauthorized eight-month stay in Mexico, and his failure to successfully complete sex
offender treatment while on state supervision demonstrate a refusal to abide by the
restrictions placed on him as a convicted sex offender and undermine efforts to protect
the public and prevent recidivism.
Moreover, sex offender treatment is related to Rineholt’s underlying state court
conviction for possession of child pornography, which is classified as a sex offense and
“contributes to the victimization of children and creates a market for child abuse.” United
States v. Miller, 594 F.3d 172, 189 (3d Cir. 2010) (internal quotation marks and citation
omitted). “In light of the nature and seriousness of the [possession of child pornography]
offense, there is a need to both deter others from similar crimes and to protect the public
from any further crimes. Sex offender treatment is reasonably related to these deterrent
and preventive goals.” Id. (internal quotation marks and citation omitted). The District
Court was well within its discretion to find that completing such treatment would protect
the public and deter crime.2
Rineholt also argues that the condition prohibiting him from associating with
children under the age of 18 is not reasonably related to the circumstances of his offense
2
To the extent that Rineholt argues that requiring him to undergo sex offender
treatment at his own expense was improper, we reject his argument. See, e.g., Miller, 594
F.3d at 189 (upholding nearly identical condition of supervised release requiring appellant
to participate in a sex offender treatment program at his own expense).
4
or his history, and involves a greater deprivation of liberty than is reasonably necessary.
Rineholt correctly notes that neither his offense of failing to register nor his state court
conviction involved inappropriate contact with minors. Nevertheless, he was convicted in
state court of possessing child pornography, which included 351 images and 118 videos
of children. These facts alone justify a condition limiting his contact with children. See
United States v. Loy, 237 F.3d 251, 269 (3d Cir. 2001).
Finally, he contends that this condition is overbroad because it restricts his
association with both male and female children, even though there is nothing in the record
indicating that he has a gender preference. Rineholt cites no authority to support his
argument that restricting his contact with minors must be tailored by gender. In any event,
we have upheld a nearly identical condition limiting contact with “children under the age
of 18 except for family members or children in the presence of an adult who has been
approved by the probation officer.” Miller, 594 F.3d at 189; see also Maurer, 639 F.3d at
76, 85 (upholding condition prohibiting “any contact with children of either sex, under
the age of 18, without the expressed approval of the U.S. Probation Office”); Loy, 237
F.3d at 267–68 (same).
III
For the foregoing reasons, we will affirm the District Court’s order.
5 | 01-03-2023 | 06-08-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3212020/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN BERNARD RUNNINGEAGLE, No. 07-99026
Petitioner-Appellant,
D.C. No.
v. CV-98-01903-PGR
CHARLES L. RYAN, Director,
Arizona Department of OPINION
Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted February 10, 2016
Pasadena, California
Filed June 10, 2016
Before: Harry Pregerson, Kim McLane Wardlaw,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Wardlaw
2 RUNNINGEAGLE V. RYAN
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial, on limited
remand, of claims of ineffective assistance of counsel brought
in a habeas corpus petition in a capital case.
The district court originally denied the ineffective
assistance claims as procedurally barred. On appeal, the
panel affirmed the district court’s denial of the habeas
petition but stayed the court of appeals’ mandate and ordered
a limited remand to allow the district court to reconsider its
prior rulings in light of Martinez v. Ryan, 132 S. Ct. 1309
(2012), which announced a new equitable rule allowing a
petitioner to show cause for the procedural default of certain
ineffective assistance claims. On limited remand, the district
court concluded that the petitioner did not show cause under
Martinez, and thus did not excuse the procedural default.
To show cause under Martinez, a petitioner must
demonstrate that the state system in which he initially brought
his ineffective assistance claims required that they be raised
in initial-review collateral proceedings, and did not permit the
petitioner to raise them on direct appeal. He must also show
that the attorney who represented him in post-conviction
review proceedings performed deficiently and thereby
prejudiced his case under the standards of Strickland v.
Washington.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RUNNINGEAGLE V. RYAN 3
The panel held that the district court erred in concluding
that Martinez was inapplicable because, at the time of the
petitioner’s direct appeal, Arizona allowed defendants to
bring ineffective assistance claims on direct appeal. The
panel concluded that in fact, during the relevant period,
Arizona did require petitioners to bring ineffective assistance
claims in initial-review collateral proceedings, not expressly,
but by virtue of the operation of its procedural system.
Nonetheless, the petitioner failed to show that his post-
conviction review counsel performed deficiently and to his
prejudice.
The panel affirmed the district court’s judgment and
order, and its continued denial of the habeas petition. The
panel lifted the stay of the mandate and ordered that it would
issue in the regular course.
COUNSEL
Jennifer Y. Garcia (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Arizona
Federal Public Defender’s Office, Phoenix, Arizona, for
Petitioner-Appellant.
Jon G. Anderson (argued), Assistant Attorney General,
Capital Litigation Section; Lacey Stover Gard, Chief
Counsel; Mark Brnovich, Attorney General; Arizona
Attorney General’s Office, Phoenix, Arizona, for
Respondent-Appellee.
4 RUNNINGEAGLE V. RYAN
OPINION
WARDLAW, Circuit Judge:
In 1988, petitioner Sean Bernard Runningeagle was
convicted of two counts of first degree murder in Arizona
state court. He was sentenced to death in 1989, and the
Arizona Supreme Court affirmed his conviction, sentence,
and the denial of his state petition for post-conviction relief.
State v. Runningeagle (Runningeagle I), 859 P.2d 169 (Ariz.
1993). Runningeagle then petitioned for a federal writ of
habeas corpus, which the district court denied. In 2012, while
Runningeagle’s appeal of that decision was pending before
us, the Supreme Court decided Martinez v. Ryan, 132 S. Ct.
1309 (2012). Martinez announced a new equitable rule that
allows a petitioner to show cause for the procedural default of
certain ineffective assistance of counsel (“IAC”) claims. We
affirmed the district court’s denial of Runningeagle’s petition,
but also stayed the mandate and ordered a limited remand to
allow the district court to reconsider its prior rulings that
several of Runningeagle’s IAC claims were procedurally
defaulted in light of Martinez. Runningeagle v. Ryan
(Runningeagle II), 686 F.3d 758 (9th Cir. 2012). On remand,
the district court concluded that Runningeagle did not show
cause under Martinez, and thus did not excuse the procedural
default of the IAC claims. Runningeagle appeals.
To show cause under Martinez, a petitioner must
demonstrate, inter alia, that the state system in which he
initially brought his IAC claims required that they be raised
in initial-review collateral proceedings, and did not permit the
petitioner to raise them on direct appeal. He must also show
that the attorney who represented him in post-conviction
review (“PCR”) proceedings performed deficiently and
RUNNINGEAGLE V. RYAN 5
thereby prejudiced his case under the standards of Strickland
v. Washington, 466 U.S. 668 (1984).
We hold that the district court erred in concluding that
Martinez was inapplicable because, at the time of
Runningeagle’s direct appeal, Arizona allowed defendants to
bring IAC claims on direct appeal. To the contrary: during
the relevant period, Arizona actually did require petitioners
to bring IAC claims in initial-review collateral proceedings,
not expressly, but by virtue of the operation of its procedural
system. See Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013).
The proceedings in this very case demonstrate the operation
of Arizona’s requirement. However, Runningeagle fails to
show that his PCR counsel performed deficiently and to his
prejudice. His IAC claims therefore remain in procedural
default, and do not serve as a basis for federal habeas relief.
We affirm the district court’s denial of the petition.
I. Factual Background
We again1 take the facts as recited by the Arizona
Supreme Court in its 1993 opinion:
In the early morning of December 6, 1987,
Runningeagle, [his cousin Corey] Tilden, and
their two friends Orva and Milford Antone,
were driving around Phoenix. Runningeagle
wanted parts for his car, so the foursome
stopped at the Davis house, which had a car
parked outside. Runningeagle, Tilden and
Orva got out of the car, while Milford
1
Runningeagle II, 686 F.3d at 763–64 (quoting Runningeagle I,
859 P.2d at 171–72); see also id. at 763 n.1.
6 RUNNINGEAGLE V. RYAN
remained passed out drunk in the back seat.
Runningeagle used his large hunting knife to
remove two carburetors from the Davis car.
Orva put them and an air scoop in the trunk of
Runningeagle’s car. Tilden and Runningeagle
also stole a floor jack and tool box. Orva took
a bicycle from the open garage.
Herbert and Jacqueline Williams, an elderly
couple, lived next door to the Davises. Mr.
Williams came out of his house and told the
young men to leave or he would call the
police. Orva returned to the car, but
Runningeagle and Tilden approached Mr.
Williams. Runningeagle concealed his knife
by his side. Tilden carried a large, black
flashlight. Runningeagle then began to tease
and scare Mr. Williams with the knife. Mr.
Williams retreated and told Runningeagle to
put the knife away. Mrs. Williams then came
out of the house and yelled at them. Tilden
confronted Mrs. Williams, argued with her,
and then hit her on the side of the head with
the flashlight. Mr. Williams told them to
leave his wife alone, and helped her back into
the house. Runningeagle broke through the
Williams’ door with a tire iron, and he and
Tilden barged in.
The noise awakened a neighbor, who heard
Mrs. Williams crying and the words “bring
him in” spoken by a tall, young man he saw
standing in the Williams carport. The
neighbor called “911,” but by the time the
RUNNINGEAGLE V. RYAN 7
police arrived, Mr. and Mrs. Williams were
dead. Mr. Williams suffered several head
injuries and five stab wounds, three of which
were fatal. Mrs. Williams also suffered
several head injuries, one of which fractured
her skull and was possibly fatal, in addition to
four stab wounds, three of which were fatal.
The police searched the Williams home. The
drawer in which Mrs. Williams stored her
jewelry was open and some jewelry was
missing. They found an empty purse, blood
drops and two bloody shoe print patterns.
They discovered Runningeagle’s palm print
on the clothes dryer next to the bodies.
Runningeagle discussed the crimes on several
occasions before his arrest. He told his
girlfriend that he had been in a fight with two
people and had hit them “full-force.” He
showed her his car trunk full of the stolen
property. He showed the hood scoop and
carburetors to another friend. Tilden, too,
spoke about the crimes and informed
Runningeagle that an account of the burglary
was on the radio and that “they got there an
hour after we left.”
When the defendants were arrested, the police
found, among other things, the Davis air
scoop with Runningeagle’s prints on it, two
carburetors, the tool box, Mrs. Williams’
wallet and college pin, a large black flashlight
with Tilden’s prints on it, and the Davis
8 RUNNINGEAGLE V. RYAN
bicycle with Runningeagle’s prints on the
wheel rim. A Phoenix Police Department
criminalist matched Runningeagle’s shoes
with the bloody shoe prints found at the
Williams house, and also found that an inked
print of Tilden’s shoes made a pattern similar
to other shoe prints at the house.
Runningeagle, Tilden, and Orva Antone were
indicted on two counts of first degree murder,
and one count each of first degree burglary of
a residence, second degree burglary of a
residence, third degree burglary of a car, theft
of property valued between $500 and $1000,
and theft of property valued between $250
and $500. Orva Antone pleaded guilty to
burglary and testified for the state at the joint
trial.
After a five-week trial, Runningeagle and
Tilden were convicted on July 27, 1988.
Runningeagle was found guilty of two counts
of first degree murder, two counts of theft,
and one count each of first degree burglary,
second degree burglary, and third degree
burglary. Tilden was convicted of the same
charges except for third degree burglary.
Runningeagle I, 859 P.2d at 171–72.
RUNNINGEAGLE V. RYAN 9
II. Procedural Background
A. Sentencing and Special Verdict
Baltazar Iniguez was appointed to represent Runningeagle
at trial and sentencing. Iniguez gathered a total of 15 letters
from Runningeagle’s family members and acquaintances,
which he submitted as mitigation evidence. Iniguez also
presented the direct testimony of several witnesses on
Runningeagle’s behalf at evidentiary hearings, and he
examined or cross-examined several of Tilden’s witnesses,
who were Runningeagle’s family members or acquaintances,
at these hearings.2
Arizona probation officers prepared two presentence
reports (“PSRs”) concerning Runningeagle, which contained
information about his family and social background, criminal
history, health, and use of alcohol and illicit substances.
These reports quoted Iniguez, who vouched for
Runningeagle’s good character, stated that the murders were
fueled by alcohol, and recommended leniency. It does not
appear from the record that Iniguez gathered outside
information for the probation officers or disputed the
accuracy of the PSRs.
Iniguez successfully petitioned the court under Arizona
Rule of Criminal Procedure 26.5 for two mental health
2
At the first of these hearings, Runningeagle sought the appointment of
new counsel, and stated that Iniguez was “ineffective and inefficient.”
Iniguez moved to withdraw, citing the “barrier” between himself and his
client, and Runningeagle’s lack of cooperation. The court denied these
requests, and stated that Runningeagle would “have an opportunity to raise
all of these allegations by way of Petition for Post-Conviction Relief.”
10 RUNNINGEAGLE V. RYAN
examinations of Runningeagle. These examinations were
conducted by Doctors M.B. Bayless and Francis A. Enos. Dr.
Bayless diagnosed Runningeagle with antisocial personality
disorder, and Dr. Enos found that his behavioral pattern was
“sociopathic rather than neurotic or psychotic.” Because
Iniguez had requested these examinations under Rule
26.5—against the advice of Tilden’s attorney, Roland J.
Steinle III, who had recommended requesting court funds for
private examinations3—Iniguez’s attempts to exclude Dr.
Bayless’s and Dr. Enos’s reports were unsuccessful, and he
was required to file them with the court.
Before the final sentencing hearing, Iniguez submitted an
eight-page sentencing memorandum. Iniguez argued that
Runningeagle should be spared the death penalty, and should
instead receive two concurrent life sentences. Iniguez
contended that Runningeagle’s mind was impaired by
alcoholic “jungle juice” at the time of the murders; there was
insufficient evidence that Runningeagle, rather than Tilden,
committed the murders; and the murders were out of
character. Iniguez also sought to rebut the anticipated
aggravating factors relied upon by the state. He argued the
killings were not “cruel, heinous and depraved,” there was no
evidence of an expectation of pecuniary gain, and they should
not be considered two separate killings because both occurred
3
Arizona Rule of Criminal Procedure 26.5 provided, “At any time
before sentence is pronounced, the court may order the defendant to
undergo mental health examination or diagnostic evaluation. Reports
under this section shall be due at the same time as the pre-sentence report
unless the court orders otherwise.” According to Steinle, Arizona courts
construed this rule to generally require disclosure of reports for use at
sentencing. Thus, if a Rule 26.5 report contained negative information,
there was no way to prevent the sentencing judge from considering that
information.
RUNNINGEAGLE V. RYAN 11
within a “very short period of time,” that is, that each murder
was committed during the commission of the other. Finally,
Iniguez claimed three mitigating factors were present:
Runningeagle was young, intoxicated, and “under unusual or
substantial duress.” Iniguez did not present new evidence in
support of the memorandum, and relied instead on the PSRs
and trial testimony and evidence.
Runningeagle and Tilden were jointly sentenced at a
February 3, 1989 hearing. The court issued a special verdict,
from which it read at the hearing, sentencing Runningeagle to
death and Tilden to two consecutive terms of life
imprisonment. In imposing Runningeagle’s sentence, the
court found that the state had proved three statutory
aggravating circumstances: that the murders were committed
with the expectation of pecuniary gain; that they were
“especially cruel, heinous and depraved”; and that
Runningeagle was convicted of one or more homicides during
the commission of the offense. See Ariz. Rev. Stat. § 13-
703(F)(5), (6), (8) (1988). Upon considering the evidence
submitted by Iniguez, the court found that the only mitigating
circumstance for the murder counts was Runningeagle’s age,
“one day short of 19,” which was not sufficient to call for
leniency.4 The court found that the testimony and letters from
Runningeagle’s family and friends did not compel mitigation.
The court stated that Runningeagle had not shown any feeling
for family or friends, that he was concerned only with
“himself and his own appetites,” and that the psychological
reports indicated that he did not “have the types of feelings or
emotions that people usually have for family or friends.”
4
The court found that Runningeagle’s burglary and theft counts, but not
the murder counts, were mitigated by a “[h]istory of family problems
although not overly severe.”
12 RUNNINGEAGLE V. RYAN
Although the court quoted at length from the Bayless and
Enos reports at the sentencing hearing, and also considered a
psychological report prepared by Doctor Roger M. Martig for
prior Juvenile Court proceedings, the court stated that it did
not consider these as aggravating circumstances, but neither
did it find that they weighed in favor of mitigation.
In sparing Tilden death, the court found “significant and
considerable differences” between him and Runningeagle.
The court found that the state had not proved beyond a
reasonable doubt that Tilden participated in the murders with
the expectation of pecuniary gain, though the other two
aggravating factors were present. The court noted that Tilden
had a difficult childhood, but it did not expressly give weight
to this circumstance. It found that psychological evidence
that Tilden suffered from a personality disorder was not, in
itself, a mitigating circumstance. The court found highly
significant the great weight of the evidence suggesting that
Runningeagle, and not Tilden, had personally inflicted the
fatal stab wounds. The court concluded that Tilden had
followed his charismatic, older, more intelligent cousin on the
night of the murders, and that Tilden, unlike Runningeagle,
had a conscience and was capable of rehabilitation. The court
stated, however, that “these comparisons were not used in
aggravation of defendant Runningeagle’s sentence.”
B. PCR and Appellate Proceedings
Following sentencing, Runningeagle commenced PCR
proceedings pro se by filing a form petition for post-
conviction relief and a petition for writ of coram nobis. The
coram nobis petition alleged that Iniguez had failed to
perform an adequate investigation, mount an effective
defense, or object to inadmissible evidence and prosecutorial
RUNNINGEAGLE V. RYAN 13
misconduct. On March 23, 1990, John M. Antieau was
appointed to represent Runningeagle in the PCR and appellate
proceedings.5 The Arizona Supreme Court stayed
Runningeagle’s direct appeal pending determination of his
PCR petition. The same judge who had presided over trial
and sentencing also presided over the initial PCR
proceedings.
Over the government’s objection, the PCR court granted
Antieau’s motion for the appointment of an investigator,
Mary Durand, and a mental health expert, Doctor Otto
Bendheim. Antieau filed a supplemental petition challenging
Runningeagle’s sentence on eleven grounds, including two
IAC claims for failure to move to sever Runningeagle’s trial
from Tilden’s, and for a deficient closing argument. Antieau
also filed a second supplemental petition in which he
challenged Dr. Bayless’s and Dr. Enos’s diagnoses of
antisocial personality disorder, and requested $1500 in
additional funds so a new doctor, Bendheim, could interview
Runningeagle in prison.
On April 23, 1991, the PCR court summarily dismissed
Runningeagle’s petitions. It found that, in his initial pro se
petition, Runningeagle had not raised a “‘colorable claim’ . . .
of ineffective assistance of trial counsel,” and that even if his
complaints were valid, the evidence against him was
overwhelming, and the result would not have been different.
The court found that the claims raised in the supplemental
petitions filed by Antieau were “still raisable on direct
appeal.” It denied the request for additional funding for Dr.
Bendheim to prepare a report, which the court viewed as “not
5
Antieau was appointed after Runningeagle successfully sought the
removal of another appointed PCR and appellate counsel.
14 RUNNINGEAGLE V. RYAN
appropriate in the context of post-conviction relief
proceedings.” In addressing this issue, the court opined that
Runningeagle appeared to “take[]one aspect of the Court’s
sentencing as if it were the only basis for the Court’s
determination of the appropriate and lawful sentence.” The
court denied a motion for rehearing filed by Antieau.
Antieau petitioned the Arizona Supreme Court for review
of the PCR court’s denial of relief. This petition was
consolidated with Runningeagle’s direct appeal, which was
also filed by Antieau. On April 20, 1993, the Arizona
Supreme Court affirmed Runningeagle’s conviction and
sentence and the denial of his PCR petition. It reasoned that,
“[b]ecause Runningeagle failed to show that counsel’s
conduct was deficient, the trial court properly dismissed his
petition for post-conviction relief.”
C. Subsequent Proceedings
After the United States Supreme Court denied certiorari
and the Arizona Supreme Court issued its mandate,
Runningeagle initiated pro se a second PCR proceeding,
which was ultimately dismissed because he failed to timely
file a petition. Runningeagle next filed a federal habeas
petition, which was dismissed without prejudice to allow him
to exhaust additional claims in state court.
Runningeagle then initiated a third PCR proceeding in the
Arizona Superior Court: this was the state proceeding in
which the claims raised on this appeal were found
procedurally defaulted. In a 224-page petition filed by a new
attorney, Runningeagle claimed, inter alia, that Iniguez had
performed deficiently by failing to (i) investigate and present
key mitigation evidence; (ii) obtain a competent and
RUNNINGEAGLE V. RYAN 15
independent mental status examination; (iii) develop and
advance a theory that Tilden actually committed the
homicides; and (iv) request the appointment of a second
attorney. On October 21, 1996, the Superior Court dismissed
Runningeagle’s claims and the petition. It held that, even if
the mitigation-evidence claims were “colorable,” they were
procedurally defaulted under Arizona Rule of Criminal
Procedure 32.2(a)(3), and the inculpation and second-counsel
claims were in default and, alternatively, not colorable.6 The
Arizona Supreme Court denied Runningeagle’s petition for
review of these rulings.
On April 15, 1999, Runningeagle filed the amended
federal habeas petition now before us. He raised, among
others, claims that Iniguez was ineffective because he failed
to retain, use, and competently prepare independent mental
health experts, or investigate and present mitigating evidence
at sentencing (“mitigation-evidence IAC claim”), inculpate
Tilden (“inculpation IAC claim”), and request a second
counsel (“second-counsel IAC claim”). On February 6, 2004
6
Runningeagle also claimed that Antieau was constitutionally
ineffective on appeal and in PCR proceedings. The Arizona Superior
Court found this claim precluded, and alternatively dismissed it on the
merits. We reject, however, the government’s suggestion that this
alternative merits ruling is entitled to AEDPA deference. Runningeagle
does not on this appeal seek to relitigate a “claim” regarding PCR
counsel’s performance on which basis his habeas petition could be
“granted” (nor could he under current Supreme Court precedent). See
28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98 (2011).
Rather, he seeks to show cause for the procedural default of underlying
trial-level IAC claims on the basis of PCR counsel’s allegedly deficient
performance. The Superior Court’s ruling cannot possibly be construed
to address this issue, as the equitable rule of Martinez had not yet been
announced in 1996.
16 RUNNINGEAGLE V. RYAN
and March 10, 2006, the district court issued interim orders
finding each of these claims procedurally defaulted.
The district court denied Runningeagle’s remaining
claims on the merits, and we granted his request for a
certificate of appealability as to several of these claims. The
Supreme Court decided Martinez on March 20, 2012. On
July 18, 2012, we filed our opinion affirming the district
court’s rulings on the merits of the claims presented on
appeal. Also on July 18, 2012, we granted Runningeagle’s
motion for remand to the district court “for the limited
purpose of reconsidering its procedural default holdings on
Runningeagle’s ineffective assistance of counsel claims . . .
in light of Martinez v. Ryan.”7 On limited remand, the district
court expanded the record and denied Runningeagle’s request
for a further evidentiary hearing. On October 2, 2014, the
district court entered an order holding that Runningeagle had
not shown cause under Martinez for the procedural default of
the mitigation-evidence, inculpation, and second-counsel IAC
claims, leaving them in default.
III. Standard of Review
We review de novo the district court’s dismissal of a
habeas petition and its procedural default determinations.
Sexton v. Cozner, 679 F.3d 1150, 1153 (9th Cir. 2012).
Runningeagle filed his amended federal petition after the
7
By granting this motion, we rejected the government’s argument that
Runningeagle had abandoned any request for relief based on ineffective
assistance of PCR counsel. We similarly reject the government’s
suggestion that we reconsider this ruling. Cf. Ball v. Rodgers, 492 F.3d
1094, 1102 (9th Cir. 2007) (discussing the “exception to the waiver rule
. . . for intervening changes in the law”) (ellipsis in original) (citation
omitted); 9th Cir. R. 27-10(a)(3).
RUNNINGEAGLE V. RYAN 17
effective date of the Antiterrorism and Effective Dealth
Penalty Act of 1996 (AEDPA). Runningeagle II, 686 F.3d at
766. Therefore, any claim that was adjudicated on the merits
in state court is reviewed under the “highly deferential
standards” of AEDPA. Davis v. Ayala, 135 S. Ct. 2187, 2198
(2015); see 28 U.S.C. § 2254(d). Any federally reviewable
claim that was not adjudicated on the merits in state court is
reviewed de novo. See Cone v. Bell, 556 U.S. 449, 472
(2009).
IV. Discussion
A. The Legal Framework of Martinez.
Federal courts generally cannot grant habeas relief for a
claim defaulted in state court “pursuant to an independent and
adequate state procedural rule . . . unless the prisoner can
demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991).8 The constitutionally
ineffective performance of counsel, which is “imputed to the
State,” may provide cause, but there is no general
constitutional right to an attorney in PCR proceedings. Id. at
752–54. The Supreme Court in Coleman left unanswered the
question of whether and under what circumstances there may
be a constitutional right to counsel where “state collateral
review is the first place a prisoner can present a challenge to
his conviction.” Id. at 755.
8
Procedural default may also be excused where “failure to consider the
claim[] will result in a fundamental miscarriage of justice.” Coleman,
501 U.S. at 750. Runningeagle does not argue that this exception applies.
18 RUNNINGEAGLE V. RYAN
Without answering that question, the Martinez Court held
that cause may be established for a prisoner’s procedural
default of a claim of ineffective assistance at trial by
“[i]nadequate assistance of counsel at initial-review collateral
proceedings,” i.e., “collateral proceedings which provide the
first occasion to raise a claim of ineffective assistance of at
trial.” 132 S. Ct. at 1315. Martinez stated that this “narrow
exception” to Coleman was an “equitable” one, necessary
because:
When an attorney errs in initial-review
collateral proceedings, it is likely that no state
court at any level will hear the prisoner’s
claim. . . . And if counsel’s errors in an
initial-review collateral proceeding do not
establish cause to excuse the procedural
default in a federal habeas proceeding, no
court will review the prisoner’s claims.
....
Without the help of an adequate attorney, a
prisoner will have . . . difficulties vindicating
a substantial ineffective-assistance-of-trial-
counsel claim. Claims of ineffective
assistance at trial often require investigative
work and an understanding of trial strategy.
When the issue cannot be raised on direct
review, moreover, a prisoner asserting an
ineffective-assistance-of-trial-counsel claim in
an initial-review collateral proceeding cannot
rely on a court opinion or the prior work of an
attorney addressing that claim. To present a
claim of ineffective assistance at trial in
RUNNINGEAGLE V. RYAN 19
accordance with the State’s procedures, then,
a prisoner likely needs an effective attorney.
Id. at 1315–18 (citations omitted). In Trevino v. Thaler,
133 S. Ct. 1911 (2013), the Supreme Court summarized the
four-part test announced in Martinez:
Coleman [contains] an exception, allowing a
federal habeas court to find “cause,” thereby
excusing a defendant’s procedural default,
where (1) the claim of “ineffective assistance
of trial counsel” was a “substantial” claim;
(2) the “cause” consisted of there being “no
counsel” or only “ineffective” counsel during
the state collateral review proceeding; (3) the
state collateral review proceeding was the
“initial” review proceeding in respect to
the “ineffective-assistance-of-trial-counsel
claim”; and (4) state law requires that an
“ineffective assistance of trial counsel [claim]
. . . be raised in an initial-review collateral
proceeding.”
Id. at 1918 (second and third alterations in original) (citing
Martinez, 132 S. Ct. at 1318–19, 1320–21).
The government does not dispute that the third Martinez
requirement is satisfied: Runningeagle seeks to show cause
based on Antieau’s supposedly deficient representation
during his initial PCR proceeding. We address the remaining
requirements in turn.
20 RUNNINGEAGLE V. RYAN
B. Arizona Law Required Prisoners to Raise IAC Claims in
Initial-Review Collateral Proceedings During the
Relevant Time Period.
We consider at the outset what Arizona law required to
assert an IAC claim at the time Runningeagle brought his
appeal and first petition for post-conviction relief. This is an
appropriate place to begin, because however deficient or
prejudicial the performance of trial or PCR counsel, cause
may be shown under Martinez only if, “under state law,
claims of ineffective assistance of trial counsel must be raised
in an initial-review collateral proceeding.” 132 S. Ct. at
1320. The Supreme Court explained in Trevino that this
requirement could be satisfied where state law did not
explicitly require petitioners to assert IAC claims in initial-
review collateral proceedings, but “[t]he structure and design
of the [state] system in actual operation . . . make it virtually
impossible for an ineffective assistance claim to be presented
on direct review.” 133 S. Ct. at 1915 (citation omitted).
The district court held that, at the time Runningeagle
brought his appeal and first petition for post-conviction relief,
Arizona law provided for direct appellate review of IAC
claims. The district court found that Runningeagle, through
Antieau, in fact raised IAC claims in the PCR proceeding,
“and then consolidated those claims with the other issues
raised on appeal.” It concluded that this consolidation
procedure was the functional equivalent of “providing direct
appellate review of ineffectiveness claims.” Accordingly, the
district court held that the procedural default of
Runningeagle’s claims could not be excused under Martinez.
Arizona did not expressly require IAC claims to be raised
in collateral proceedings until 2002, when the Arizona
RUNNINGEAGLE V. RYAN 21
Supreme Court decided State v. Spreitz, 39 P.3d 525 (Ariz.
2002).9 Runningeagle filed his supplemental PCR petition
and appeal in 1990 and 1991, respectively, before Spreitz
became law. However, at this time, the “structure and
design” of Arizona law as set forth by the Arizona Supreme
Court made the meaningful presentation of an IAC claim on
direct review “virtually impossible.” See Trevino, 133 S. Ct.
at 1915 (citation omitted).
In State v. Valdez, 770 P.2d 313 (Ariz. 1989), the Arizona
Supreme Court strongly urged defendants to raise IAC claims
in petitions brought under Arizona Rule of Criminal
Procedure 32, which governs PCR proceedings. Id. at 319.
The Court stated that it was “reluctant” to decide IAC claims
without the benefit of an evidentiary record that could not be
developed in direct appellate proceedings. Id. at 318. The
Court set forth its recommended procedure: “[a]s a general
matter,” a defendant who seeks to raise an IAC claim during
the pendency of his direct appeal “should file the proper
petition under Rule 32 . . . in the trial court and seek an order
from the appellate court suspending the appeal.” Id. at 319.
The trial court could then make an evidentiary record and
issue its ruling, and after that, the defendant could move for
consolidation of the post-conviction proceedings and the
direct appeal.10 Id. The Arizona court system followed the
9
Martinez, which was also brought by a petitioner in the custody of the
State of Arizona, cited Spreitz for the proposition that “Arizona law . . .
did not permit [Martinez’s appellate counsel] to argue on direct appeal that
trial counsel was ineffective.” Martinez, 132 S. Ct. at 1314.
10
In Krone v. Hotham, 890 P.2d 1149 (Ariz. 1995), which was decided
after Runningeagle filed his first PCR petition and appeal, the Arizona
Supreme Court retreated from the Valdez procedure of staying appeals
pending the resolution of Rule 32 proceedings. Krone stated that this
22 RUNNINGEAGLE V. RYAN
Valdez procedure when it decided Runningeagle’s claims:
Antieau raised IAC claims in a Rule 32 proceeding, and the
Arizona Supreme Court stayed his direct appeal pending that
proceeding, and then consolidated them for appellate review.
In State v. Carver, 771 P.2d 1382 (Ariz. 1989), which was
decided shortly after Valdez, the Arizona Supreme Court
held: “We will not reverse a conviction on ineffective
assistance of counsel grounds on direct appeal absent a
separate evidentiary hearing concerning counsel’s actions or
inactions. Only where we may clearly determine from the
record that the ineffective assistance claim is meritless will
we elect to consider the issue on direct appeal.” Id. at 1390.11
Valdez and Carver rendered it all but futile for an Arizona
criminal defendant to raise an IAC claim on direct appeal.12
At best, he would be required to raise it again by Rule 32
petition. At worst, the claim would be deemed clearly
meritless and denied without any further development of the
record. As in Trevino, there is no principled reason why
procedure had “proved unworkable and resulted in long delays,” and
thereafter would be followed only in “the most exceptional
circumstances.” Id. at 1151–52.
11
Carver’s holding was reiterated in State v. Atwood, 832 P.2d 593, 616
(Ariz. 1992), which was decided after Runningeagle brought his appeal
and first petition for post-conviction relief, and before the Arizona
Supreme Court affirmed Runningeagle’s conviction and sentence and the
denial of his PCR petition.
12
We express no opinion as to whether, before Valdez and Carver were
decided, Arizona law effectively required petitioners to bring IAC claims
in initial-review collateral proceedings. Cf. Lambright v. Stewart,
241 F.3d 1201, 1203 (9th Cir. 2001) (stating that, as of 1984, no Arizona
case required IAC claims to be brought on direct appeal).
RUNNINGEAGLE V. RYAN 23
federal law should “deny defendants the benefit of Martinez
solely because of the existence of a theoretically available
procedure, namely direct appellate review,” which is
“difficult, and in the typical case all but impossible, to use
successfully, and which [Arizona] courts so strongly
discourage defendants from using.” 133 S. Ct. at 1920.
The district court found that Trevino did not apply
because the Valdez procedure of staying the direct appeal and
consolidating it with the Rule 32 proceeding in effect
provided “direct appellate review of ineffectiveness claims.”
However, this consolidation was merely ministerial. Under
Valdez, direct appeals and Rule 32 petitions remained on
separate tracks, though they ultimately converged at the same
station. Crucially, that convergence would occur after PCR
counsel had raised the issues for review and developed the
evidentiary record before the PCR court. The Arizona
appellate court would concurrently review the direct appeal
and the denial of the PCR petition, as it did in this case, but
this is not the same as reviewing the petition in the first
instance. See Runningeagle I, 859 P.2d at 171. Martinez
makes clear that an appeal from an initial-review collateral
proceeding is distinct from the initial-review collateral
proceeding itself; the equitable excuse applies only to the
latter. 132 S. Ct. at 1320.
Consolidation did not alter the result that, by “structure
and design,” the Arizona system in actual operation made it
“‘virtually impossible’ for an ineffective assistance claim to
be presented on direct review.” Trevino, 133 S. Ct. at 1915
(citation omitted). The Arizona system therefore posed the
grave risk with which Martinez is concerned: that PCR
counsel would fail to raise or develop substantial trial-level
IAC claims, and, because PCR counsel’s performance is not
24 RUNNINGEAGLE V. RYAN
constitutionally reviewable, any deficiency in this regard
would result in “no court . . . review[ing] the prisoner’s
claims.” Martinez, 132 S. Ct. at 1316. The equitable rules of
Martinez and Trevino prevent this inequitable result.
Thus, during the period Runningeagle was litigating his
direct appeal and Rule 32 petition, Arizona law in effect
required the assertion of IAC claims in the initial-review
collateral proceeding. The district court erred in holding
otherwise.
C. Runningeagle Fails to Demonstrate the Prejudicial
Default of a Substantial IAC Claim in PCR Proceedings.
Where, as here, the state criminal justice system satisfies
the characteristics required by Martinez, the petitioner must
make two related showings about the strength of his
particular IAC claim to excuse its default.
First, the IAC claim must be “a substantial one, which is
to say that the prisoner must demonstrate that the claim has
some merit.” Martinez, 132 S. Ct. at 1318. Thus, there must
be a substantial showing of a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” See Strickland v.
Washington, 466 U.S. 668, 694 (1984). “A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Id. “When a defendant challenges a death
sentence such as the one at issue in this case, the question is
whether there is a reasonable probability that, absent the
errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695.
RUNNINGEAGLE V. RYAN 25
Second, a petitioner must show that “appointed counsel
in the initial-review collateral proceeding, where the claim
should have been raised, was ineffective under the standards
of Strickland v. Washington.” Martinez, 132 S. Ct. at 1318.
Construing Martinez, we have held that, to fulfill this
requirement, a petitioner must show not only that PCR
counsel performed deficiently, but also that this prejudiced
the petitioner, i.e., that “there was a reasonable probability
that, absent the deficient performance, the result of the post-
conviction proceedings would have been different.” Pizzuto
v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015) (quoting
Clabourne v. Ryan, 745 F.3d 362, 367 (9th Cir.), proceedings
suspended and mandate stayed (Apr. 2, 2014), and overruled
on other grounds by McKinney v. Ryan, 813 F.3d 798, 818
(9th Cir. 2015) (en banc)). Although the prejudice at issue is
that in PCR proceedings, this is a recursive standard. It
requires the reviewing court to assess trial counsel’s as well
as PCR counsel’s performance. This is because, for us to find
a reasonable probability that PCR counsel prejudiced a
petitioner by failing to raise a trial-level IAC claim, we must
also find a reasonable probability that the trial-level IAC
claim would have succeeded had it been raised.13
13
Runningeagle criticizes the Clabourne and Pizzuto framework for
assessing prejudice, which he contends is inconsistent with Martinez and
our en banc opinion in Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014).
He argues that this framework is “impossible-to-meet,” in that it requires
a petitioner to “prove the merits of his ineffective assistance claim before
any evidentiary development of the defaulted, undecided claim just to
clear the cause-and-prejudice hurdle to excuse the claim’s procedural
default.” See Detrich v. Ryan, 740 F.3d 1237, 1245–46 (9th Cir. 2013) (en
banc) (plurality opinion) (stating that a prisoner “need not show actual
prejudice resulting from his PCR counsel’s deficient performance, over
and above his required showing that the trial-counsel IAC claim [is]
‘substantial’ under the first Martinez requirement”).
26 RUNNINGEAGLE V. RYAN
None of Runningeagle’s procedurally defaulted IAC
claims satisfies both the substantiality and deficient
performance criteria. Therefore, the procedural default of
these claims is unexcused.
1. The Mitigation-Evidence IAC Claim
We assume, for discussion purposes only, that the
mitigation-evidence IAC claim, Runningeagle’s strongest
claim, is a “substantial” one, and therefore that there is “some
merit” to the contention that Iniguez performed deficiently
and to Runningeagle’s prejudice at sentencing.14
We decline to revisit the Clabourne/Pizzuto standard. Assuming
“substantial” claims and deficient performance of PCR counsel,
Runningeagle could not ultimately obtain relief even under his preferred
standard. Once default was excused, he would still need to prevail on the
merits of the claim itself, which he is unable to do on any of his three
claims. Runningeagle has had the opportunity to fully develop in the
district court the evidentiary basis for his procedurally defaulted IAC
claims. Under these circumstances, there is no meaningful difference
between finding a claim in default and reviving it but denying it on its
merits. There was no reasonable probability that PCR proceedings would
have reached a different result if PCR counsel had raised the defaulted
claim. Thus, were we to find cause for default under the Detrich
plurality’s proposed standard, we would still deny the revived claim on its
merits, because there was no reasonable probability that trial and
sentencing proceedings would have had a different result if trial counsel
had performed effectively.
14
Martinez suggests, via a “Cf.” citation to Miller-El v. Cockrell,
537 U.S. 322 (2003), that the substantiality standard is comparable to the
standard for a certificate of appealability to issue under 28 U.S.C.
§ 2253(c)(2). Martinez, 132 S. Ct. at 1318–19. Under this permissive
standard, a petitioner need show only that “jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327.
RUNNINGEAGLE V. RYAN 27
a. Antieau’s Performance Was Not Deficient.
Under Martinez’s recursive framework, the next step is to
evaluate PCR counsel’s performance and its effect.
Runningeagle contends that PCR counsel, Antieau, was
ineffective for failing to investigate the failure to investigate
by his predecessor, trial counsel Iniguez.
There is little record evidence, one way or the other,
bearing on whether Antieau’s performance in PCR
proceedings was reasonable “under prevailing professional
norms.” Strickland, 466 U.S. at 688. First, Durand, the
investigator appointed to assist Antieau in the PCR
proceedings, declared in 2013 that Antieau was
“overwhelmed by the case,” was “not always prepared,” and
“did not perform adequately or appropriately”; that Durand
“suspected that he had poly-substance abuse issues, including
a problem with alcohol”; and that she did not recall “doing
any investigative work on either the trial or sentencing
portions of Runningeagle’s case.” This equivocal
declaration, signed more than 20 years after the fact, does not
establish ineffective performance. Durand declared that she
did not remember performing investigative work, not that she
did not perform it. One of Antieau’s contemporaneous filings
in the PCR proceedings, which stated that Durand had “not
yet completed her work,” undercuts her recollection.
Second, Runningeagle faults Antieau for failing to
provide Dr. Bendheim, the mental health expert appointed in
PCR proceedings, with materials outside the trial record. But
it is not necessarily ineffective to tailor one’s investigations
to limitations of time and money, see id. at 681, and, given
Dr. Bendheim’s preliminary impression that the appropriate
diagnosis for Runningeagle could have been the same as that
28 RUNNINGEAGLE V. RYAN
of his co-defendant, who received a life sentence,
Runningeagle does not show that Antieau’s pursuit of this
lead and forbearance of others was a prejudicial strategic
choice at the time.
Third, Runningeagle suggests that, had Antieau framed
his request for additional funding for Dr. Bendheim
differently, he likely would have received it. This is both
speculative, and smacks of the judgment in hindsight
forbidden by Strickland, id. at 680. Moreover,
Runningeagle’s prognostication of what likely would have
occurred is contradicted by the PCR court’s statement that
“Petitioner . . . has taken one aspect of the Court’s sentencing
as if it were the only basis for the Court’s determination of
the appropriate and lawful sentence.”
Finally, Runningeagle observes that the bulk of the claims
Antieau raised in his supplemental PCR petition were
dismissed for being raisable on direct appeal. This, too,
smacks of hindsight, and does not speak to whether capable
PCR counsel would have expected this outcome or whether
it was typical of Arizona PCR proceedings at the relevant
time.
Given the “highly deferential” standard under which we
evaluate Antieau’s performance, and the paucity of evidence
that Antieau performed deficiently—which Runningeagle had
a full opportunity to develop in district court following our
limited remand—Runningeagle fails to overcome the “strong
presumption that counsel’s conduct falls within the wide
RUNNINGEAGLE V. RYAN 29
range of reasonable professional assistance.”15 Id. at 689
(citation omitted). Runningeagle therefore cannot show cause
to excuse the default of the mitigation-evidence IAC claim
under Martinez. See Martinez, 132 S. Ct. at 1318.
b. Antieau’s Failure to Raise the Mitigation-
Evidence IAC Claim in PCR Proceedings Was
Not Prejudicial.
Even if we were to conclude that Antieau’s alleged failure
to investigate and present the mitigation-evidence IAC claim
in PCR proceedings was deficient, this claim would
nevertheless fail for lack of a showing of prejudice.
Similarly, to pretermit a lengthy and ultimately fruitless
discussion of what Iniguez did and did not do during his
representation of Runningeagle, others’ observations and
recollections of Iniguez, and appropriate sentencing strategies
15
It is not necessary here to delineate precisely what PCR counsel’s
duties are, and how they are similar to or different from those of trial or
appellate counsel. Martinez contemplates that effective PCR counsel may
investigate “evidence outside the trial record” to determine whether a trial-
level IAC claim may be raised, 132 S. Ct. at 1318, but Martinez is silent
as to the scope of the duty to investigate in PCR proceedings. The
effectiveness of PCR counsel is evaluated “under the standards of
Strickland,” id., but before Martinez there was no occasion to apply
Strickland’s constitutional standard in the PCR setting, where there is no
established constitutional right to counsel. Strickland is crystal-clear,
however, that effective performance is measured not by reference to any
“set of detailed rules,” but rather by assessing “the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct.” 466 U.S. at 688–90. Even if we
accept Runningeagle’s contention that PCR counsel has a broad duty to
investigate and preserve potentially meritorious trial-level IAC claims,
Runningeagle simply does not carry his burden to show that Antieau
“made errors so serious that [he] was not functioning as . . . ‘counsel.’”
Id. at 687.
30 RUNNINGEAGLE V. RYAN
and sources of standards of care, we assume arguendo that
Iniguez’s investigation and presentation of mitigation
evidence was deficient for purposes of Strickland. See
Strickland, 466 U.S. at 697 (“The object of an ineffectiveness
claim is not to grade counsel’s performance. If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.”).
Runningeagle contends that Iniguez prejudiced his
defense during the penalty phase by failing to investigate or
present key mitigation evidence. Runningeagle identifies
several areas of his life that he argues Iniguez left
unexplored: his difficult early childhood; his social and
educational history; his medical background; his use of
alcohol; the effect of his Native American heritage on his
behavior and demeanor; and mental health evidence that he
claims invalidates the diagnosis of antisocial personality
disorder and may support a diagnosis of Post-Traumatic
Stress Disorder (“PTSD”). Runningeagle also faults Iniguez
for mishandling the request of expert reports under Rule 26.5,
and failing to provide Doctors Bayless and Enos and the
probation officers with the evidence Iniguez allegedly would
have uncovered had he adequately investigated these areas.
i. Much of Runningeagle’s Newly Offered
Evidence Is Cumulative.
Iniguez examined or cross-examined a number of
Runningeagle’s family members and acquaintances at
evidentiary hearings, and solicited 15 letters on his behalf.
This testimony and evidence detailed Runningeagle’s
childhood circumstances, including his mother’s alcoholism,
his social and educational history, and his medical problems
as a child. The PSRs also described Runningeagle’s troubled
RUNNINGEAGLE V. RYAN 31
family background, criminal history, peripatetic education
and social circumstances, and history of childhood illness and
injury.16 The sentencing court considered these materials
when it decided which sentence to impose.
The pertinent new evidence that Runningeagle offers
includes the declarations of family members, classmates, ex-
girlfriends, and the parents of one ex-girlfriend; and medical,
educational, and juvenile records. This evidence does not
materially expand upon what was already before the
sentencing court. For instance, it is troubling to learn that, as
a child, Runningeagle lived in a squalid house, surrounded by
adults with substance abuse problems, who offered little
nurturing; that he frequently observed violence among family
members; and that he was sometimes so hungry, he would eat
Vitamin C tablets. But this information does not alter the
sentencing profile that was before the court. This included
the letters, live testimony, and PSR that described “a great
deal of dysfunction in the family,” a house with “very little
furniture and household provisions,” in which there was
frequently “no food,” and circumstances that led
Runningeagle’s probation officer to be “tempted on more
16
Runningeagle contends the PSRs were “largely erroneous and
incomplete.” He takes particular issue with the statement in the earlier of
the two reports that “[w]ith the exception of drinking problems on the part
of both his mother and stepfather, the defendant experienced no significant
difficulties during his youth.” However, the second PSR contradicted the
first, and provided several examples of Runningeagle’s childhood
struggles. The second PSR stated that Runningeagle himself denied
having “any dysfunction in his family,” and that the new and troubling
information, which was “contrary to the defendant’s statement,” came
from his juvenile probation officer. Cf. Strickland, 466 U.S. at 691
(“[W]hat investigation decisions are reasonable depends critically on”
“information supplied by the defendant.”).
32 RUNNINGEAGLE V. RYAN
than one occasion to contact Child Protective Services.”
Additional details about Runningeagle’s childhood sicknesses
and injuries, or the vouchings of more remote acquaintances,
likewise would not have affected the balance of mitigating
against aggravating circumstances. See Strickland, 466 U.S.
at 695; see also Bobby v. Van Hook, 558 U.S. 4, 11–12
(2009).
Runningeagle also argues that Iniguez did not properly
investigate or present mitigation evidence regarding his use
of alcohol. However, the court was aware that Runningeagle
was intoxicated at the time of the murders. The presentence
reports and Dr. Enos’s report each made reference to
Runningeagle’s problems with alcohol. Further, Iniguez’s
sentencing memorandum argued that Runningeagle’s alcohol
use was a basis for leniency, and referred to trial evidence
that, on the night of the murders, Runningeagle had been
“drinking a powerful intoxicating liquor called Jungle Juice
which is supposedly a mixture of Everclear and fruit juices.
There is also evidence that defendant was drinking beer as
well.” Once again, the new evidence Runningeagle offers as
to this issue is cumulative, and does not create a reasonable
probability that the sentencer would have differently balanced
aggravating and mitigating circumstances. Strickland,
466 U.S. at 695.
ii. The New Mental Health and Cultural
Evidence Is Equivocal.
The only new evidence offered by Runningeagle that does
not merely elaborate upon what was already in the record
concerns his mental health and the effect of his Native
American cultural background on his manner of expressing
himself. This evidence consists of (1) a 13-paragraph
RUNNINGEAGLE V. RYAN 33
declaration of psychologist Katherine DiFrancesca, dated
August 20, 1996; (2) a 44-page report prepared by forensic
psychologist Charles Harris Heller, dated July 17, 2006; and
(3) a two-page, unsworn letter from psychiatric consultant
Pablo Stewart to Runningeagle’s habeas counsel, dated
January 22, 2013. As the district court correctly concluded,
this evidence is “equivocal” at best, and is insufficient to
demonstrate Strickland prejudice.
Dr. DiFrancesca’s affidavit was based on two personal
meetings with Runningeagle, the Enos, Bayless, and Martig
reports, juvenile and medical records, and social history
information. Dr. DiFrancesca opined that Runningeagle was
an alcoholic, suffered from “psychological and mental
disorders resulting from his alcoholism,” and had a
conscience, and that the diagnosis of antisocial personality
disorder was likely incorrect. She further opined that
Runningeagle did not show his emotions publicly, including
at his court proceedings, because he was raised within Native
American culture, but that he felt “genuine remorse and
shame” for the killings. Dr. DiFrancesca gave no affirmative
diagnosis.
Dr. Heller’s report was based upon a forensic examination
of Runningeagle, his review of a variety of records, and his
expertise in Native American mental health and culture,
which he developed while providing mental health services
to the Cherokee Nation of Oklahoma. Dr. Heller opined that
Runningeagle had “severe alcoholism,” as well as “indicators
of post-traumatic stress which are unique to his childhood as
a Native American child in Phoenix and . . . multiple
traumatic experiences.” Dr. Heller suggested that Dr. Bayless
and Dr. Enos had wrongly diagnosed Runningeagle with
antisocial personality disorder, because clinicians most
34 RUNNINGEAGLE V. RYAN
familiar with Caucasian patients tend to misdiagnose Native
Americans and fail to perceive symptoms of stress and
anxiety. However, Dr. Heller found that Runningeagle “does
not meet full criteria for PTSD,” although he criticized these
“classical” criteria as they applied within the chronically
stressful environment encountered by many Native
Americans. Dr. Heller opined that “the likely reason why
[Runningeagle] fails to meet full diagnostic criteria for PTSD
is because he tends to minimize his symptoms in order to
adhere to his false sense of self.” Dr. Heller diagnosed
Runningeagle with “an anxiety disorder not otherwise
specified with PTSD features.”
Dr. Stewart wrote that he interviewed Runningeagle for
five hours, and had reviewed “a variety of social history
documents including trial court proceedings, witness
declarations, medical-mental health-school records, custodial
records and the psychological evaluation of Dr. Heller dated
July 17, 2006.” He opined “to a reasonable degree of medical
certainty[] that Mr. Runningeagle currently suffers from
Posttraumatic Stress Disorder and that he suffered from this
condition at the time of the offenses for which he has been
sentenced to death.” Dr. Stewart also speculated that
Runningeagle may have suffered from Autistic Spectrum
Disorder, Major Depressive Disorder, and Substance-Related
Disorder at the time of the killings, but that further evaluation
was needed as to these conditions.17
Runningeagle argues that, had Iniguez provided capable
mental health professionals with complete records, along with
17
Although Stewart’s letter referred to an imminent diagnostic visit with
Runningeagle scheduled for February 4, 2013, as of October 2, 2014, the
district court had not received any evidence of further tests.
RUNNINGEAGLE V. RYAN 35
supporting expert analysis of his Native American cultural
expression, the experts would have produced reports that
looked more like the newly submitted materials than the Enos
and Bayless reports, which Runningeagle contends should
never have been presented to the sentencing court. These
arguments are not persuasive.
First, the sentencing court stated expressly that, although
it did not treat the Bayless and Enos reports as sufficient
mitigating evidence, it also did not “use[] the information or
the conclusions in these reports as aggravating
circumstances.” Thus, had Iniguez successfully excluded
these reports, Runningeagle’s balance of mitigating and
aggravating circumstances would have remained the same,
according to the sentencing judge.
Second, while the court remarked at the sentencing
hearing and in its special verdict that Runningeagle had not
shown empathy for the victims, and displayed little emotion
for his family and friends, this was not the basis for its
sentence. On the day of the sentencing hearing, the court
observed that Runningeagle had “expressed some feelings
towards his family or friends,” but this did not change its
conclusions. The court focused not on Runningeagle’s
apparent lack of affect, but on the thrill he apparently derived
from committing the crimes, including the murders. Doctors
DiFrancesca and Heller explained why people raised within
a Native American culture might suppress negative emotions,
downplay family conflict, or poke fun at themselves, but
there was no evidence that the laughter, joy, and boasting
following the murders was a shared form of cultural
expression in response to heinous acts rather than an
36 RUNNINGEAGLE V. RYAN
expression personal to Runningeagle.18 Thus, it is speculative
to suggest that expert testimony about Native American
culture would have altered Runningeagle’s sentence.
Finally, even if there was some set of steps Iniguez should
have taken that would have led his mental health experts to
produce reports more like Doctors DiFrancesca’s, Heller’s,
and Stewart’s—a speculative and hindsight-plagued
assumption—these reports are not of material mitigating
weight. Dr. DiFrancesca gave no affirmative diagnosis. Dr.
Heller used qualifying language, and concluded that
Runningeagle did not meet the full diagnostic criteria for
PTSD. Dr. Stewart, who projected the greatest certainty in
his diagnosis, produced it more than 20 years after the crimes
were committed, and provided no supporting analysis. Our
precedent asks us to examine whether “the difference
between the evidence that could have been presented and that
which actually was presented is sufficient to ‘undermine
confidence in the outcome’ of the proceeding.” Duncan v.
Ornoski, 528 F.3d 1222, 1240 (9th Cir. 2008) (quoting
Strickland, 466 U.S. at 694). Runningeagle fails to
demonstrate Strickland prejudice under this standard. See
Leavitt v. Arave, 646 F.3d 605, 614 (9th Cir. 2011) (“Such
[diagnostic] opinions, which couch results in tentative
language, are simply not enough to show prejudice.”);
Rhoades v. Henry, 638 F.3d 1027, 1050 (9th Cir. 2011)
(“Speculation about potential brain dysfunctions or disorders
‘is not sufficient to establish prejudice.’”) (citation omitted);
cf. id. (“The mitigating value of [Dr. Pablo] Stewart’s most
18
The sentencing court noted that Tilden, whom Runningeagle concedes
came from an “almost identical background[],” did not display the same
positive “degree of relishing” as Runningeagle, and showed remorse and
emotion.
RUNNINGEAGLE V. RYAN 37
concrete assessment, that Rhoades ‘does suffer’ from
Post-traumatic Stress Disorder (PTSD), is lessened because
his diagnosis admittedly does not satisfy the requirements of
DSM–IV for this condition.”).
There is no “reasonable probability” that, had Iniguez
presented the new evidence, separately or collectively, “the
sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.” Strickland, 466 U.S. at 695. Therefore, even
assuming deficient performance by Antieau and Iniguez,
Runningeagle cannot show cause for the default of the
mitigation-evidence IAC claim. Martinez, 132 S. Ct. at 1318;
Pizzuto, 783 F.3d at 1178.
2. The Inculpation IAC Claim
At trial, “Runningeagle’s defense rested on the theory that
the state failed to meet its burden of proof.” Runningeagle II,
686 F.3d at 777. Runningeagle contends that this strategy
was objectively unreasonable, and Iniguez should have
argued at trial and sentencing that Tilden was the one who
killed the Williamses, and that he was the “leader” of the
group on the night of the murders. Runningeagle fails to
show that this was a substantial IAC claim, much less that
Antieau performed deficiently or prejudicially by failing to
raise it in PCR proceedings.
No record or extra-record evidence supports the theory
that Tilden personally killed either victim. Although it is true
that the government’s case against Runningeagle relied
primarily on circumstantial evidence, the evidence that
Runningeagle—not Tilden—stabbed the Williamses to death
38 RUNNINGEAGLE V. RYAN
was overwhelming.19 Runningeagle’s theory that Tilden
could have been the killer is based on Orva Antone’s
testimony that he witnessed Tilden striking Mrs. Williams in
the head with a flashlight, and the testimony of a medical
expert, Dr. George Bolduc, on cross-examination that these
“blunt force injuries of the head could have been of a fatal
nature.” However, Dr. Bolduc consistently testified that Mrs.
Williams’s death was caused by a perforated heart, liver, and
aorta, due to stab wounds through the chest and abdomen. In
context, Dr. Bolduc’s description of the blunt force injuries
as potentially “fatal” meant that they could have caused death
but for the intervening stab wounds, not that the head trauma
could have been the actual cause of death.
19
As we summarized this evidence previously:
[T]he police found Runningeagle’s palm print on the
clothes dryer next to the victims’ bodies and matched
Runningeagle’s shoes with the bloody shoe prints found
at the house. Runningeagle discussed the crimes
several times before his arrest and told his
girlfriend—who testified at trial, and to whom he
showed his car trunk full of the property stolen from the
Williamses—that “he had been in a fight with two
people and had hit them ‘full-force.’” When the police
arrested Runningeagle, they found the Williamses’
stolen property. The evidence is even stronger in light
of Antone’s testimony that Runningeagle taunted and
threatened the Williamses with his knife, waved the
knife at them as they retreated, and then broke through
the Williamses’ door with a tire iron after the
Williamses tried to get away.
Runningeagle II, 686 F.3d at 770 (citations omitted); see also
Runningeagle I, 859 P.2d at 174 (“The trial court . . . found Runningeagle
in fact killed the victims, and we agree.”).
RUNNINGEAGLE V. RYAN 39
Runningeagle suggests that Iniguez could have swayed
the judge or jury by uncovering and presenting evidence of
Tilden’s “violent past.” However, this evidence would have
been inadmissible at trial under Arizona Rule of Evidence
404(a), which prohibits the introduction of propensity
evidence to prove that an individual acted “in conformity
therewith on a particular occasion.”20 Even if this evidence
could have been presented at sentencing, there is no showing
that it could have possibly led Runningeagle, to whom the
evidence overwhelmingly pointed as the killer, to receive a
reduced sentence. As we previously concluded, “the trial
court’s detailed Special Verdict makes clear that the likely
result of further inculpation of Tilden was a death sentence
for Tilden and not a life sentence for Runningeagle.”
Runningeagle II, 686 F.3d at 771–72.
Because Runningeagle fails to show that the inculpation
IAC claim was a “substantial” one of “some merit,” the
procedural default of this claim is not excused under
Martinez. 132 S. Ct. at 1318.
3. The Second-Counsel IAC Claim
Runningeagle argues that Iniguez provided
constitutionally deficient representation by failing to request
the appointment of second counsel. Once again,
Runningeagle does not show that this is a substantial IAC
claim for purposes of Martinez.
20
Arizona Rule of Evidence 404 was amended effective November 1,
1988, after trial and before sentencing. The quoted language appears in
the codification in effect at each time.
40 RUNNINGEAGLE V. RYAN
Runningeagle relies on the 1989 ABA Guidelines, which
stated that “[i]n cases where the death penalty is sought, two
qualified attorneys should be assigned to represent the
defendant.” However, the Supreme Court has stressed that,
while ABA Guidelines may be “evidence of what reasonably
diligent attorneys would do,” they do not define counsel’s
federal constitutional duty to “make objectively reasonable
choices.” Van Hook, 558 U.S. at 8–9 (citation omitted).
Further, the Supreme Court has cautioned against the
inference of per se rules of reasonableness from professional
standards “so detailed that they would interfere with the
constitutionally protected independence of counsel and
restrict the wide latitude counsel must have in making tactical
decisions.” Id. at 8 n.1 (citation omitted). The 1989
Guidelines are not, standing alone, enough to raise a
substantial IAC claim. Rather, “[t]rial counsel cannot be said
to be constitutionally ineffective [solely] for deciding not to
bring in co-counsel,” and, to raise a substantial claim,
Runningeagle must present evidence of “some reason . . .
why the first lawyer is unable to provide adequate
representation.” Allen v. Woodford, 395 F.3d 979, 998 (9th
Cir. 2005) (alterations in original) (citation omitted).
Runningeagle observes that Tilden’s counsel, Steinle, an
experienced capital defense lawyer, obtained second counsel
to assist him. Runningeagle also presents a September 27,
1988 letter from local counsel to Iniguez offering to assist
with the sentencing hearing. This letter states that Iniguez
had not returned counsel’s earlier call. Finally, Newman, the
investigator who interviewed Iniguez in 1994, declared that
Iniguez stated that he felt “overwhelmed” by Runningeagle’s
case.
RUNNINGEAGLE V. RYAN 41
Runningeagle makes no freestanding showing of
prejudice caused by any deficient performance, and so he
cannot show that Iniguez performed deficiently by failing to
request the appointment of second counsel.21 Because
Runningeagle’s second-counsel IAC claim is insubstantial, he
fails to show cause to excuse its default under Martinez.
D. The District Court Did Not Abuse Its Discretion by
Denying Runningeagle’s Request for an Evidentiary
Hearing.
The district court granted Runningeagle’s motion to
expand the record with a number of the exhibits described
above. However, it denied Runningeagle’s request for an
evidentiary hearing at which he sought to present live
testimony from Tilden’s counsel, Drs. Stewart and Heller,
trial defense investigator Gloria Castillo, mitigation fact
witnesses, and experts in mitigation and capital defense. On
this appeal, Runningeagle contends that, if Martinez cause is
not shown outright, he is entitled to further factual
development in district court.
21
Although we have assumed that Runningeagle’s mitigation-evidence
IAC claim is “substantial,” there is no demonstrated nexus between
Iniguez’s performance during the penalty phase and his lack of co-
counsel. Even if such a nexus existed, Runningeagle would be unable to
show cause for the default of the second-counsel IAC claim. As we have
discussed, Antieau’s failure to raise the mitigation-evidence IAC claim in
PCR proceedings was not prejudicial. Likewise, Runningeagle cannot
show that Antieau’s failure to raise the second-counsel IAC claim was
prejudicial, where the supposed prejudice caused by the underlying
allegedly deficient performance—failure to investigate and properly
present mitigation evidence—is identical. We reject Runningeagle’s
cumulative error argument, which would require us to accumulate a
number of trial-level IAC claims that we have found insubstantial or
unsuccessful on the merits in this and our prior opinion.
42 RUNNINGEAGLE V. RYAN
We review for an abuse of discretion a district court’s
determination that a petitioner is not entitled to an evidentiary
hearing.22 Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir.), cert.
denied, 135 S. Ct. 710 (2014). Where documentary evidence
provides a sufficient basis to decide a petition, the court is
within its discretion to deny a full hearing. Phillips v.
Ornoski, 673 F.3d 1168, 1179 (9th Cir. 2012). “In deciding
whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to
prove the petition’s factual allegations, which, if true, would
entitle the applicant to federal habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474 (2007).
We conclude that the district court did not abuse its
discretion in denying an evidentiary hearing. “[O]ral
testimony and cross-examination were not necessary because
the documentary evidence submitted fully presented the
relevant facts.” Williams v. Woodford, 384 F.3d 567, 591
(9th Cir. 2004). The expanded record included the
declarations of witnesses who would testify at a live hearing,
and Runningeagle made no showing that their testimony
would differ materially from their declarations. The
credibility of these witnesses was not at issue, and could not
have rendered their testimony sufficient to show cause under
Martinez.
22
Because Runningeagle sought to present evidence to support a
showing of Martinez cause rather than to support directly a claim raised
in state court, we do not review his request for an evidentiary hearing
under the demanding standard of 28 U.S.C. § 2254(e)(2). See Dickens,
740 F.3d at 1321.
RUNNINGEAGLE V. RYAN 43
V. Conclusion
Runningeagle has not shown cause for the procedural
default of his IAC claims, nor has he shown that further
district court proceedings are warranted. We therefore affirm
the district court’s judgment and order, and its continued
denial of Runningeagle’s habeas petition. As the Martinez
claims are hereby resolved, we lift the stay of the mandate
imposed by our July 18, 2012 order. It may issue in the
regular course.
AFFIRMED. | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031286/ | THE THIRTEENTH COURT OF APPEALS
13-16-00201-CV
A New Hope Health Care, Inc. and Esperanza Pena
v.
Gisel Garcia
On appeal from the
County Court at Law No 6 of Hidalgo County, Texas
Trial Cause No. CL-14-1974-F
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged
against appellants.
We further order this decision certified below for observance.
September 1, 2016 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430902/ | Opal Kirchner, wife of a Baptist minister, living in northern Missouri, in 1934 was twenty-one years of age, and the mother of one child. She was suffering from a retroverted uterus, an eroded and encysted cervix, appendicitis, and dysmenorrhea. She consulted Dr. Grace Gray, an osteopathic physician of Kahoka, Missouri, and together they consulted Dr. George Laughlin, an osteopathic surgeon at Kirksville, Missouri. On the 16th day of February. Mrs. Kirchner, her husband, and Dr. Gray, traveled to Keokuk, Iowa, and there consulted Drs. Dorsey and Dorsey, who are practicing physicians and surgeons in that city, men of training and experience in *Page 285
their profession. Drs. Dorsey and Dorsey diagnosed Mrs. Kirchner's ailments as above set out, and recommended that she have an operation. She was taken to the Graham Hospital in Keokuk, and on the next day the operation was performed by them.
The operation consisted of conization of the cervix, which was performed by means of a radio frequency knife in which the cutting is done by an electric current, of varying intensity, depending upon a rheostat that may be controlled by the operator by a switch. Following this the abdomen was opened, and suspension of the uterus and an appendectomy were performed. Dr. F.B. Dorsey, Jr., did the actual operation, assisted by his father, Dr. F.B. Dorsey, Sr.
The uterus is a pear-shaped organ in the female anatomy, and the lower portion thereof is the cervix and contains the cervical canal. The cervix extends into the vagina and is the passageway thru which menstruation takes place. Conization of the cervix consists of removing a conical shaped portion at the lower end of the cervix, which is known as the lower or external os.
After the removal of the cone, the cervix was packed with iodoform gauze and the abdomen opened for the suspension of the uterus and the appendectomy. The operation was performed under a general anesthetic.
From the record it is evident that in a coning operation of the kind performed upon Mrs. Kirchner, a raw surface is left around the walls of the cervical canal and if nothing is done to prevent them coming in contact they will grow together and occlude or close this canal. The evidence shows that in this case all that was done to keep open this canal was to place gauze in same. However, the gauze was removed a day or two later and nothing thereafter was done to prevent occlusion.
From the date of the operation on February 17th until the time that plaintiff left the hospital, nineteen days later, the jury could have found from the evidence that, with the exception of the removal of the gauze, there was no examination of the cervix, no treatment of the wound, and nothing was done to hold apart the raw surfaces. There was no examination of the condition of the cervix, by either of the defendants, at the time that plaintiff was told she could leave the hospital.
In April, May and June she had intense periods of suffering, and on the 24th day of June she applied to Drs. Dorsey and *Page 286
Dorsey for relief, again being accompanied by her local doctor. At that time the cervical canal was opened with dilators. A dilator is an instrument used by medical men in forcing an opening into the cervical canal. No anesthetic was given. Plaintiff was in the hospital twenty-four hours at that time. Again in July and August she suffered cramps, with great intensity and severity in length of time. She returned, on August 11th, to the offices of Drs. Dorsey and Dorsey and appealed for help. At that time the cervix was grown over with the same sort of scar tissue as before. Again the cervical canal was opened with a dilator, without the use of an anesthetic. No other treatment was given and no precaution taken to prevent occlusion. Upon returning home from this treatment her local doctor, Dr. Gray, for the purpose of keeping open the cervical canal, placed in the canal a pessary. However, by November 6th this had come out and plaintiff again suffered great pain during September, October and November. On the 25th day of November she returned to Drs. Dorsey and Dorsey for treatment. Again it was suggested that she go to the hospital for the purpose of opening up the cervix more. Plaintiff said she could not stand the pain, and returned home. Early in December of 1934 she went to Dr. George Laughlin, a surgeon living at Kirksville, Missouri, who attempted to establish an opening in the cervical canal but was unsuccessful. He then opened the abdomen and removed the uterus.
Mrs. Kirchner in 1936 commenced this action to recover damages against the defendants in the amount of $30,000. There was a trial to a jury, in which a great volume of evidence was submitted. The jury returned a verdict in the amount of $7,500. The defendants being dissatisfied, have appealed.
I. It is claimed that the court erred in holding that appellee's petition was sufficient to allege a cause of action.
The petition was attacked by a motion for more specific statement. The record shows that upon a submission of this motion certain parts of it were sustained and certain parts were overruled; that, to meet the requirements of the ruling on the motion, the appellee filed an amendment to her petition, and thereafter the appellants filed answer.
In Crow v. Casady, 191 Iowa 1357, at page 1359, 182 N.W. 884, at page 885, this court said: *Page 287
"After these several motions had been filed and ruled on, the appellant filed an answer, and went to trial. This constituted a waiver of any error that might have been committed in the rulings on the several motions, and we cannot now consider the alleged errors in such rulings."
[1] So in the case at bar, the filing of an answer waived the defect in the motion for a more specific statement.
[2] This same question was again raised on the motion in arrest of judgment, which was overruled by the court. The only question which is raised by a motion in arrest is whether the petition wholly fails to state a cause of action, not whether the petition should have been made more specific.
Apropos to the principle relied upon by the appellants, Justice Morling, speaking for this court, in the case of Pomerantz v. Pennsylvanie-Dixie Cement Corp., 212 Iowa 1007, at page 1010,237 N.W. 443, at page 444, said:
"Whether or not a motion for more specific statement would lie is a question not before us. * * * The facts out of which plaintiff's injury arose were set out. The petition contained a general averment of negligence. It was good as against general demurrer or motion in arrest."
[3] With this rule of law in mind, let us look at the petition in this case:
It avers that the appellants are duly licensed surgeons and they advised appellee that a surgical operation upon her was necessary, and appellee submitted thereto; appellants undertook to operate upon her and treat her. It thus avers the duty arising on the part of the appellants. It then avers that the appellants were negligent, careless, and performed the operation in an unskillful manner; that they "negligently, carelessly and unskillfully injured the appellee's uterus, its tissues and lining and parts thereof so that the openings, passages and canals thereof adhered and grew together and their functions were injured and destroyed." Further, that because of appellants' said negligence appellee was made sick and suffered great pain, and it was necessary to have the appellee's uterus entirely removed, by means of which she was rendered sterile; that all of this was the proximate and direct result of the carelessness, negligence, and grossly unskillful manner in which appellants performed said *Page 288
operation and cared or failed to care for appellee therein and thereafter.
As in the cited case, the facts out of which appellee's injuries arose, were set up. There was a general averment of negligence, and it was good as against a motion in arrest.
II. It is the claim of appellants that the court erred in overruling appellants' motion for directed verdict, made at the close of the evidence, particularly upon the ground that "the evidence wholly failed to show the defendants' negligence, if any, was the proximate cause of plaintiff's injury and damage."
It is elementary that in actions for negligence the plaintiff has the burden, not only of proving negligence, but of proving that the negligence of the defendants was the proximate cause of the plaintiff's injury and damage. And in considering a motion to direct a verdict the evidence must be considered in its most favorable light to the party adverse to the motion.
There is no question in this record that there is a dispute as to whether the appellants used the approved method in the operation performed. It is true, the appellants attack the evidence of a medical man because of the fact that he lived in Fort Madison, Iowa, a short distance from Keokuk, and this will be taken up later in the opinion.
[4] The operation was performed by appellants. Some months later it was necessary to force an opening into the cervical canal. Again this was done by appellants. A few months later it was necessary to perform the same operation, and finally, when appellee went back on the fourth occasion and it was suggested that she undergo another operation of the same kind, she said she could not stand the pain. Up to this point the entire medical attention appellee had received was in the hands of appellants, who had complete and absolute charge. There is no question that the appellee did not receive the relief she sought and which appellants were trying to give to her. Upon returning after the last visit to appellants, her local doctor, Dr. Gray, inserted what is known as a pessary, which is described as a round, button-like instrument, which, at the upper end, has two prongs that spread, and between the prongs and the button part there is a coil spring. It is the claim of appellants that it was the insertion of the pessary that caused the damage, *Page 289
rather than the method in which the operation was performed or the treatment thereafter given.
However, long before the pessary was inserted, the evidence shows that appellee was confronted with difficulties. Medical men say that after an operation of this kind something must be done to prevent the canal closing or growing together, and that various devices are used, such as inserting a tube. All that was done in this case was to insert gauze, which was removed within a day or so, and thereafter nothing more was done. That the canal did grow together and close is shown by the fact that appellants on two different occasions used dilators in order to open it. And this was long before the insertion of the pessary.
Clearly, under this record, there was sufficient evidence that the negligence of the appellants was the proximate cause of appellee's injury.
[5] III. Next, appellants complain that the court erred in submitting to the jury as a basis for finding appellants liable, the subsequent treatment following appellee's discharge from the hospital in 1934.
The complaint is based upon the theory that the petition did not charge negligence or seek damages for anything that happened thereafter. A brief quotation from the petition will show that this is not the case.
It is alleged that the appellants negligently, carelessly and unskillfully injured the appellee's uterus, its tissues, linings and the parts thereof so that the openings, passages and canals and inner portion thereof adhered and grew together and the functions and uses of the parts and similar organs of appellee were injured and destroyed. The damages, including pain and suffering, permanent injury, and the removal of the uterus, are set out, followed by this allegation: "All of which has been the proximate and direct result of the carelessness, negligence and grossly unskillful manner in which defendants as aforesaid treated this plaintiff and performed said operation and cared or failed to properly care for plaintiff therein and thereafter."
This court, in Lampman v. Bruning, 120 Iowa 167, at pages 169, 170, 94 N.W. 562, at page 563, said:
"It is not then adopted because a feature of common-law pleading, but as an aid in securing definiteness and precision in the settlement of issues. `The rules by which their sufficiency *Page 290
are to be determined are those prescribed by the Code.' Code, section 3557.
"After issue is joined on the merits, notwithstanding section 2951 of the Revision of 1860 is not found in the Code, the pleadings will be liberally construed, with a view to effectuating substantial justice between the parties. * * * While nothing is to be assumed in favor of the pleader unless averred, he is to be accorded the advantage of every reasonable intendment, even to implications necessarily inferred, regardless of technical objections or informalities."
The petition does not limit the treatment to the time the appellee was in the hospital. She employed the appellants not merely to insert the knife and stitch up the wound, but to treat her until she had recovered. Appellants knew that the operation necessitated a long subsequent period of treatment in order to effect a cure. The seat of the operation required inspection and dressing, to see whether the wound was healing properly, and it was the duty and responsibility of the physician or surgeon to see to this. In this case we find that appellants, after the operation, on two occasions, took appellee to the hospital and used dilators in an attempt to keep open the cervical canal.
[6] IV. We come now to what we believe is the main contention of the appellants: that the court erred in overruling appellants' motion for directed verdict, because there is not sufficient evidence in the record to justify the jury in returning a verdict against the appellants, and finding that appellants failed to follow the usual and ordinary practice among reasonable and careful physicians and surgeons in Keokuk and similar communities in performing the operation shown by the record to have been performed on February 17, 1934.
In O'Grady v. Cadwallader, 183 Iowa 178, 192, 166 N.W. 755,759, this court said:
"There is no implied guaranty of results, and all the law demands is that the practitioner bring to the service of his patient and apply to the case that degree of skill and care, knowledge and attention, ordinarily possessed and exercised by practitioners of the medical profession under like circumstances and in like localities; and it is the general holding of the courts that the bare fact that full recovery does not result, or that a surgical operation is not entirely successful, is not, in and of itself, *Page 291
evidence of negligence; and, in the absence of any showing from those learned in the profession that there was a failure to do that which ought to have been done in the treatment of the injury, or that there was that done which ought not to have been done in the treatment of the injury, there can be no recovery."
With this rule of law in mind let us look at the record.
There is in this record the testimony of Dr. Frank R. Richmond, a graduate of the medical school of the University of Illinois, a physician and surgeon of years' standing, a man of experience and training, who testified that he lived at Fort Madison, in Lee county, a short distance from Keokuk, who was familiar with the usual and ordinary practice of physicians and surgeons in Keokuk and surrounding community, in conization of the outer os of the uterus where there are cysts.
This medical man testified that the procedure and method used by the Doctors Dorsey were not that ordinarily used; that it was essential that the canal be kept open — in fact, all of the medical men so testified — and in keeping the canal open various methods are used; that inspection must be made frequently to see that the canal was kept open. There is some conflict in the testimony on the part of the other doctors who testified on behalf of the appellants. Clearly, the question was one for the jury.
V. It is the claim of the appellants that the court should have given requested instruction No. 6 relating to expert testimony.
The court did give instruction No. 16, and appellants concede that is correct, but they claim that instruction No. 6 should also have been given.
[7] It is a well-recognized rule of this court that where the trial court gives an instruction which is similar to or embodies all the principles of a requested instruction, it is not error to refuse to give the requested instruction.
In the case of Kiser v. Morton Farmers Mutual Insurance Association, 216 Iowa 928, at page 935, 249 N.W. 753, at page 756, this court said:
"The other instructions asked and refused are such as were fully covered by the court in its instructions given to the jury, and we find no error in the refusal of the court to give the instructions asked by the appellant." *Page 292
Many times this court has said that the instructions given by the trial court should be considered as a whole, and not individually. In the case of Swan v. Dailey-Luce Auto Co.,221 Iowa 842, at page 846, 265 N.W. 143, at page 145, this court said:
"It is the well-settled rule of law in this state that the instructions must be considered as a whole, and if, when so considered, they fairly instruct the jury upon the questions presented, there is no prejudicial error."
In reading the instructions as a whole, we find no error.
VI. Next it is argued that the court erred in failing to instruct the jury properly relative to appellee's burden of showing the necessity of removing the uterus.
[8] It seems to be appellants' theory that the jury, in determining the matter of necessity, should only consider opinions of experts regardless of whether or not the experts themselves have fixed any standard of necessity. One physician might say that what was necessary was to be gauged by whether appellee's life depended upon a certain course. Another might think that necessity should be gauged by whether the patient's intense discomfort or pain could be avoided by the removal of the organ, which would completely eliminate that from her life. Another physician might think that preservation of the ability to bear children was more important than the risk of death or long suffering, and therefore that the patient should be subjected to a risk of death or long suffering, rather than have the uterus removed. Therefore, the opinion of physicians as to the mere fact of necessity is not controlling on the jury. The jury is well able to say whether the preservation of life, the freedom from long pain or suffering, or the preservation of the power to bear children regardless of the risks that might accompany it, shall be the standard of necessity. The jury must be the judges of the ultimate facts of whether it was necessary, and unless the expert testimony attempting to show that the removal was not necessary, gives the reasons of the doctors why it was not necessary, it would be an invasion of the province of the jury. This is not a question upon which experts alone have knowledge but is for the jury to determine upon the facts presented.
VII. There are several errors alleged in the admission of certain testimony. To go into each and every one of these would *Page 293
extend this opinion altogether too far. Suffice it to say that we have carefully read the able brief and argument of the appellants, and the authorities therein cited, and find no error.
[9] VIII. The next error alleged is the failure to strike the testimony of Dr. John Reichman of Hannibal, Missouri, in so far as said witness testified relative to the usual and ordinary practice of physicians and surgeons in Keokuk, Iowa, and similar communities relative to the operation performed in this case, for the reason that said witness is incompetent and not qualified by the record.
The evidence shows that Dr. John Reichman is a physician and surgeon located at Hannibal, Missouri, a city about seventy miles from Keokuk; that he was a graduate of the St. Louis University School of Medicine and spent three years in internship at the St. Louis City Hospital, which had 800 to 1,200 beds, as well as being resident physician of same; that he performed or supervised the performance of somewhere between 150 and 200 cervical conization operations; that he watched Dr. Crossen, one of the leading gynecologists, perform this operation several times; that he had performed a great many of these operations since being in practice at Hannibal, Missouri, and also observed these operations at Quincy, Illinois, a city located about thirty-five miles from Keokuk. He described what was the correct technique in performing these operations in localities similar to and relatively near Keokuk; and was familiar with the method used in all of these surrounding cities and towns of the same size as Keokuk. The undisputed evidence shows that he was qualified in all respects regarding his knowledge of this type of operation, and his testimony certainly shows the standard of practice of the general locality surrounding the city of Keokuk.
We find the following in the case of Whitesell v. Hill,101 Iowa 629, at pages 636, 637, 70 N.W. 750, at page 751, 37 L.R.A. 830:
"But we are of the opinion that the correct rule is that a physician and surgeon, when employed in his professional capacity, is required to exercise that degree of knowledge, skill, and care which physicians and surgeons practicing in similar localities ordinarily possess."
In this same case the court, at page 636, *Page 294 70 N.W., at page 751, quotes with approval from the case of Gramm v. Boener,56 Ind. 497:
"`It seems to us that physicians or surgeons practicing in small towns or rural or sparsely-populated districts, are bound to possess and exercise at least the average degree of skill possessed by and exercised by the profession in such localities generally. It will not do, as we think, to say that, if a surgeon or physician has exercised such a degree of skill as is ordinarily exercised in the particular locality in which he practices, it will be sufficient. There might be but few practicing in the given locality, all of whom might be quacks, ignorant pretenders to knowledge not possessed by them; and it would not do to say that, because one possessed and exercised as much skill as the others, he could not be chargeable with the want of reasonable skill.'"
This rule is again cited with favor in the case of Nelson v. Sandell, 202 Iowa 109, at page 111, 209 N.W. 440, at page 441, 46 A.L.R. 1447, where this court said:
"The physician is bound to bring to the service of his patient and apply to the case that degree of knowledge, skill, care, and attention ordinarily possessed and exercised by practitioners of the medical profession under like circumstances and in like localities."
To lay down a rule that no one could testify except a doctor from the particular town in which the medical man being sued lived, would indeed be unfair and unreasonable. As stated in the cases cited, the physician and surgeon is bound to exercise that skill and care ordinarily possessed under like circumstances, in like localities.
[10] IX. It is next contended by appellants that the court erred in the admission of certain questions asked Dr. Frank R. Richmond in regard to the result which was to be expected after an operation because it tended to indicate to the jury that a bad result would show the appellants must have been negligent.
In the case of Berg v. Willett, 212 Iowa 1109, 1112,232 N.W. 821, 823, this court said:
"The burden in this case was upon appellant to make out a case of negligence or unskillfulness by the preponderance or *Page 295
greater weight of the evidence. The physician does not, in accepting employment, impliedly guarantee a cure in any case or of any disease. He is bound only to employ that degree of skill ordinarily possessed by practitioners generally under like circumstances in the locality in which he practices his profession. It is, however, one thing to say that an adverse result is not, in itself, evidence of negligence or want of skill on the part of a physician, and another to combine the result with other facts and circumstances in determining the fact question. We think it is and must be the rule that while the result alone is not, in itself, evidence of negligence, yet same may, nevertheless, be considered, together with other facts and circumstances disclosed by the evidence in a given case in determining whether or not such a result is attributable to negligence or want of skill."
The appellants argue strenuously that the case of Hair v. Sorenson, 215 Iowa 1229, 247 N.W. 651, is controlling in the case at bar. However, in deciding that case this court quoted the rule given in the case of Berg v. Willett, supra, but, inasmuch as there was a complete recovery there, no other facts and circumstances were introduced together with the result, to determine whether or not such result was attributable to negligence or want of skill.
In view of the cases cited, the admission of the result, coupled with other evidence, was material in determining negligence or want of skill.
[11] X. Appellants argue that the court erred in overruling the motion for new trial. It is their argument that one of the jurors, Freda Anderson, became ill and was handicapped as a juror; that during the deliberation of the jury certain matters in the nature of evidence were considered by the jury which were not a part of the record and regularly admitted; and that other statements were made in the jury room which were not duly admitted in evidence.
There were attached to the motion for new trial a great many affidavits, including one of Mrs. Freda Anderson, one of the jurors. Later, however, this same Mrs. Anderson made another affidavit. We quote from the second affidavit:
"I had before this time and during the entire time that the jury was out, been in favor of returning a verdict for the plaintiff. When asked after I had returned to the jury room after *Page 296
being sick what amount I favored giving to the plaintiff I said $15,000.00. Some time thereafter one of the jurors, I think the foreman, said to me that the rest of the jury were willing to return a verdict for $7,500.00 and asked me whether this amount would be agreed to by me. I stated yes and understood at the time that that amount would constitute a verdict for the plaintiff and that a verdict for the plaintiff would be rendered in that amount."
No one can read this second affidavit and say that Mrs. Anderson was not familiar with the entire situation. She was for the appellee. In fact, the only disagreement appeared to be as to the amount. She wanted to return a verdict of $15,000, but finally agreed to the amount of $7,500. There is no showing here that Mrs. Anderson was in a critical condition; that she was unable to understand what was going on, or that she was unable to perform her duty as a juror. She was examined during the period of deliberation, at the request of the court, by a doctor, and he reported that she would be able to continue to serve as a juror.
In In re Estate of Osborn, 185 Iowa 1307, at page 1318,168 N.W. 288, at page 291, this court said:
"The claim of the juror that he yielded to mere weariness or weight of numbers is only an impeachment of the verdict and of the juror himself, and is not permissible."
In the case of State v. Dudley, 147 Iowa 645, 652,126 N.W. 812, 815, this court said:
"And yet in the face of this instruction eleven of the jurors made affidavits that they had considered Bishop's testimony as tending to connect the defendant with the commission of the offense. This does not obviate the correctness of the instruction which clearly advised to the contrary. These affidavits were stricken from the files, and rightly so. Jurors cannot be permitted to thus stultify themselves, and thereby impeach their own solemn findings. That the jury misunderstood the instructions if correct furnishes no ground for new trial. In Brown Land Co. v. Lehman, 134 Iowa 712, 112 N.W. 185, 12 L.R.A. (N.S.) 88, evidence had been erroneously admitted, a motion to strike overruled, and it had been commented on by counsel in their argument to the jury, and, although the court had withdrawn *Page 297
the issues upon which the evidence was received, the affidavits of the jurors were admitted as showing that they had considered the evidence in reaching the verdict. The evidence was still before the jury, though improperly and it was thought the case was analogous with one where improper matters had been brought to the attention of the jurors, as in Douglass v. Agne, 125 Iowa 67,99 N.W. 550. The distinction between such cases and those wherein the affidavit is of a matter inhering in the verdict is pointed out in the last case. Affidavits of jurors that they have been unduly influenced by their fellows, or of the reasons for assenting to the verdict, or of improper arguments resorted to in the jury room, or that they did not assent to the verdict, or that it was not the result of their deliberate judgment, or they did not understand the instructions of the court as these matters inhere in the verdict, are incompetent, and cannot be received to impeach the jury's findings."
[12] The affidavits in this case, attached to the motion for new trial, and to the resistance to the motion, show clearly why courts should not grant new trials simply because affidavits on the part of jurors are filed. Some of the affidavits attached to the motion for new trial are offset by affidavits by the same jurors, attached to the resistance to the motion. Verdicts and trials cannot be destroyed ordinarily by an affidavit of a juror as to what took place in the jury room. If they could be, then there would be no end to litigation.
The record is a long one. Able counsel represented both sides. The distinguished trial court properly submitted the case to the jury. It was for the jury's determination. They have spoken. There being no error, it necessarily follows that the case must be, and it is hereby, affirmed. — Affirmed.
All JUSTICES concur. *Page 298 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430910/ | This is an action in equity in which the plaintiff sought to enjoin the defendant city of Marengo, Iowa, and the county treasurer from advertising, offering to sell, or selling certain real estate in the city of Marengo, Iowa, for the purpose of collecting certain special assessments levied thereon, and asked that such special assessments be canceled and that plaintiff's title to such real estate be quieted as against any alleged claim or lien thereon because of such special assessments. The grounds for such relief were that all of said special assessments were delinquent prior to the year 1927, and that the treasurer of Iowa county had failed to enter such delinquent special assessments upon the tax list opposite the description of said real estate with the amount remaining unpaid thereon, and did not advertise or offer for sale or sell said real estate to collect such special assessments, and that, by reason thereof, such special assessments had ceased to be a lien upon said real estate; that said real estate was sold by the treasurer of Iowa county, for delinquent taxes at the regular tax sale in 1927, after all said special assessments had become delinquent, and that plaintiff had redeemed said real estate from such tax sale; and that all of said special assessments had been delinquent for more than five years prior to the commencement of this action, and the lien of such special assessments has ceased to exist by reason of the statute of limitations. For answer the defendants pleaded a general denial *Page 1072
and, in addition thereto, alleged that such assessments had been duly and legally levied for street improvements and constituted a lien against the said real estate until paid; that the then owner, E.J. Sullivan, had signed a waiver of all objections to said assessments and agreed to pay the same, which constituted a contract lien against said real estate; and that the records of the treasurer of Iowa county had been kept in the books and in the manner as provided by law.
Upon the trial of the case the court found for the plaintiff and entered a judgment and decree declaring that the said real estate was not subject to any lien on account of the said special assessments, enjoining the defendants from advertising or selling or attempting to sell said real estate to enforce collection of such special assessments, and quieting title in plaintiff. From this judgment and decree the defendant city of Marengo, Iowa, appeals.
The facts of the case are that, during the year 1920, E.J. Sullivan was the owner of the real estate against which the special assessments in question were levied. These special assessments were for three separate street improvements, were included in three separate levies which were made by the city council in August, September, and October, 1920, respectively, and were certified to the auditor of Iowa county, Iowa, by the city clerk of the city of Marengo, Iowa, on the 1st day of November, 1920.
Thereupon, the county auditor prepared a list which included the special assessments involved in this case and other special assessments of the city of Marengo, Iowa, and certified it to the treasurer of Iowa county, Iowa, on the 9th day of November, 1920. This list included separate columns above which were the following headings: "Name of owner", "Description", "Date of acceptance", "Amount of tax", "Waivers signed or remarks", "First payment due", "Second payment due", "Third payment due", "Fourth payment due", "Fifth payment due", "Sixth payment due", "Seventh payment due", "Interest", "Date paid", and "Receipt No.". The name of the owner, E.J. Sullivan, the description of the respective lots or parcels of real estate, the date of acceptance of the improvement, and the amount of the tax for each lot or parcel were written in the appropriate columns under the designations above referred to. Under the heading "Waivers signed or remarks" there was written the word "Yes". Under the heading, "First payment due" was written the figures "3-1-21", and opposite these figures the *Page 1073
amount due on the first payment for each separate lot or parcel described. This list also showed the amount due on each lot or parcel for the second to seventh installments, inclusive.
No part of these special assessments chargeable to the land then owned by E.J. Sullivan and now owned by the plaintiff was ever paid. On the 31st day of December, 1921, the county auditor of Iowa county certified to the county treasurer of said county the tax list containing all taxes levied against the taxpayers of the city of Marengo for the year 1921. A like list was certified by the county auditor to the county treasurer for the years 1922 to 1930, inclusive. The said tax lists for the years 1921, 1922, 1923, 1924, 1925, 1926, and 1927 all showed the description of the real estate involved herein, and contained data in reference to the regular taxes thereon; but none of these tax lists contained any entry showing the unpaid special assessments against said real estate or any part of it, or having any reference to such unpaid and delinquent installments of said special assessments.
On the 5th day of December, 1927, the real estate involved in this action, against which such special assessments had been levied and no part of which had then been paid, was sold at the regular tax sale and a tax certificate of purchase was issued to J.H. Lewis, the purchaser. On the 3d day of June, 1931, the property in question was redeemed from such sale by the present owner, W.E. Wallace, plaintiff herein. On the 23d day of March, 1927, a quitclaim deed was executed by E.J. Sullivan and Leona Sullivan, his wife, to the plaintiff herein, conveying all their interest in the real estate involved herein, subject to paving assessments, and this deed was recorded in the office of the county recorder of Iowa county on the 4th day of April, 1931.
The plaintiff-appellee contends, and the trial court so held, that the said real estate is not now subject to the lien of the special assessments which were levied against the same by the city of Marengo in the year 1920. Plaintiff's contention is based upon three different grounds: First, that the lien for said special assessments was terminated by the failure of the county treasurer to enter the amount of such delinquent special paving taxes opposite the description of the said real estate upon the tax lists for the years 1921 to 1927, inclusive; second, that the sale of said real estate at the tax sale in December, 1927, for the general taxes against the same, in law amounts to a payment of all delinquent special taxes as well *Page 1074
as general taxes; third, that more than five years elapsed from the time the last of said delinquent installments of said special assessments became due, and that any action to enforce payment of same is now barred by the statute of limitations. If any one of these grounds is good, the plaintiff-appellee must prevail and this appeal must be affirmed.
The statutes which were in force during the period from 1920 to 1927, inclusive, governing the duty of the county treasurer to enter all delinquent real estate taxes opposite the description of the real estate in the tax list for each year are section 4641 of the Code of 1919, [S., '13, section 1389-d] and section 7193 of the Code of 1924. These sections are identical, and are as follows:
"* * * The treasurer shall each year, upon receiving the tax list, enter upon the same in separate columns opposite each parcel of real estate on which the tax remains unpaid for any previous year, the amount of such unpaid tax, and unless such delinquent real estate tax is so brought forward and entered it shall cease to be a lien upon the real estate upon which the same was levied, and upon any other real estate of the owner. But to preserve such lien it shall only be necessary to enter such tax, as aforesaid, opposite any tract upon which it was a lien. Any sale for the whole or any part of such delinquent tax not so entered shall be invalid."
Appellee contends that, because such delinquent special assessments were not so brought forward and entered upon the tax lists for the years 1921 to 1927, inclusive, the lien upon the real estate upon which the same was levied has been lost. Appellant contends that the special assessments involved herein were not contemplated by the legislature when enacting the statute above quoted, and are not included within the meaning of the word "tax" as therein used. Appellant further contends that under section 6008 of the Code of 1924, and laws theretofore in force, the said special assessments became a lien against the real estate involved when they were certified to and filed with the county auditor, and that they remain a lien until paid. It is true that the word "tax" or "taxes" does not always include special assessments against property on account of special benefits conferred. Munn v. Board of Supervisors, 161 Iowa 26,141 N.W. 711. However, that special assessments are included along with other taxes under the provisions of section 4641, Code *Page 1075
of 1919, and section 7193, Code of 1924, seems to have been settled by Fitzgerald v. City of Sioux City, 125 Iowa 396,101 N.W. 268, 271, and Holleran v. Toenningsen, 178 Iowa 1365,161 N.W. 25, 26. In the Fitzgerald case, which, like the case at bar, was a suit to quiet title to certain lots in the city of Sioux City, the defendant city claimed that the property was still subject to certain special assessments made against it for street improvement purposes. The plaintiff had purchased the real estate in question at the tax sale for the year 1897, for taxes against it for the years 1892 to 1896, inclusive. In the years 1890 and 1891, the defendant city had levied special grading and paving taxes against the property which were payable in installments due in ninety days, two years, four years, six years, and eight years from the date of levy. Said special assessments had been certified to the county treasurer for collection, as by statute provided. At the time of the sale two such installments were due. The statute in force at that time in reference to sales of real estate directed the county treasurer "to offer and sell at public sale to the highest bidder all real estate which remains liable to sale for delinquent taxes". In discussing the question whether such statute included the special assessments, we said:
"It is perfectly plain that if section 1425 of the Code refers, or should be made applicable to, assessments for street improvements, plaintiff's case is won. Surely it applies to ordinary city taxes, and, if the city elects to collect its special assessments through the county officials by tax sale, we know of no reason why it should not be made applicable to these assessments. That such was the legislative intent was manifest, we think, from the provision of the law which says that the purchaser at tax sale shall take the property subject to the lien of unpaid installments of special assessments."
In that case, also, the county treasurer failed to bring the remaining two installments forward upon the tax list after the sale in 1897, and we further said:
"But there are other reasons why the city's lien is extinguished. The taxes were not brought forward after the sale in 1897, as required by law, and they for that reason alone, ceased to be a lien on the property. Talcott v. Noel, 107 Iowa 470,78 N.W. 39."
The Holleran case also involved a special assessment levied by the city of Lyons against real estate for a street improvement. *Page 1076
The assessment was certified by the city treasurer to the county treasurer for collection in October, 1908. The county treasurer entered the special assessment upon his list for 1908, and at the tax sale following offered it for sale without securing bids therefor. In making up the tax books the following year, 1909, the delinquent special assessments were not carried forward into such books, as required by the statute then in force, which was almost identical with the present statute, nor were these special assessments advertised or offered for sale that year. In 1912 the property was again offered for sale and sold. Action was then brought by the owner to restrain the issuance of certificates on the grounds, among others, that, because of the failure of the county treasurer to bring forward the delinquent assessments upon the tax books for the year 1909, the lien thereof became extinct and a subsequent sale thereof was invalid; and because the last of such installments having been due in 1906, all such installments were due and payable more than five years before the time of sale in 1912, and their collection was barred by the statute of limitations. In affirming the decree of the trial court and holding the sale invalid, we said:
"Upon the effect of the statute of limitations, as well as of the failure to bring forward the delinquent assessments upon the tax books, the case of Fitzgerald v. Sioux City, 125 Iowa 396,403, 101 N.W. 268, would seem to be decisive. The statute which makes it the duty of the treasurer to bring forward delinquent taxes provides that, unless such tax is so brought forward and entered, it shall cease to be a lien upon the real estate upon which the same was levied. Code, section 1389. The admitted failure in this respect operated, therefore, to automatically remove the lien, and, the lien once lost, the right and authority to sell the property for its enforcement was lost with it. The fact that in a subsequent year the county treasurer assumed to again enter the assessment upon his books against the property could not operate to restore to life a lien which, by the terms of the statute, had theretofore ceased to exist."
Appellant further contends that, since the statute provides that when such special assessments have been levied and certified by the county auditor they shall become and remain a lien until paid, an intention is evidenced on the part of the Legislature that nothing except payment can ever terminate the lien of such special assessments. *Page 1077
In the case of Preston v. Van Gorder, 31 Iowa 250, the statute then in effect provided that
"on the first day of February the unpaid taxes, of whatever description, for the preceding year shall become delinquent, * * * and taxes upon real property are hereby made a perpetual lien thereupon against all persons, except the United States and this State".
At the November sale, 1867, said lands were sold to the plaintiff for the delinquent taxes for the year 1866. Thereafter, the treasurer advertised the same lands for sale for delinquent taxes thereon for years prior to 1866. By statute the treasurer was required to sell all lands on which taxes of any description for the preceding year or years were delinquent and the statute provided that such sale be made for and in payment of the total amount of taxes unpaid upon such real property. In considering the question as to whether such sale for the taxes for the year 1866 divested the lien of taxes for prior years which were not included in such sale, we said:
"We have thus recited the various portions of the statute, from which our conclusions are to be deduced; and it will be seen, in the first place, that the taxes levied on lands are made a `perpetual lien thereon.' This must be understood, of course, as a lien continuing until divested in the manner provided by law."
It would seem that the statute which made taxes a perpetual lien was fully as strong in its terms as the statute which makes special assessments a lien until paid. In this case, as in the Preston case, we are of the opinion that the provision that such special assessments should be a lien until paid must be understood as meaning that they would be a lien until divested in the manner provided by law. Since section 7193 provides a condition under which the lien of taxes shall be divested, and as, under the holding of the Fitzgerald and Holleran cases, this section applies to special assessments as well as other taxes, we are constrained to hold that the lien of the special assessments in this case was divested by the failure of the county treasurer to enter such delinquent special assessments on the tax lists for the years 1921 to 1927, inclusive.
Appellant introduced much evidence and devoted a large part of its argument in showing that the tax records in the office of the treasurer of Iowa county were kept in books and on records *Page 1078
prescribed by the state auditor, pursuant to section 111, Code of 1924; that the special assessment tax list was kept upon a special form prescribed by the state auditor, and that the tax list was also kept upon a special form prescribed by the state auditor; and that the keeping of the records of the city treasurer having thus complied with the law, it could not be presumed that the Legislature had intended that the provisions of section 7193 were meant to apply to special assessments. Section 111 provides:
"* * * The auditor of state shall prescribe a uniform system of blanks and forms for all financial accounts, receipts, and reports of all county, city, and town offices, including offices of cities acting under special charter. Said system shall, as far as practicable, follow the classifications and definitions of such transactions in use in the national census office, when not in conflict with the laws of this state. Said blanks and forms shall, by said auditor, be revised, from time to time, in order to render the same more efficient and to meet changes in the law."
There is nothing in this section to indicate that the Legislature meant to repeal or modify any part of section 4641 of the 1919 Code, which was the same as section 7193 of the 1924 Code, or that it meant to empower the auditor of state to dispense with the requirements of the specific provisions of these statutes. To construe this section as in any way authorizing the state auditor to provide and enforce the use of blanks or forms inconsistent with the provisions of the statutes or in violation thereof would be to delegate to the state auditor the power to repeal or abrogate laws which have been enacted by the Legislature and to enact new laws in place thereof. That such was not the intent of the Legislature is without question.
Appellant argues that, under section 825, Code Supp. 1913, which was in force when the assessments were made, the waiver which was signed by the then owner, E.J. Sullivan, created a contract lien, in addition to the lien created by the statute, and that, even if the statutory lien was lost by failure to carry the delinquent assessments forward upon the tax lists, this contract lien still continues to exist. A reading of the statute and of the waiver fails to show anything indicating that a special contract lien is created in addition to the statutory lien, and the only authority cited by appellant on this point fails to sustain this contention. *Page 1079
Appellant finally argues that chapter 184 of the 44th General Assembly, which became effective April 25, 1931, legalized the use of the official prescribed forms and the keeping of a special assessment book separate and apart from the yearly tax record and list, and declares sections 7145 to 7193 of the Code inoperative as to special assessments. This act does not pretend to restore or reimpose liens that have already been lost, and comes too late to be of any avail to the appellant. As said in the Holleran case:
"The admitted failure in this respect [to carry the delinquent assessments forward on the tax list] operated, therefore, to automatically remove the lien, and, the lien once lost, the right and authority to sell the property for its enforcement was lost with it."
In view of the decision reached, it is unnecessary to discuss the other propositions presented by the appellee.
The decree and judgment of the trial court is affirmed.
ALBERT, C.J., and EVANS, KINDIG, and CLAUSSEN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430968/ | On August 8, 1934, plaintiff recovered judgment against the defendants, Peter E. De Vries and Minnie De Vries, for sum of $17,020.19, with 8 per cent interest per annum from the 31st day of July, 1934, and for costs in the amount of $54.50, which judgment was made a lien upon certain premises described in a mortgage given to secure said indebtedness, and the decree was granted foreclosing said mortgage and ordering special execution for the sale of said premises. On the same day special execution was issued for the sale of the mortgaged premises.
On the 8th day of September, 1934, one month after the decree was entered, the defendant P.E. De Vries filed an application for an order to recall the special execution setting forth certified copy of an order of Hon. George C. Scott, United States District Judge, approving debtor's petition in proceedings under section 75(s) of the Bankruptcy Act, commonly known as the Frazier-Lemke Act (as added by Act June 28, 1934, 48 Stat. 1289), and asking that no further proceedings be taken in the state court under said execution until the termination of the proceedings in the federal court. This application was granted by the district court and an order entered decreeing that special execution for the sale of the mortgaged real estate be recalled, and that no sale of said real estate be held, that the execution be marked canceled and be returned to the clerk of the district court of Sioux county, Iowa, and that no further execution issue in said case until jurisdiction over the defendant's property had been surrendered by the federal court. The sheriff accordingly returned the execution stating: "The within execution recalled. Action thereon stayed by order of court. Dated September, 1934." Thereafter, the Supreme Court of the United States having held the Frazier-Lemke *Page 583
Act unconstitutional, the proceedings in the bankruptcy court were dismissed. Louisville Joint Stock Land Bank v. Radford,295 U.S. 555, 55 S. Ct. 854, 79 L. Ed. 1593, 97 A.L.R. 1106.
Thereafter, to wit, on July 18, 1935, the plaintiff filed an "Application to Amend Decree," alleging that, by reason of securing said stay of the former execution, the defendants, under section 11775 of the Code of Iowa, had lost their right to redeem, and that plaintiff was now entitled to decree ordering the sale of said real estate without redemption, and asking that the decree be modified by striking from the eighth paragraph of said decree the words, "and except such rights of redemption as are specifically provided by law," and the following words, "and be not redeemed as provided by law within one year from the date of sale," and inserting in lieu thereof the following: "and sheriff's deed shall immediately issue to the purchaser at said foreclosure sale." This application was set down for hearing, and plaintiff was ordered to serve the defendants with notice of said application at least four days before the time set for hearing, which order was complied with. On July 22, 1935, the defendant P.E. De Vries filed a motion to dismiss plaintiff's application to amend decree, setting forth: "That more than eleven months have elapsed since the filing and entry of said decree. That no appeal has been taken from said decree by any party and that said decree stands as a finality, and that the court has no jurisdiction to alter or amend said decree at this time, and particularly has no jurisdiction to do so in connection with this proceeding," and alleging further that section 11775 has no application to this proceeding, and that there is no such stay as contemplated by said statute, and that in any event, Minnie De Vries, wife of the defendant, against whom personal judgment was also obtained, has a right to redeem because of her liability for the mortgage indebtedness under dower and homestead rights in said real estate, and that she has taken no steps to postpone proceedings, and has done nothing to lose her right of redemption, and further alleging that other judgment lienholders have a right to make redemption from any sale that might be had under said judgment. A similar motion was filed by Minnie De Vries. This application to amend decree and motions to dismiss said application were duly submitted to the district court, and on the 29th day of *Page 584
July, 1935, the trial court entered the following order: "Now on this 29th day of July, 1935, it is ordered that the application of the plaintiff for an amendment to the decree of foreclosure heretofore entered in this case be not allowed, and plaintiff excepts. It is further ordered that the motions of the defendants to dismiss said application be and they are sustained, and plaintiff excepts." And it is from this order that the plaintiff has appealed.
We know of no statutory provision authorizing such a procedure as that undertaken by the plaintiff in his application to amend the decree nine months after the same had become a finality. The statutory procedure to modify a judgment is found in chapter 552 of the Code (section 12787 et seq.). Section 12787 provides:
"Where a final judgment or order has been rendered or made, the district court, in addition to causes for a new trial hereinbefore authorized, may, after the term at which the same was rendered or made, vacate or modify the same or grant a new trial:
"1. For mistake, neglect, or omission of the clerk, or irregularity in obtaining the same.
"2. For fraud practiced in obtaining the same.
"3. For erroneous proceedings against a minor or person of unsound mind, when such errors or condition of mind do not appear in the record.
"4. For the death of one of the parties before the rendition of the judgment or making of the order, if no substitute has been made of the proper representative before the rendition of the judgment or order.
"5. For unavoidable casualty or misfortune preventing the party from prosecuting or defending.
"6. For error in the judgment or order shown by a minor within twelve months after arriving at majority."
Manifestly, the application in this case is not based upon any of the grounds covered by this provision of our Code. Furthermore, the plaintiff is not entitled to "amend" or modify the decree in such a way as to deprive Mrs. De Vries or other junior lienholders of the right to make redemption according to the provisions of the statute. We find no error in the ruling of the trial court, and the cause is accordingly affirmed. We *Page 585
do not determine the rights of the debtor defendant P.E. De Vries to make redemption of said premises under any future sale. — Affirmed.
DONEGAN, C.J., and ANDERSON, ALBERT, MITCHELL, KINTZINGER, RICHARDS, and PARSONS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031261/ | NUMBER 13-16-00036-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CIRINO PASTOR VILLAFANA-VARGA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 54th District Court
of McLennan County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes1
Memorandum Opinion by Justice Perkes
Appellant Cirino Pastor Villafana-Varga appeals his conviction of indecency with a
child by contact, a second degree felony. See TEX. PENAL CODE ANN. § 21.11, (West,
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV'T CODE ANN. §
73.001 (West, Westlaw through 2015 R.S.).
Westlaw through 2015 R.S.). After appellant pleaded not guilty, a jury found him guilty
of the offense and assessed punishment at thirteen years’ confinement. Appellant’s
court-appointed counsel filed an Anders brief. See Anders v. California, 386 U.S. 738,
744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
filed a brief and a motion to withdraw with this Court, stating that his review of the record
yielded no grounds of error upon which an appeal can be predicated. See id. Counsel’s
brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief
need not specifically advance 'arguable' points of error if counsel finds none, but it must
provide record references to the facts and procedural history and set out pertinent legal
authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus
Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court's judgment. Counsel has informed this Court, in writing,
that counsel has: (1) notified appellant that counsel filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
2
of appellant’s rights to file a pro se response,2 review the record preparatory to filing that
response, and seek discretionary review if the court of appeals concludes that the appeal
is frivolous; and (4) provided appellant with a form motion for pro se access to the
appellate record, lacking only appellant’s signature and the date and including the mailing
address for the court of appeals, with instructions to file the motion within ten days. See
Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318–19, Stafford: 813 S.W.2d at 510 n.3;
see also In re Schulman, 252 S.W.3d at 409 n.23.
In this case, appellant filed neither a timely motion seeking pro se access to the
appellate record nor a motion for extension of time to do so. No pro se brief was filed.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). A court of appeals has two options when an Anders brief and a
subsequent pro se response are filed. After reviewing the entire record, it may:
(1) determine that the appeal is wholly frivolous and issue an opinion explaining that it
finds no reversible error; or (2) determine that there are arguable grounds for appeal and
remand the case to the trial court for appointment of new appellate counsel. Bledsoe v.
State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable
grounds for appeal, it may not review those grounds until after new counsel has briefed
2 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the
court those issues which the indigent appellant believes the court should consider in deciding whether the
case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008)
(quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
3
those issues on appeal. Id.
We reviewed the entire record and counsel’s brief, and we find nothing that would
arguably support an appeal. See id. at 827–28 (“Due to the nature of Anders briefs, by
indicating in the opinion that it considered the issues raised in the briefs and reviewed the
record for reversible error but found none, the court of appeals met the requirement of
Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no
reversible error in the record. Accordingly, the judgment of the trial court is affirmed.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney asked this Court for permission to
withdraw as counsel for appellant. See 386 U.S. at 744; see also In re Schulman, 252
S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas
1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he must withdraw from
representing appellant. To withdraw from representation, the appointed attorney must
file a motion to withdraw accompanied by a brief showing the appellate court that the
appeal is frivolous.”) (citations omitted)). We grant counsel’s motion to withdraw.
Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of
this opinion and this Court’s judgment to appellant and to advise him of his right to file a
petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also In re Schulman, 252
3 No substitute counsel will be appointed. Should appellant wish to seek further review of this
case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review
must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or
timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any
petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R.
68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
Procedure 68.4. See id. R. 68.4.
4
S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
2nd day of September, 2016.
5 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4141883/ | ! -.
‘_ 5i
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Tour rotter O?
our opialoa the ioll
-1 .
Honorsblo XurphP Qle, Page a
18 used in aooordanae with the tame and oon-
Qitionr above set out, and I do hereby bind
myself, my helm, rxeoutore and ldmlnIstrator8,
to Warrant and Forever Ihdand all and singular
the 4414 premises .onto the said Albert County,
againet every poreon wbo8soever 14wfllr-I P olalm-
ing, or to olalu the same or any part ‘thereof*.
Tim rlll 4bovr mentioned, an4 a deed which
18 quoted from above, oonvey8 srveral traots
of real sstate, Inoludlhg acreage propOrtles
resldenoe properties, and oomsrrolal propertjes
in Liberty end Chambers Counties.
*Both the ~111 as4 the deed state tb4t the
revenues from such properties MJ be used ior
re-Investmint, vepalrs, oonstruotion ot rental
properties, or oonstruotion of hospital faail-
Itles, and/or aalntenahoe and 414 in operation
~oi any oounty hospital whloh nay be establlehed.
The principal however m47 be ared only for mr-
aanent construction of 4 hospital bulldIng.
*In other words it is our Interpretation
that the County has bkorlted a nuubsr of prop-
lrtlos whloh my be used ior the purpoee or
lreotion and 41Q In saintainlhg, or the endow-
ment of 4 hospital or mealoal and treatment
oenter.
sTour opinion 18 sought as to whether or
not the properties 80 o o nveyed
a relubjeotto
ad valorem tax.8 to th? State, County, or any
other polltioal subdIvision or munlclpallty.
Ylss Kersting died’ lfovember as, 1941, sn4
on suoh date there were taxrs already past duet
444 therefore Irhould llko for your rullsg to
lnolutle the sUbjeot o? taxation both before 446
after suoh date, whloh is the date that title
pure4 to the oouatf.”
Artlole VIII, Seotlon 9, Constitutfon of Texas,
provider, in part, that =the Leglelaturo may, b;l general
laws, exempt $rom taxation pub110 propertq rued ior poblio
DQrposes. e
_..
:
I- Boaorsbls Itrrphr 0018, Psge 8
I provl4..
Artlole Xl, Zkotlon *, Constltutloa
8. ?0110w.:
of T4x48,
of oountles, oltlmi snd towns,
owned‘The
and gloper3
eld o p for pub110 purposee, SUCII
se ublla buIldIngs snd the sltas thsrefo?, Tire
utg Pnes and ths fornlture thereof, snd sll prop-
arty used, or Inten4ed for ortIngul8hl.g fin.,
publI0 grounde sn4 all other property devoted
exo2uslvely to.the us8 snd benefit of tha Inabllo
shsll be exempt from forord ssle is4 ?rm tum-
tloa, provI4e4, nothlag hsnla shsll pnvont the
lnroroeaent o? the vendors lien, the neahsaIo8
or builders lion, ,or other liens nsw sx18tlng.a
Pursuant to ths sbovs oonstitutl.onsl provlslons
the Legislature a? !km4s rsoogalsed the ‘?ollawlag exemption
front tsxstion, whloh we quote, In part, iror 4tIols 7150,
Vernon*& Tsxae Civil Statutes,
The rollowIng property shll bo lxsapt
from tsx4tloa. to-wltr
r* * z
NPubllo proper&. - All property whether
real or pernonal, belonging exaluslvsly to this
State, or any polIt~osl.,~b4lvIslon thereof, or
I, “. the United States, .
ft is apparent Srom an er4mIn4tlon o? the quoted
tenun of the last will rob tsstsment o? Miss Pettl* Kerstlag,
4evlslsg the property in quortion, and of the ,babondum olauee
of the doe4 oanveplng suoh tipertp, alscquoted that Llbsrty
Oounmt~ on and after tbs 25rg day of I-Member 1941 beosms
the o wnero fsuc h p r olrtlss, and they .were bevoted to 8 pub-
1Io purpose, within tg l o o ntemp la tlo n 8a4 purview of the coa-
stitutlonsl and ntatutorr DrOViEiOM shove 44verteU to, so
I se to be ezempt fr6m MU valoram t-axes.
However, thle kxsmpt btstub wwlQ not aperats
/ retmaotlvely to aonfer my sxsmptlon ?roa ad vslorcmi tares
upon the owner or owners o? this rssl eststo whloh might sl-
ready hsvs aoorued and bsoome 4elInpuent for prior years,
unless, or oourss, the thea owmrs were entitled to exemption
from ad valors~ tars8 under other pertinent provision8 o? the
I 0onetltutlon an4 statutes. Inssmuoh l e you do not point to
44 suoh statue, we assume that sona lslsts la snswerlng t&t
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the ownsr or owners of this realty,prior to Novembsr 22,
1941, when title was osst upon thr County of Llbsrtr,would
be liable ior 4Q valoren taxes 4corulng, usdir oontrolllng
statutes, 1, 1941, for said p34r, snd for all
a8 0s January
delinquenttaxee oi prior ye&r81 but ad valorem taxes there-
on for the rear 1942 and subsequsntysars would not be &us
and oollrotlblerrom ths Countyor Llbertr,lo long ss ths
oondltlonsobtaln Allah woulil aedntaln the title to suoh
property in Liberty Oountr under the devlee ad oonvsy4nos
reterredto.
Trustingtb, foregoing rtiif answers your lnqulriee,
wo 4re | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1782847/ | 163 So. 2d 442 (1964)
A. C. RIGDON et al., Plaintiffs-Appellees,
v.
MARQUETTE CASUALTY COMPANY et al., Defendants-Appellants.
No. 10162.
Court of Appeal of Louisiana, Second Circuit.
April 1, 1964.
Rehearing Denied April 30, 1964.
Writ Refused June 26, 1964.
*443 Morgan, Baker, Skeels & Coleman, Shreveport, for Marquette Cas. Co. and New Hampshire Fire Ins. Co., defendants-appellants.
Gahagan & Gahagan, Natchitoches, for Houston Fire and Cas. Ins. Co., defendant-appellant.
Bethard & Bethard, Coushatta, for A. C. Rigdon and T. S. Rigdon, plaintiffs-appellees.
Before GLADNEY, AYRES and BOLIN, JJ.
AYRES, Judge.
Our esteemed brother of the district court has so ably stated the issues, reviewed the facts, and applied the law that, although urged to the contrary, we, from our own consideration of the record, are unable to point out manifest error in the conclusions reached by him. We therefore adopt a major portion of his opinion as our own.
"This action is brought by plaintiffs, A. C. Rigdon and T. S. Rigdon, against Marquette Casualty Company, New Hampshire Fire Insurance Company, and Houston Fire and Casualty Insurance Company to collect the proceeds allegedly due on three certain fire insurance policies written by them, as follows: Marquette Casualty Company, $2,000; New Hampshire Fire Insurance Company, $3,000; and Houston Fire and Casualty Insurance Company, $5,000.
"In plaintiffs' petition recovery is sought of $7,500 under the terms of the policies, and this amount is sought on a pro rata basis of the face amount of the respective policies. Plaintiffs alleged that this amount is the value, or replacement cost, of the dwelling destroyed by fire during the term of all the policies.
"Additionally, statutory penalties of 25 percent are sought on the ground *444 that the defendants acted arbitrarily, capriciously and without probable cause in failing to pay the plaintiffs the proceeds under the policies.
"The facts are briefly these: Plaintiff, A. C. Rigdon, obtained, on May 2, 1961, a fire insurance policy from Marquette Casualty Company, through the Tyler Insurance Agency of Coushatta, in the amount of $2,000. On June 13, 1961, he obtained a policy in the amount of $3,000 from New Hampshire Fire Insurance Company, through C. E. Edgerton Agency, Inc., of Coushatta. Neither company knew of the existence of the other policy.
"This, of course, made a total amount of fire insurance of $5,000. This was the amount the plaintiff was seeking on his property.
"Under an avowed purpose of desiring to obtain his insurance coverage in one policy, sometime in November, 1961, plaintiff contacted the Womack Agency of Hall Summit, owned and operated by Elton L. Womack, with the request that a policy of fire insurance be written on his dwelling in the amount of $5,000. On February 8, 1962, a fire policy in this amount was written by Womack Agency in Houston Fire and Casualty Insurance Company. It was mailed to plaintiff but not received by him until after his property was destroyed by fire on the night of February 9, or early morning hours of February 10, 1962.
"This court finds as a fact that plaintiff, A. C. Rigdon, disclosed to Womack that he had policies outstanding in the amount of $5,000 issued by Tyler and Edgerton Agencies. Womack admits having knowledge of the Edgerton policy, but denied knowledge of the policy issued by Tyler. There would be no reason for Rigdon to disclose the $3,000 policy issued by Edgerton and withhold information about the $2,000 policy issued by Tyler. He advised Womack that he would cancel these policies, presumably at their anniversary date.
"At the time the residence of plaintiff was destroyed by fire, he was a patient in a hospital in Coushatta. Mr. Elton L. Womack testified that no one knew, and certainly the plaintiffs did not, that this policy was written by him. So emphatic in this was Mr. Womack that he testified not even his own wife knew this, and she works with him in the agency.
"Proof of loss was submitted to collect the proceeds of these three policies, but payment was denied and the claim rejected.
"This action is defended by all three defendants, mainly on the ground that the prohibition against OTHER INSURANCE was violated and that this violation resulted in an increase in the moral hazard of the risk. This is the only serious defense to liability of the defendants, and the only defense which this court considers worthy of discussion.
"It is true that all three policies contain a prohibition against other insurance. However, a breach of that policy condition alone will not suffice unless the violation is brought with the provisions of LSA-R.S. 22:692, which provides:
"Breach of warranties and conditions of fire policies and applications therefor
"`No policy of fire insurance issued by any insurer on property in this state shall hereafter be declared void by the insurer for the breach of any representation, warranty or condition contained in the said policy or in the application therefor. Such breach shall not avail the insurer to avoid liability unless such breach (1) *445 shall exist at the time of the loss, and be either such a breach as would increase either the moral or physical hazard under the policy, or (2) shall be such a breach as would be a violation of a warranty or condition requiring the insurer to take and keep inventories and books showing a record of his business. Notwithstanding the above provisions of this Section, such a breach shall not afford a defense to a suit on the policy if the fact or facts constituting such a breach existing [sic] at the time of the issuance of the policy and were, at such time, known to the insurer or to any of his or its officers or agents, or if the fact or facts constituting such a breach existed at the time of the loss and were, at such time, known to the insurer or to any of his or its officers or agents, except in case of fraud on the part of such officer or agent or the insured, or collusion between such officer or agent and the insured. Amended and reenacted Acts 1958, No. 125.'
"The phrase that captures our attention is "* * * Such breach shall not avail the insurer to avoid liability unless such breach (1) shall exist at the time of the loss, and be either such a breach as would increase either the moral or physical hazard under the policy, * * *'
"No contention is made that there is any increase in the physical hazard because such is not applicable to this type violation.
"44 C.J.S. Insurance Section 49, page 498, defines Hazard; moral hazard, as follows:
"`Hazard, in insurance law, is the risk, danger, or probability that the event insured against may happen, varying with the circumstances of the particular case, the incurring of the possibility of loss or harm, for the possibility of a benefit. Moral hazard, as respects fire insurance, is the risk or danger of the destruction of the insured property by fire, as measured by the character and interest of the insured owner, his habits as a prudent and careful man or the reverse, his known integrity or his bad reputation, and the amount of loss he would suffer by the destruction of the property or the gain he would make by suffering it to burn and collecting the insurance.'
"Our Supreme Court of Louisiana, in interpreting LSA-R.S. 22:692 (formerly Act 222 of 1928), in Lee v. Travelers Fire Insurance Company, 219 La. 587, 53 So. 2d 692, made the following comment:
"`Heretofore, this court has had occasion to interpret these provisions.
In Knowles v. Dixie Fire Insurance Company of Greensboro, North Carolina, 177 La. 941, 149 So. 528, 531, the plaintiff sought recovery on an insurance policy for the loss by fire of insured personal property. The defense was that there existed at the time of the loss an undisclosed encumbrance on the property in violation of the policy's chattel mortgage clause. In favoring plaintiff's demand the court announced certain principles respecting the proof required under the 1928 statute as follows:
"`In view of the plain provisions of this act, the fact alone that the personal property covered by the policy is or becomes incumbered by a chattel mortgage does not of itself void the policy. On the contrary, if a violation of the chattel mortgage clause in the policy is pleaded as a defense, the insurer must show that a breach of the warranty or condition in this respect did in fact increase the moral hazard. Defendant in this case made no effort to show that the moral hazard was increased, *446 but defended upon the sole ground that the property insured was incumbered at the time of the loss.
* * * * * *
"`"Under Act No. 222 of 1928, p. 291, the question whether the existence of the chattel mortgage on the property subject to the insurance at the time of the loss increases the moral hazard is one of fact which must be determined by the circumstances surrounding each case.
"`"In order that an insurer may avoid liability under a fire policy on the ground that the moral hazard was increased by a breach of the warranty contained in the chattel mortgage clause, it carries the burden of showing that the changed conditions brought about by the imposition of the mortgage were of such real and substantial character as might influence the insured in his conduct and attitude toward the property. The term `moral hazard' as used in the act and in the decisions relates to the pecuniary interest which the insured or some other person has either in protecting the property from loss by fire or destroying it. The moral hazard is least when the pecuniary interest of the insured in protecting it is greatest. It is greatest when his pecuniary interest is such that he might gain most by burning it. * * *
* * * * * *
"`"If the property insured is mortgaged for an insignificant amount, an amount out of all proportion to its value, it is not probable that the mere fact of the existence of the mortgage would be an inducement or temptation to the owner for burning it. He would have no pecuniary interest in doing so. On the contrary, if he were able to secure a mortgage on the insured property for its full value or an amount approximating its value, he would gain by destroying it. In such case he would have no interest in protecting it, and might gain by destroying it. * * *
"`"Another feature which might enter into the question whether the existence of a mortgage on the property at the time of the loss would increase the moral hazard would be whether the owner was able to make his payments. If he were not and had lost hope, a burn might be a relief, and the mortgagee might feel the same way.
"`"Another circumstance to be considered would be whether the amount of the mortgage at the time of the loss had been reduced from its original amount and to what extent. Under the act, it is not the amount of the mortgage as originally given which is to be considered but the amount `at the time of the loss.'
"`"What the act means is that, if at the time of the loss, not at any previous time during the life of the policy, there exists such a breach as would reasonably be said to increase the moral hazard, then the policy is void. No hard and fast rule can be laid down as to when such a breach exists. Each case must be determined according to its own facts and circumstances, and this is true whether the hazard be moral or physical. In either event, a plea that the policy has been rendered void by such a breach is a special defense which defendant must maintain in order to avoid liability. * * *"'
"`The 1928 statute was considered again in Brough v. Presidential Fire & Marine Insurance Company, 189 La. 880, 181 So. 432, 434, the defense to the action on a fire insurance policy therein being that the insured building was *447 not on ground owned by the plaintiff in fee simple as required by the contract. The court quoted from the Knowles case and said: "In view of the plain provisions of Act 222 of 1928, the fact alone that plaintiffs did not have a fee-simple title to the ground upon which the insured building was erected does not of itself void the policy. On the contrary, if a violation of the clause as to ownership in fee simple by the insured is pleaded as a defense, the insurer must show that a breach of the warranty or condition in this respect did in fact increase the moral hazard. Defendant company in this case made no such defense, but relied on the sole ground that plaintiffs did not have a title in fee simple to the ground on which the insured building was erected."
"`The Court of Appeal of the Orleans Circuit followed the Knowles and Brough cases in Rickerfor v. Westchester Fire Insurance Company of New York, 186 So. 109, 111, and with reference to them it observed:
"`"* * * Our appreciation of the court's opinion in the Brough Case is that the Act of 1928 affords an escape to the insurer only in cases where the surrounding circumstances existing at the time of the loss were such as to warrant the conclusion that the insured would be in a better position, in the event his property was destroyed by fire, then [sic] he would have been if the fire occurred at the inception of the contract and that the insured's more favorable position at the time of the loss is directly attributable to his false representation. By this, we do not mean that the insured must necessarily gain as a result of the loss but that the false representation, when considered in connection with the circumstances existing at the time of the loss, was such as to sustain a holding that the insured would suffer less by a destruction of the property than would ordinarily be the case in the absence of his breach.
* * * * * *
"`"* * * The Supreme Court has stated in the Knowles and Brough Cases that, where an insurance company seeks to avoid liability because of the breach of a material warranty contained in the policy, the defense must be pleaded specially and that the insurer has the burden of proving by a preponderance of evidence that the breach did increase the moral hazard of the risk. Inasmuch as that court has also said that the mere breach is of itself insufficient to establish the increase of hazard, it is necessary for the insurer to set forth the particular circumstances existing at the time of the loss upon which it relies to show that the hazard was in fact increased. * * *'"
"This court finds as a fact that the plaintiff, A. C. Rigdon, disclosed to Elton L. Womack the existence of the other insurance. Therefore, under the very provisions of LSA-R.S. 22:692, supra, the defense is untenable for Houston Fire and Casualty Insurance Company.
"As to the other defendants, as between themselves, the existence of each policy against the other, there was no increase in the moral hazard of the risk. These defendants have not sustained the burden of proving that the value of the plaintiff's residence was such that $5,000 in insurance was more than adequate to cover the risk.
"Next, the court will consider what effect the existence of the Houston Fire and Casualty Insurance Company policy will have in increasing the moral hazard of the risk of defendants, Marquette and New Hampshire. It is true that $10,000 worth of insurance on *448 a $7,500 residence presents a serious question of increase in moral hazard. The Supreme Court has said in Knowles v. Dixie Fire Insurance Company of Greensboro, North Carolina, supra, that `No hard and fast rule can be laid down as to when such a breach exists. Each case must be determined according to its own facts and circumstances, and this is true whether the hazard be moral or physical.'
"The question in this court's mind is this: How can the moral risk be increased under the peculiar facts and circumstances of this case when the plaintiff had no knowledge whatever that the Houston Fire policy had been written? The thought or vein running through all the cases on this question of moral hazard and the increase thereof is the operation of an awareness or a consciousness that one would be better off if a loss occurred, and there exists a dullness of sensibilities to prevent the occurring of a loss. Plaintiff, A. C. Rigdon, was sick in the hospital unaware of the existence of the fact that allegedly has increased or made undersirable the risk assumed by the insurance companies in issuing the fire policies in question.
"The defendants have not sustained the burden of showing an increase in moral hazard such as would allow them to escape liability under the provisions of LSA-R.S. 22:692, supra."
We are nevertheless of the opinion that the issuance of the policy by the defendant Houston Fire and Casualty Insurance Company did not constitute a contract of insurance between it and the named assured. The issuance and submission of this policy were, under the facts of this case, in the nature of a counter-proposal which was never accepted by the proposed assured.
As heretofore observed, during November, 1961, plaintiff contracted this defendant's agent and requested that a fire insurance policy be written on his dwelling in the amount of $5,000. The purpose expressed by plaintiff Rigdon was that he desired to consolidate his insurance in one policy affording coverage in that amount. After a lapse of several months, and finally on February 8, 1962, this defendant's policy was mailed by its local agent to the proposed assured. This policy was accompanied by a note of defendant's agent to plaintiff Rigdon which read:
"A.C.
"Sorry this is late but I had to do some maneuvering to make sure it wouldn't be cancelled. If I'm too late, just send it back and thanks a million for remembering me."
Indicative of the language used and the delay ensuing after Rigdon contacted defendant's agent is the thought that Rigdon might not want the policy then and that it was forwarded for his acceptance or rejection. The language of the notation indicates rather clearly that the agent's communication and policy were merely an offer to insure.
As in the case of contracts generally, it is prerequisite to the creation of a contract of insurance that there be an offer or proposal by one party and an acceptance by the other. While such an agreement usually is effected by an offer by one seeking insurance through an application and its acceptance by the company, such procedure is not exclusive. An offer or a counteroffer to insure may be made by an insurer to a proposed insured. Thus, where the company, instead of accepting an application for insurance, makes a counteroffer or proposition, this may be accepted or rejected by the applicant, or proposed, insured at his pleasure. Until accepted, the proposal does not become a contract. The acceptance of such a proposal must be shown by some act binding on the party accepting beyond a mere mental resolution *449 to that effect. The general rule is as stated in 44 C.J.S. Insurance § 232, p. 980:
"* * * Where the proposal to insure comes from the insurance company, it must be accepted by the person to be insured, who must notify the company of his acceptance; and if his acceptance is sent by mail the risk begins when the letter of acceptance is mailed. An acceptance after the fire occurs comes too Alate." (Emphasis supplied.)
The rule is recognized in this State that generally contracts of insurance are conditioned upon the existence of the subject of insurance at the time of contracting. Broome v. State Farm Mutual Automobile Ins. Co., La.App., 4th Cir., 1963, 152 So. 2d 827; LSA-C.C. Arts. 1823, 1833, 1896.
Moreover, the policy was issued under a suspensive condition. This is made certain by both plaintiff A. C. Rigdon and defendant's agent, Elton Womack. Rigdon testified, on learning that Womack, a friend of his, was selling insurance, he resolved to place his insurance with Womack and consolidate the two policies already covering his residence into one policy, if Womack could issue a policy for $5,000 covering the residence. Rigdon explained he was not trying to get "double" insurance. Then followed this series of questions and answers:
"Q. Did you tell Mr. Womack that, if he would issue the policy, you would cancel the other policies?
"A. I did.
"Q. In other words, it was your intention to have only five thousand dollars insurance on the house?
"A. That was my intention.
* * * * * *
"Q. Now, did you make an agreement with Mr. Womack concerning the cancellation of other insurance that you have?
"A. Yes, Sir. I told him that I would cancel the other two policies if he would give me five thousand ($5,000) [insurance]."
From this testimony, it can only be concluded that the policy issued by the defendant Houston Fire and Casualty Insurance Company was to become effective upon the cancellation of the two prior policies. These former policies were never canceled by plaintiffs. In fact, this defendant's policy was not received until the subject matter of the proposed insurance had been destroyed by fire. The condition upon which the policy was to become effective was not complied with.
We therefore conclude there was no effective, binding contract of insurance between defendant Houston Fire and Casualty Insurance Company and plaintiff Rigdon at the time the fire occurred, destroying his residence.
We may further observe that two of the defendants question the interest of T. S. Rigdon as an assured. In this regard, we may point out there is no contention between A. C. Rigdon and his father. Both testified that the residence was the property of A. C. Rigdon. This fact was explained to defendants' agents before or at the time the policies were issued. It was through the agents' suggestions that T. S. Rigdon, inasmuch as he was the owner of the land upon which the building was located, was designated the insured. There was no misrepresentation made by A. C. Rigdon to these defendants; they, through their agents, were fully informed of the facts. It would not appear that defendants could, under these facts, in good conscience, rely upon this defense; they are precluded and estopped from so doing.
Moreover, it may be observed that T. S. Rigdon is not wholly without an insurable interest. Under LSA-C.C. Art. 508,
*450 "When plantations, constructions and works have been made by a third person, and with such person's own materials, the owner of the soil has a right to keep them or to compel this person to take away or demolish the same. * * *"
This article further provides:
"If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby. * * *"
Therefore, it cannot be said that A. C. Rigdon did not also have an insurable interest.
We held in The Forge, Inc., v. Peerless Casualty Company et al., La.App., 1961, 131 So. 2d 838, that the valued policy law precludes insurers from questioning the extent of the interest of an insured and requires payment to the insured of the full face value of the policy in the event of total loss, even though the interest of the insured is less than full ownership.
Plaintiffs' demands for penalties and attorneys' fees were rejected for the lack of proof that the defendants were arbitrary and capricious and were without probable cause in their refusal to recognize the claims of the plaintiffs under the policies. The defenses urged were serious and presented in good faith. Hence, we find no merit in the matters encompassed in plaintiffs' answer to the appeal.
Accordingly, for the reasons assigned, it is Ordered, Adjudged, and Decreed that plaintiffs' demands as against the defendant Houston Fire and Casualty Insurance Company be, and they are hereby, rejected, and, as thus amended, the judgment appealed is affirmed. Plaintiffs are assessed with the cost of this appeal.
Amended and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3430953/ | [1] On December 11, 1940, appellant instituted this suit and secured possession of the automobile by writ of replevin. The petition alleges appellant's qualified ownership of the automobile as the owner and holder of the conditional sale contract and note of date October 5, 1940, executed by appellee as conditional purchaser; that said contract and note provide for payment by appellee of $41.52 every month starting November 5, 1940, and in case of default in such payment, the holder of the contract may take immediate possession of said property; and that by reason of appellee's failure to make said payment on November 5, 1940, appellant is entitled to the possession of said automobile. Copies of the note and contract were attached to the petition and said instruments were thereafter placed in evidence. Although the answer was a general denial, the real issue was whether the first installment payment was due November 5, 1940, as pleaded by appellant, or would not be due until November 5, 1941, as contended by appellee.
The conditional sale contract of date October 5, 1940, states *Page 735
that the dealer sold to appellee a new Hudson automobile for $375 paid down, and $996.88 to be paid,
"* * * at the office of INTERSTATE FINANCE CORPORATION, at DUBUQUE, IOWA, as evidenced by one negotiable promissory note of even date, payable to the order of the bearer, and signed and delivered by said purchaser to the dealer, * * * payable at the rate of $41.52 every Month starting Nov. 5, 1941 until the entire sum is paid * * *"
The contract contains clauses reserving title in the dealer until the purchase price is fully paid, providing for immediate repossession in case of default, and other clauses, not here material, frequently found in conditional sale contracts.
The note is, in part, as follows:
"SCHEDULE OF INSTALLMENTS
"$996.88 Manchester, Iowa, October 5, 1940
"$41.52 to be paid Nov. 5, 1940 and a like amount to be paid each 30 days thereafter, or according to the following schedule, due on the 5th day of each month after date. * * *
"For value received the undersigned do jointly and severally promise to pay to the bearer the sum of Nine Hundred Ninety-Six and 88/100 Dollars at the time or times stated in the SCHEDULE OF INSTALLMENTS hereon at the office of the INTERSTATE FINANCE CORPORATION, in Dubuque, Iowa. * * *
"If any installment of this note is not paid at the time and place specified herein, the entire amount unpaid shall be due and payable forthwith at the election of the holder of the note. * * *
"This note is secured by Conditional Sale Contract of even date on a certain Motor Vehicle.
"PURCHASER, Paul Brink."
Appellant made formal proof of the execution of the note and contract and it was stipulated that appellee had paid nothing except the $375 down payment. Appellee raised no specific issue relative to the variance in the contract and note. Nor did he attempt to offer evidence to explain the same or to assign any reason therefor. It was and is his position that the replevin suit must necessarily be founded upon the contract *Page 736
alone and that under the terms of said contract no installment payment would have been due until November 5, 1941. He asserts the note is merely evidence of the indebtedness and is not material evidence as to the right of possession.
[2] It is true the sole issue in the case is the right of possession. But it is not open to serious question that, in determining such right of possession, the note and contract, if part of the same transaction, should be interpreted together. Hubbard v. Wallace Co., 201 Iowa 1143, 1147, 208 N.W. 730, 732, 45 A.L.R. 1065, states:
"It is the rule, well settled in this state, that instruments relating to the same transaction and contemporaneously executed will be construed together." (Citing authorities.)
Fetes v. O'Laughlin, 62 Iowa 532, 534, 17 N.W. 764, 765, refers to this doctrine as "a familiar rule of the law." In the language of Restatement of the Law, Contracts, section 235 (c), all writings forming part of the same transaction are interpreted together.
Appellant showed by parol evidence, which was uncontradicted, that the note and conditional sale instrument were executed at the same time. The general rule concerning such parol evidence is stated in 32 C.J.S. 868, 869, section 946, as follows:
"Parol evidence would seem to be always permissible to connect an instrument containing an obligation to pay money with another instrument evidencing the giving of security for, or a guaranty of, payment, as this is in effect nothing more than identifying the subject matter of the latter instrument, or explaining an ambiguity, and the latter instrument is usually of such a character as to show that it does not, standing alone, evidence the complete agreement of the parties; and this is true even though the note or other obligation produced does not in all particulars correspond with a description thereof in the mortgage or other writing."
See, also, Iowa Sav. Bk. v. Graham, 192 Iowa 96, 181 N.W. 771; Paine v. Benton, 32 Wis. 491.
In this case the contract of conditional sale refers to the *Page 737
note as evidencing the obligation of appellee, and the note likewise refers to the conditional sale instrument. We conclude the instruments themselves, together with the testimony that they were executed at the same time, establish their connection, notwithstanding the discrepancy in maturity dates. Therefore, they should be interpreted together. Thus, the issue becomes narrowed to the interpretation of the contract evidenced by the two instruments. No rights of third parties are here involved.
In Mowbray v. Simons, 183 Iowa 1389, 1392, 168 N.W. 217, 218, this court said:
"It has been generally held by the courts that the provisions of the note and of the mortgage given to secure the payment thereof, must be construed together and enforced accordingly, where this is possible. It is also the general, if not universal, holding that, where there is a conflict between the terms of the note and mortgage as to the maturity of the former, its provisions must control. This proceeds upon the theory that the mortgage, executed for the purpose of securing the payment of the note, is an incident thereto, and not the primary obligation." (Citing authorities.)
Wilson v. Tolles, 210 Iowa 1218, 1224, 229 N.W. 724, 727, thus states the rule,
"The note is the principal or primary contract or obligation. The mortgage is an incident. In case of conflict, the terms of the note prevail."
In Coffin v. Younker, 196 Iowa 1021, 1024, 195 N.W. 591, 592, this doctrine is said to be "the general holding."
It is stated in 36 Am. Jur. 748, section 123:
"Where, however, there is an irreconcilable difference between the terms of notes or bonds and of mortgages or deeds of trust given to secure them, the terms of the former control."
Among numerous authorities sustaining the rule are Indiana
I.C. Ry. Co. v. Sprague, 103 U.S. 756, 26 L. Ed. 554, and Smith v. Kerr, 130 Me. 433, 157 A. 314, which cites many supporting authorities. See, also, 46 L.R.A., N.S., 477, note. *Page 738
Ferris v. Johnson, 136 Mich. 227, 229, 98 N.W. 1014, 1015, is factually quite similar to the case at bar. The cited case was a replevin suit, brought by the holder of a chattel mortgage in which the question of default in payments turned upon whether the maturity dates were governed by the terms of the notes or the mortgage, which were in conflict. The court said:
"While a mortgage may modify the contract, an irreconcilable contradiction by the mortgage of the terms of the note cannot be allowed to affect the contract as shown in the note. The indebtedness is represented by the notes, which constitute the primary contract. To these the mortgage is collateral, and to them it refers for the purpose of identification of the debt and contract, performance of which is secured by the mortgage. Mistakes in such descriptions are not necessarily fatal." (Citing authorities.)
Among cases discussing the nature and elements of conditional sale contracts are, Hansen v. Kuhn, 226 Iowa 794, 285 N.W. 249, and Craddock v. Bickelhaupt, 227 Iowa 202, 288 N.W. 109, 135 A.L.R. 474.
The doctrine enunciated in Mowbray v. Simons, supra, and other cited authorities, is here applicable. As thus interpreted, the contract required a payment November 5, 1940. Upon default, appellant was entitled to the possession of the automobile. Under the record the court should have directed a verdict against appellee. This conclusion renders unnecessary the consideration of other errors assigned by appellant. — Reversed.
WENNERSTRUM, C.J., and GARFIELD, MILLER, BLISS, HALE, and STIGER, JJ., concur. *Page 739 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430954/ | The proceedings herein were instituted pursuant to sections 11984 and 11985 of the Code, 1931. Section 11984 provides that if an executor fails to make any payment in accordance with an order of court, any person aggrieved thereby may, on 10 days notice to him and his surety, apply to the court for judgment against them on their bond. Section 11985 provides that the court shall hear the application in a summary manner and may render judgment against them for the amount of money directed to be paid. The word "summary" is sometimes interpreted as analogous to the word "brief". Such interpretation has no application to the record herein. Appellants' abstract comprises 653 pages, without the index. It was deemed insufficient and appellees have filed an amendment thereto, which, in turn, was denied by appellants, resulting in the certification to this court of a voluminous record for our perusal. The principal facts shown by such record are the following:
Emma Tabasinsky died testate October 31, 1929. Her will, *Page 1107
which was executed July 16, 1929, was admitted to probate November 18, 1929. It provided for the payment of debts and expenses, made a bequest of $500 to a grandson, Pierre Salzer, and divided the balance of the estate equally among four surviving children, claimants herein, with a provision that the share of the son, Roy, should be held in trust by the Springville Savings Bank, and, if he should die without issue, his share should be paid to the other three children. The Springville Savings Bank was named executor and qualified as such on November 26, 1929, by filing a bond in the sum of $60,000 with the Southern Surety Company as surety. The appraised value of the estate was $72,432. The inventory showed various certificates of deposit, several being on the Springville Savings Bank, together with stocks, bonds and other property. The first report of the bank, as executor, filed February 9, 1931, showed a cash balance of $24,688.43.
On December 13, 1930, the four adult children of the testatrix entered into a stipulation of settlement, the purpose of which was to abrogate the trust created for the share of Roy. On December 16, 1930, this agreement was submitted to the court with an application that the estate be disposed of pursuant thereto. The bank, as executor, resisted the application. The matter remained in abeyance until February 1932, when negotiations between the four children and the bank resulted in the execution of a stipulation of settlement on February 4, 1932, which provided that the trust created for Roy's share be set aside, the bank be paid $2,000 for services as executor, its attorney be paid $1,000, all costs and expenses of administration and the legacy to Pierre Salzer be paid and the balance of the moneys and personal property be divided equally among the four adult children; the bank was to distribute the moneys in its hands in monthly partial payments of $2,500 and upon default the entire balance would be due and payable, the bank to pay 4 percent interest from November 20, 1931, the personal property to be divided in kind as far as practicable, the bank to execute quitclaim deed to the real estate.
Paragraphs 8 and 9 provided as follows: *Page 1108
"8. Upon the division and complete distribution and final payment of the funds and all other real and personal property composing the estate, the Springville Savings Bank shall file a final report and be discharged as executor and trustee and shall be relieved from any and all liability to any of the parties hereto as trustee.
"9. This stipulation is binding upon the parties hereto only upon its approval by the District Court of Linn County, Iowa."
On the same day that it was executed, the stipulation was submitted to the court with an application for its approval and an order was entered which provided that "it is ordered that the said stipulation as herein filed be, and the same is hereby approved by the Court, and the trust attempted to be created by the will of deceased and imposed upon the said Springville Savings Bank is hereby set aside, and the said executor relieved from any duties, responsibilities and obligations thereunder, and the estate is to be settled and distribution made in accordance with the terms of said stipulation, and upon the execution and performance of the terms and agreements of the said stipulation the executor shall be discharged from all further liability and obligation either as executor or as trustee." On March 22, 1932, the Southern Surety Company having become insolvent and proceedings for its liquidation having been commenced, the court entered an order directing the bank, as executor, to file a new bond. Such a bond was executed and filed on May 18, 1932, in the sum of $60,000 with the United States Fidelity Guaranty Company as surety.
The bank was late in making its remittance under the stipulation of settlement for the months of February and March, defaulted in May, June and July, closed its doors on July 12th, and, on July 15, 1932, was adjudged insolvent, placed in receivership, and ordered liquidated.
The bank filed a second report as executor on July 9, 1932, showing cash on hand in the amount of $19,301.09. The balance on hand when the bank closed, according to its books, was *Page 1109
$17,551.42. On July 15, 1932, the bank was removed as executor and two of testatrix's children, Mabel T. Kirk and Dollie E. Tabasinsky, were appointed administrators with will annexed and qualified as such on August 3, 1932. The administrators filed a claim in the receivership of the bank, claiming a preference. The matter was tried out and on December 5, 1933, a decree was entered which provided "that the total amount of said trust fund which had not been accounted for by the said bank as Executor of the said Estate on the date of the closing of the bank was in the sum of Seventeen Thousand Five Hundred Fifty-one Dollars and Forty-two Cents ($17,551.42), as fixed in the said former decree, plus the sum of $3,502.26 as interest, making a total trust fund of Twenty-one Thousand Fifty-three Dollars and Sixty-eight Cents ($21,053.68)." The sum of $2,604.05 had been allowed as a preferred claim by an order of November 22, 1933, and the balance of $18,449.63 was allowed as a general claim to be paid out of the sums collected from stockholders on their stockholders' liability.
On July 3, 1934, an application was filed asking that the court determine the amount of funds in the estate for which the bank, as executor, had failed to account. On the same day, the court fixed the amount at $18,449.63 with interest from December 5, 1933, and directed payment thereof. Payment not being made, on July 5, 1934, these summary proceedings were commenced against the United States Fidelity Guaranty Company, as surety, asking for judgment for the amount ordered paid.
Voluminous pleadings resulted, in spite of which the matter was finally brought to trial on May 27, 1938. After the evidence was closed, on July 30, 1938, the surety was granted leave to file requests for findings of fact and conclusions of law authorized by section 11435 of the Code, 1935. On August 2, 1938, 31 such requests were filed. On August 20, 1938, the court filed its findings of fact and conclusions of law, which comprise 16 pages of the abstract. Pursuant to them, it fixed the liability of the surety in the sum of $23,362.08, entered judgment accordingly with provision that, upon payment of *Page 1110
the judgment by the surety, it would be subrogated to any and all claims which the claimants might have against D.W. Bates, receiver of the Springville Savings Bank. From this judgment, the surety has appealed, asserting assignments of error in 16 divisions and undertaking to support the same with a brief and argument of 468 pages.
[1] I. At the outset, it is important to note that this matter was tried to the court without a jury. The action is not in equity. Appellant recognized as much when it asked for and secured findings of fact and conclusions of law pursuant to section 11435 of the Code, 1935. Accordingly, on disputed questions of fact, it is neither our privilege nor duty to find the facts, but merely to determine from the evidence what the court was warranted in finding them to be. If any such finding of fact is supported by substantial, competent evidence, the finding of the court is binding upon us.
[2] II. Appellant's first assignment of error challenges the jurisdiction of the court to set aside a ruling made November 10, 1937, upon appellant's application to determine the law in advance of trial, pursuant to section 11131 of the Code, 1935. Two questions were presented by the application. The court's answer to the questions was that, upon the facts pleaded in appellant's answer being established, the transaction of February 4, 1932, would constitute an "investment", made pursuant to section 12772 of the Code, 1931, and appellant would not be liable thereon as surety. The ruling granted appellees an exception and 10 days to elect whether they would stand on the ruling or plead over. On November 13, 1937, the court granted appellees until November 25, 1937, within which to plead further, move for a new trial, or move to set aside and vacate or modify the ruling. On November 22, 1937, appellees filed a motion to vacate the ruling. On December 6, 1937, appellant filed a resistance thereto. On March 16, 1938, the court ordered the motion submitted with the case and reserved its ruling thereon until after the hearing. On July 30, 1938, after the evidence was closed, the court sustained appellees' *Page 1111
motion and vacated the ruling of November 10, 1937. We are satisfied that the court retained jurisdiction to decide the matter and to vacate such ruling. There is no merit in appellant's contention.
[3] III. Appellant next asserts that the ruling of November 10, 1937, should have been adhered to because, under the evidence, the transaction of February 4, 1932, constituted an investment, made pursuant to section 12772 of the Code, 1931, and a default in regard thereto would not make appellant liable therefor. There is no merit in this contention. We have held expressly that, for a guardian to claim the benefit of section 12772, it is necessary that the approval of the court precede the making of the investment. In re Guardianship of Nolan, 216 Iowa 903, 249 N.W. 648. The statute so provides, in plain terms. The investment of funds by the bank herein occurred long before the transaction of February 4, 1932. The statutory requirements were not met.
[4] IV. Appellant asserts that the transaction of February 4, 1932, constituted a termination of the bank's functions as executor, a novation or pro-tanto assignment, the creation of a debtor and creditor relationship, and a capacity other than that of fiduciary and beneficiary so that appellant was not liable for the bank's defaults in regard thereto. We find no merit in such contention.
The gist of appellant's contention is that the transaction of February 4, 1932, amounted to the equivalent of a distribution of the assets of the estate, and an accounting therefor by the executor, so that the executor was released and discharged thereby. To so construe the stipulation is to ignore or do violence to express provisions therein contained.
Paragraph 8 of the stipulation provides that, "upon the division and complete distribution and final payment of the funds and all other real and personal property composing the estate," the bank shall file a report and "be discharged as executor and trustee." The order of court, approving the stipulation, provided that "upon the execution and performance of *Page 1112
the terms and agreements of said stipulation, the executor shall be discharged." These provisions are clear. They must be considered and given effect. The contentions of appellant ignore them. But we cannot.
[5] V. Appellant contends that the transaction of February 4, 1932, complied with the provisions of section 9285 of the Code, 1931, constituted the selection of the bank as a depository, and the surety is not liable for its defaults as such. We find no merit in this contention.
We have held, repeatedly, that, where an executor or administrator was operating a private bank and deposited funds of the estate in such bank, he was accountable therefor in his fiduciary capacity and not as a depository. Estate of Kendrick,214 Iowa 873, 880, 243 N.W. 168; Bookhart v. Younglove, 207 Iowa 800, 807, 218 N.W. 533; McEwen v. Fletcher, 164 Iowa 517, 529, 146 N.W. 1, Ann. Cas. 1916D, 631. The same rule has been applied to a corporate bank and its surety. Snyder v. Hartford Acc.
Ind. Co., 214 Iowa 1055, 1057, 243 N.W. 343. Without undertaking to decide whether a bank that is the executor can qualify as a depository under section 9285 of the Code, we are satisfied that the order of February 4, 1932, did not meet the requirements of the statute. The stipulation provided that, upon final payment of the funds, the bank should be discharged as executor and the order provided that, upon performance of the terms of the stipulation, the executor should be discharged. This order was insufficient to change the status of the bank from that of executor to that of depository under section 9285.
[6] VI. Appellant asserts that, by the transaction of February 4, 1932, appellees ratified the maladministration of the estate that preceded said date and, having accepted the benefits of the transaction, are estopped to assert a claim against appellant. Had the bank performed its obligations under the stipulation, there might be some basis for appellant's contention. In view of the fact that the bank was in default thereunder when appellant's bond was filed, we see no merit therein.
VII. Various contentions are made in reference to charges *Page 1113
of fraud, asserted by appellees as a basis for avoiding any prejudice to their rights because of the transaction of February 4, 1932. Since we find that their rights were not prejudiced by such transaction, we need not consider such contentions.
[7] VIII. Appellant asserts that the decree, entered in the receivership of the bank, fixing the liability of the bank to appellees, is not binding upon appellant as surety for the bank. We see no merit in this contention.
In In re Estate of Sterner, 224 Iowa 605, 612, 277 N.W. 366, 370, we state:
"The general rule many times announced by this court is that a judgment or decree against an executor or administrator is conclusive against the sureties on the bond, although they were not parties to the proceedings and cannot be collaterally questioned by them in an action on the bond, their only remedy being by way of appeal, writ of error, or application for a new trial, unless fraud or mistake is shown in the procuring of said order or judgment. In re Estate of Jackson, 217 Iowa 1046, 1053, 252 N.W. 775, 91 A.L.R. 937; In re Estate of Carpenter, 210 Iowa 553, 559, 231 N.W. 376; Baker v. Baker, 220 Iowa 1216, at 1223, 264 N.W. 116, 120, 103 A.L.R. 995."
The court's finding, that no fraud or mistake was established in reference to the receivership decree, is warranted by the evidence. There is no merit in appellant's contention.
[8] IX. Appellant complains of the entry of the order of July 3, 1934, requiring the bank to account. This order merely fixed the amount of the bank's liability at the same figure which had been fixed by the decree in the receivership. There was no prejudice to appellant.
[9] X. Appellant contends that its bond was secured by fraud practiced upon it by the bank and that appellees were guilty of concealment which makes them parties to the fraud. An obligee is under no duty to make disclosures to a prospective surety, in the absence of inquiry by the surety, unless a fit opportunity is afforded. Sherman v. Harbin, 125 Iowa 174, 180, 100 N.W. 629. The court was warranted in holding as it did *Page 1114
that no such opportunity was afforded appellees. There was no breach of duty on their part. Appellant's contention is without merit.
[10] XI. Appellant asserts that the extension of time, given the bank by the transaction of February 4, 1932, releases it as surety. For an extension of time to discharge a paid surety, there must be prejudice shown. Appellant's bond was not executed until several months after February 4, 1932, and, when it was executed, the bank was in default under the stipulation of February 4, 1932, so that the whole amount was then due and payable. There is no merit in appellant's contention.
[11] XII. Appellant asserts that its bond was required of it pursuant to section 11888 of the Code, 1931, and accordingly it is not liable for devastavits, misappropriations or wrongful acts occurring prior to the date it was filed, May 18, 1932. We have heretofore answered such contention adversely. Brooke v. American Sav. Bk., 207 Iowa 668, 677, 223 N.W. 500; Bookhart v. Younglove,207 Iowa 800, 806, 218 N.W. 533; New Amsterdam Cas. Co. v. Bookhart, 212 Iowa 994, 1000, 235 N.W. 74, 76 A.L.R. 897; Ellyson v. Lord, 124 Iowa 125, 139, 99 N.W. 582. In the Brooke case we state (207 Iowa at page 677, 223 N.W. at page 504), as follows:
"By the great weight of authority, even where a so-called `substitute bond' is executed upon the valid release of the former sureties, the sureties on the latter bond are held liable for defalcation occurring prior to the time of the execution of said latter bond. The duty devolves upon the subsequent surety to ascertain to his own satisfaction with reference to the condition of the estate before binding himself as surety upon the bond. The obligation of the bond is to pay the funds of the estate to the person entitled thereto, upon the order of the court. There is no breach of this obligation until there is a failure to pay. The subsequent surety is not permitted by the law to bind himself to the performance of said duty and then say that the devastavit occurred prior to the time when he become liable on the bond. * * * Reason and the great weight of authority *Page 1115
impel us to hold that, although the bond may be a so-called `substitute bond,' the sureties thereon are liable for defalcation occurring prior to the time of its execution."
In Ellyson v. Lord, supra, we state (124 Iowa at page 139, 99 N.W. at page 588) as follows:
"Such a bond is security for the final accounting by the administrator for all funds coming into his hands during the administration, and it is immaterial whether the funds which he fails to account for were received before or after the execution of the bond. The breach of duty as to which the bond is given as security is the failure to make a final accounting. In this respect the bond of an executor or administrator differs from the bond of a public officer. Scofield v. Churchill, 72 N.Y. 565; Lacoste v. Splivalo, 64 Cal. 35 (30 Pac. Rep. 571); Bellinger v. Thompson, 26 Or. 320 (37 Pac. Rep. 714); Choate v. Arrington,116 Mass. 552; State ex rel. v. Creusbauer, 68 Mo. 254; Dugger v. Wright, 51 Ark. 232 (11 S.W. Rep. 213, 14 Am. St. Rep. 48)."
Appellant became surety for the bank's obligation to make a full and final accounting. The bank failed to perform such duty. Appellant is liable for its default.
XIII. Appellant complains of the action of the court in overruling certain objections to testimony on the part of appellees regarding their opinion as to the legal effect of the transaction of February 4, 1932. Even were we disposed to the view that the rulings were erroneous, reversal would not result because no prejudice to appellant is shown. See Ceretti v. Des Moines City Ry Co., 228 Iowa 548, 551, 293 N.W. 45, 46, and cases cited therein.
[12] XIV. Appellant asserts that the summary proceedings authorized by sections 11984 and 11985 of the Code, 1931, are not available herein, that the court erred "in holding that it had jurisdiction to proceed in a summary manner". This question was first raised by special appearance, which was abandoned. Appellant eventually filed an answer and went to *Page 1116
trial thereon. Any objection to the court's jurisdiction over appellant was thereby waived. We have recently recognized the jurisdiction of the probate court over the subject matter of a claim against the surety for a defaulting executor. In re Carson's Will, 227 Iowa 941, 289 N.W. 30. Since the court had jurisdiction of the parties and the subject matter, there is no merit in appellant's contentions.
[13] XV. Appellant complains of the court's method of computing interest. It contends that the interest is more than that provided for by the stipulation of February 4, 1932. The interest allowed conforms to the decree that was entered in the receivership of the bank. Appellant contends that that decree is not binding upon it. We have determined otherwise. Accordingly, there is no merit in this contention of appellant.
There is no question but that the bank imposed upon appellant when it induced it to become surety on its bond as executor herein. The bank was in serious difficulties. While its ultimate failure may not have been readily apparent, its situation was known to be desperate. The representations which it made to appellant to induce it to become surety on the bond were, in many respects, false. Appellant's reliance thereon has been disastrous. That the result is harsh goes without saying. The vigorous resistance of appellant's counsel to the liability imposed upon their client is readily understandable. The argument submitted to this court in support of their contentions is able. But, since we find no merit in such contentions, the judgment must be and it is affirmed. — Affirmed.
HALE, STIGER, BLISS, SAGER, OLIVER, HAMILTON, and MITCHELL, JJ., concur. *Page 1117 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430955/ | Fred Bonk died intestate August 24, 1917, a resident of Lyon county, Iowa. He left surviving him his wife, Fannie Bonk, and four minor children, Eilert, Bernice, Aletha and Mae, aged 15, 13, 11 and 3, respectively. He was a farmer and owned, at the time of his death, 400 acres of land in said county encumbered with mortgages totaling $35,000 and also some personal property. Fannie Bonk was duly appointed and qualified as administratrix of the estate on September 8, 1917. She administered said estate, filed her final report, gave due and legal notice to all interested parties and, on March 3, 1919, her final report was approved by the court, she was discharged as administratrix and her bondsmen released. February 21, 1919, Fannie Bonk commenced an action in equity for the sale and partition of said real estate making the children parties-defendant. Proceedings in this partition suit were in all respects regular and in accordance with the statutes of this state. A referee was appointed. The land was appraised at $185 per acre and sold at public sale to Fannie Bonk for $186 per acre, she being the highest bidder, the settlement of the purchase price being made by her assuming the $35,000 indebtedness, taking credit for her distributive share and giving back to the four minor children a note secured by mortgage in the amount of $22,826.86 bearing 5 percent annual interest. On May 6, 1919, the court entered an order approving the referee's report of sale and confirming the sale and approving the deed, all of which appears a matter of record, and the referee was duly discharged. On August 18, 1920, John Willemssen, a brother of Fannie Bonk, was appointed guardian of the property of said minor children. He duly qualified and took possession of the aforesaid note and mortgage and continued to act as guardian during the minority of each of said children until the youngest attained her legal majority. The eldest child, Eilert, also known in the record as Eildert and E.W. Bonk, attained his majority by becoming 21 years of age on April 14, 1923, and thereafter, on May 1, 1924, said guardian made a settlement with said ward, taking from him his receipt for $7,283.34, $5,706.72 thereof representing *Page 391
his one fourth of the principal amount of the joint $22,826.86 mortgage and $1,576.62 thereof being the accumulated interest thereon. No other money or property belonging to said ward came into the hands of said guardian. Thereafter, on December 26, 1924, said guardian filed his final report and petition for discharge as to said ward, Eilert Bonk. The said ward signed a written waiver of notice of hearing on the final report of said guardian and petition for discharge as to him and, thereupon, the court, on the 29th day of December 1924, entered an order approving said report and discharging said guardian from further duties as guardian of said ward. Final reports were made and filed as the other three children became of age and said guardian was finally discharged with regard to all said wards and the surety on his bond released. Each of the reports constituting settlement between the guardian and the wards were in due form and fully accounted for the respective shares of the four children in the $22,826.86 mortgage with accumulated interest thereon, the report showing that the amounts due the wards were paid to and receipted for by each of them as cash. However, in no instance was any cash money paid to said wards. The reason for this is accounted for by proof in the instant case that, at the time the eldest child, Eilert, became of age and entitled to his money, the guardian in an interview with Fannie Bonk, at which Eilert was present, stated, in substance, that he had no money with which to make settlement with said ward and something would have to be done, indicating that perhaps the land would have to be sold in order to raise the money. It was then suggested by Eilert that, in order to avoid selling the farm, the children turn over to the mother, Fannie Bonk, their interest in the estate and that, upon the coming of age of the youngest child, the mother make a will willing all her property in equal shares to the four children and to this the mother responded that, if that was the way the children wanted it, that was the way it would be. This oral agreement was made between the mother and the children on September 5, 1923. Eilert Bonk was married April 17, 1923, and the first year of his marriage *Page 392
he and his wife lived with his mother on the farm and the next spring Eilert moved into a new house that had been erected by Fannie Bonk on the same farm and occupied and farmed, as a tenant of his mother, 185 acres from that time until the date of his death, October 15, 1937. At the time of his death, he left surviving his wife, Martha, and five minor children, the eldest of whom was, at that time, 14 years of age. In the meantime, Fannie Bonk had continued to operate the remainder of the farm through tenants and had expended in the neighborhood of $20,000, which she inherited from her father and mother, in improvements on the farm and in reducing the mortgage indebtedness thereon. Everything went along smoothly and without any family friction until after Eilert's death. The question then arose as to what Eilert's wife and minor children should do — whether to remain on the farm or move to town? There was some discussion of this matter between Fannie Bonk and Eilert's wife and her brother and the uncle, guardian of Fannie Bonk's children. The question arose as to how Eilert's wife was to meet his obligations and how she was going to live and provide for her minor children. In these conversations, according to Martha Bonk, she learned for the first time that Eilert had turned over his interest in the estate of his father to Fannie Bonk, and, hence, there would be nothing coming to Martha Bonk out of the estate, her husband having predeceased his mother. Upon examination of the files in the clerk's office, she ascertained that Eilert had receipted for $7,283.34 as cash received. She then made inquiry of the guardian concerning this matter and was told by the guardian that she knew all about the agreement that was made between the children and the mother and that no cash was, in fact, paid to Eilert because of said agreement. This, however, she protested she did not understand and contended her husband had no such understanding. She then employed an attorney and this lawsuit was commenced by the administrator of the estate of Eilert Bonk to recover the $7,283.34 with interest thereon totaling in all $16,004.47, with interest at the rate of 5 percent per annum from May 1, 1938; *Page 393
asking that the order of discharge of said guardian be set aside and held for naught; for judgment for said amount against John Willemssen and against Fannie Bonk and each of them; that the same be made a lien upon the real estate and for costs, and for general equitable relief, the petition alleging, in substance, that notwithstanding the fact that Eilert was 22 years of age, at the time he signed the receipt for his share, the guardianship had not terminated, that a fiduciary relationship existed between the defendants and Eilert; that he had great faith and confidence in his mother and uncle, the guardian; that he had no independent advice; that the mother and guardian conspired and connived to fraudulently obtain the son's share in the father's estate; that the reports on their face purported to show a cash settlement; that the court was not advised to the contrary and that the defendants thus perpetrated a fraud upon the court and upon said ward. To this, the defendants filed separate answers alleging, in substance, the oral agreement with the mother; the fact that the mother, in compliance therewith, executed her will, which was produced in court, in which she willed all the property in equal shares to her four children; that the estate of Fred Bonk was regularly administered upon and the administratrix discharged by order of court; that the guardian had made his final report and had been fully discharged by order of court; that the land had been sold to Fannie Bonk through the partition proceedings and the sale and deed duly approved by the court and the referee discharged. Copies of the various orders of court, constituting final adjudications, were attached to said answers. It was also alleged that no appeal had been taken from any of said orders and set up the further facts that said Eilert Bonk had full knowledge of all these various transactions; that he had lived on the farm until his death; that he knew of the fact of his mother purchasing the farm and expending large sums of her own money in improving the same and in reducing the mortgage indebtedness; that, after he became of age, the relation of debtor and creditor existed between him and his guardian. *Page 394
There were also pleas of statute limitations and laches, waiver and estoppel.
The pleadings are quite voluminous, but the foregoing constitutes the substance of the same. The trial lasted several days and the transcript of the evidence covers over 700 typewritten pages which the writer of this opinion carefully read in its entirety. At the conclusion of the trial, the district court, among other things, found as follows:
"(5) That the plaintiff wholly failed to establish either active or constructive fraud as against the said defendants or either of said defendants, and that the evidence and record in this cause affirmatively shows that neither of said defendants in any way cheated, wronged, defrauded or took advantage of the said Eilert Bonk, or his property rights; that the defendants have established each and all of the allegations contained in their answers filed herein and that the equities are with the defendants; * * *
"(8) That no appeal was taken from any of the final judgments and decrees entered either in the matter of the estate of Fred Bonk, deceased, or the partition case or any of the guardianship proceedings aforesaid; that the same became final and are not subject to collateral attack herein; * * *
"(10) That the aforesaid last will and testament of the said Fannie Bonk was made pursuant to and in compliance with the aforesaid agreement had with her four children; that the same was based upon a full, fair and adequate consideration as established by the evidence, testimony and record in this case, which this court thinks was conclusively proved by clear, certain, satisfactory and competent evidence and testimony;
"(11) That * * * having been based upon a full, fair and adequate consideration pursuant to and in compliance with the aforesaid agreement had with her four children, this court now finds that said instrument was, when made, and is now, irrevocable; that said agreement and instrument was, and is binding and enforceable as to all the parties in interest, *Page 395
including the said Eilert Bonk, his heirs-at-law, and legal representative;
"(12) That the court specifically finds that when the said Eilert Bonk attained his legal majority and receipted to the said John Willemssen, as such guardian aforesaid, there was created as between the said Eilert Bonk and said defendant, the status of creditor and debtor respectively; and that the alleged cause of action set out in plaintiff's petition did not accrue as against the said defendants, or any of them, within five years next preceding the commencement of this action;
"(13) That the said Eilert Bonk * * * lived about fourteen and one-half years after attaining his legal majority without making any claim of any kind to the defendants for any interest in said property and without having made any effort whatsoever to collect the money for which the plaintiff now seeks a judgment; that in the meantime the valuable property rights of his three sisters, his co-wards, became and are now involved in the subject matter of this controversy, which rights cannot be ignored by a court of equity; and that as a result, the plaintiff is not only barred by the statute of limitations, but by the said Eilert Bonk's failure to make claim therefor during his lifetime, and by his acts and conduct he thereby waived each and every right, if any he ever had, to claim that the defendants, or any of them, were liable to him, as alleged by the plaintiff; and that the said Eilert Bonk, during his lifetime, was not only barred by the statute of limitations of the State of Iowa, but he was guilty of such laches as to estop him from maintaining such an action as is alleged and set forth in plaintiff's petition;
"(14) * * * that the court not only finds that there was no fraud of any kind upon the part of the defendants, or any of said defendants, and that the equities are with the defendants on the merits of said cause as established by the record herein, but that the plaintiff, as a result, is also barred by the statute of limitations of Iowa and is also now estopped by the laches of the said Eilert Bonk from maintaining said alleged cause of action; and that the plaintiff's petition is without merit and *Page 396
should be dismissed and that the defendants should have judgment for costs."
Judgment was entered accordingly, the decree providing that the last will and testament of Fannie Bonk be impounded with the clerk of the district court of Lyon county, Iowa, until the death of the said Fannie Bonk. From this decree, plaintiff brings his appeal to this court contending, in substance, that the trial court erred (a) in finding that there was no fraud; (b) in finding that the order of discharge of the guardian was available as a defense because the record discloses that such discharge was obtained by fraud; (c) that the statute of limitations is not available because of the failure to affirmatively allege and prove that the fraud was discovered by the plaintiff more than five years next preceding the commencement of the action; (d) that the alleged oral agreement was not available as a defense and was improvident and unenforceable; (e) and that the defense of laches, even though the same had been properly pleaded, a fact which is not conceded, was not available as a defense.
Each of these alleged errors is argued separately and a great many authorities cited and the principles of law ably discussed by counsel for appellant and we have given the argument careful consideration and unhesitatingly arrive at the conclusion that there is no law or principle of equity in any of the pronouncements of this court which would warrant us in interfering with the decree of the trial court.
The issue here is primarily one of fact. This is not a case of imposition upon the credulity of the ward, resulting in an unconscionable or inequitable advantage to the recipients of the property. The thing that was done in the instant case in which the guardian and the mother of the wards were involved was intended for the mutual benefit of the mother and the children. The idea was suggested by this boy, then of full legal age, who was reared on this farm which had been acquired by the joint efforts of his father and mother. The suggestion did not come from the guardian nor from the mother. It *Page 397
seemed to have been accepted as a satisfactory solution by all concerned. There isn't even a suggestion of the alleged connivance and scheming and conspiring between the guardian and the mother to defraud and wrong her children. Left a widow at the age of 35, Fannie Bonk took up the burden where her husband left off and, apparently, has found her comfort and solace, not in a second husband, for she has never remarried, but in her desire to keep this estate intact for the benefit of her children and, in this, she had the full cooperation of her children. She built a home for Eilert and his young wife with her own money; she established him on a part of this farm with the necessary equipment, livestock, feed and seed to carry on farming operations; her brother, the guardian and uncle of these children, aiding her and them through all the years with his personal attention and labor in many ways, as shown by this record, demonstrated his personal financial disinterestedness by charging nothing for any of his services, time or personal labor in helping his sister or, in his capacity as guardian, even contributing from his own money a portion of the attorneys' fees for the attorneys who represented him as guardian. Through all the years of this guardianship, until the youngest child became of age, the guardian had the assistance of a neighboring banker, a friend of the Bonk family, who aided him in keeping his accounts straight; he was also at all times represented by reputable attorneys in preparing his legal papers in the guardianship matter. As is so often the case in matters of this kind between parents and children, who have abiding faith in each other, attorneys were not consulted or called in to advise or prepare ironclad legal indentures evidencing the understanding and agreement; the oral agreement was talked over between the children and the mother in the presence of the guardian out on the farm. Later, they went to the banker and he drew up the receipts — the waivers of notice — which Eilert and his sister, Bernice, who was also then of age, signed. Before this was done, the banker required that they restate the agreement in his presence. When it came time to draw the will, Fannie Bonk went to the same banker, *Page 398
who was fully conversant with the whole matter, and, from the evidence, it appears that they each understood that she was bound to draw the will the way it was drawn and executed. Fannie Bonk directed him to keep the will in his possession, which he did until required to produce it at the trial of this case. There is no evidence in this record that Mr. Crawford, the banker, gained any advantage in any way personal to himself or to his bank from the arrangements that were entered into and fully executed; hence, the trial court was right in finding that there was no fraud of any kind. This being true and the property left by Fred Bonk being the property of this mother and her children, they had a right to deal with it and to deal with each other concerning it as they deemed best. Eilert Bonk lived 14 years after the execution of the receipt for his share in the estate. He never questioned the right of his mother to claim ownership in the entire estate. On the contrary, there was evidence that he was fully aware of what had transpired. The other three children were all witnesses at the trial of this case. They have all attained their majority, married and have homes of their own. They all signed similar receipts. They took the witness stand and testified, in substance, that they understood that the children had turned over to the mother all the property and she, in turn, was to will it to them in equal shares; that they received no cash when they signed the final vouchers in the guardianship matter; and they manifested no dissatisfaction as to what had been done. Under the mother's will, Eilert's five children will take his share upon the death of Fannie Bonk. The decree in this case unalteringly binds Fannie Bonk and she has not appealed. The death of Eilert Bonk, prior to the death of his mother, the testatrix, results in Eilert's wife being left in a position to take no part of the devise since Eilert did not die seized of the property devised to him by his mother. No doubt, this unfortunate situation, in so far as the widow of Eilert Bonk is concerned, is the underlying cause of the instigation of the litigation. The facts in the case of Pels v. Stevens, 187 Iowa 443, 173 N.W. 56, mainly relied upon by appellant, are *Page 399
widely different and easily distinguished from those in the instant case. Without discussing in detail the several assigned errors and without taking up the authorities cited by appellant and discussing the same and pointing out wherein the cases are distinguishable from the case at bar, for we see no useful purpose in so doing, suffice it to say that the trial court was right in finding that there was no fraud established; that the agreement between the mother and the children was established by clear, convincing and satisfactory proof; that it was based upon a valid consideration and has been accepted and acted upon and fully performed; that the children had knowledge of the same, and, although plaintiff's intestate lived many years thereafter, he did nothing to disaffirm the settlement; that the facts constituting the various defenses (statute of limitations, laches, waiver and estoppel) were fully pleaded and established by abundant and satisfactory proof; and that in equity and good conscience the court should not, at this late date, disturb nor set aside said agreement; and that the settlement between the guardian and his wards was in accordance with said agreement and the order of the court approving his final report and discharging him as guardian should not be disturbed or set aside.
It, therefore, follows that the decree of the trial court should be and is affirmed. — Affirmed.
SAGER, HALE, MILLER, BLISS, STIGER, MITCHELL, and OLIVER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430956/ | Plaintiff is the owner of certain lots situated at the northwest corner of southeast Fourteenth Street and Hartford Avenue in the city of Des Moines. The land is low, and it appears that a ditch on private property had been 1. MUNICIPAL constructed parallel to the west line of CORPORA- southeast Fourteenth Street, south of Hartford TIONS: Avenue. It is alleged in the petition that the streets, city constructed a culvert under the surface of etc.: Hartford Avenue, connecting the ditch with the diverted land adjoining the north side of said avenue drainage: upon which plaintiff's property abuts; and that, burden of since the construction of said culvert, on the proof. occasion of each rain during the year preceding the commencement of this action, his premises have been submerged; and that the predicated damages to his property proximately resulted. The trial court instructed the jury that the only charge of negligence pleaded by the plaintiff, upon which a verdict could be based, "is the positive act of casting or discharging surface water so collected by the said ditch and culvert upon the premises of this plaintiff." As applied to the facts in this case, the instruction is correct.
It is the contention of the defendant city that plaintiff failed to establish by a preponderance of the evidence that the culvert in question was constructed by the city or under its authority. The rule is well established that a municipality is not liable for the act of its officer or agent performed outside the duties of his office, or not within the general scope of the agency, unless the act is adopted or ratified by the municipality. Hard v. City of Decorah, 43 Iowa 313. The culvert was in a street of the *Page 976
defendant city, and had been in existence for about two years prior to the time in suit. It is apparent that the city recognized this culvert; and on one occasion, upon complaint of a property owner, the ditch that fed it was dug deeper by employees of the city. This was for the purpose of giving the water on the adjacent land a freer outlet through the culvert. A city is bound to keep its streets free from nuisances; and it has no right to collect surface waters on the public highway, or on the land of a private citizen, and discharge it upon the property of another, "where it was not wont to go." Schofield v. Cooper,126 Iowa 334. The burden was upon the plaintiff to prove by a preponderance of the evidence that the culvert was constructed by the defendant city, through its authorized agents, or that it had been adopted as such by defendant city, and that, through its faulty construction, surface waters were caused to be discharged in such quantities upon the land of plaintiff that the damages alleged were proximately caused thereby. In substance, the jury was so instructed.
Further complaint is made by the defendant on the ruling of the court striking an amendment to the answer in which an ordinance of the defendant city was pleaded. We quote therefrom the material provisions, to wit:
"The council has and shall exercise all legislative powers, functions, and duties conferred upon the city or its officers. It shall make all orders for the doing of work or the making or construction of any improvement, bridge, or building."
The culvert was not a permanent improvement, within the purview of this ordinance, and the provision defining the legislative powers and functions of the city was but a statement of a general law. Plaintiff was in duty bound to prove the 2. MUNICIPAL construction of the sewer by the defendant; and, CORPORA- a prima-facie case in this particular having TIONS: been established, the defendant was compelled to streets, meet this issue, and was privileged, etc.: irrespective of the pleaded ordinance, to prove construction that the city did not construct the culvert, or of culverts: that the persons who did construct same were not immaterial the authorized agents of the city for that ordinance. purpose. Furthermore, the construction of a small culvert under the authorization of the superintendent of streets of a city, or *Page 977
repairing of same, is not within the classification of a legislative act, and therefore need not be signified by an ordinance or resolution. There was no error in sustaining the motion of plaintiff to strike the amendment to defendant's answer.
Did the trial court give to the jury the correct rule for the admeasurement of damage? Three specific items of damage were submitted, to wit: (1) Loss of chickens by reason of the discharge of surface water upon the land of 3. DAMAGES: plaintiff during the year 1923; (2) loss of measure of plaintiff's garden in said year; and (3) loss of damages: the use of plaintiff's premises during said year injury from from same cause. In the light of the evidence, diverted the instruction given cannot be sustained. The drainage: whole injury upon which damages are predicated double occurred at one time. The mere fact that the recovery. culvert was of permanent construction did not render the nuisance in question, occasioned thereby, permanent also. In brief, plaintiff cannot be allowed both the loss of the use of the lots owned by him, and also the loss of the garden truck produced on the lots during the same period of time. The law does not permit the awarding of double damages. Under the circumstances, plaintiff was entitled to recover any special damages suffered by him, such as loss of chickens, cost of garden seed, and cost of plowing and cultivation, plus the reasonable value of the use of the land for the year; or, if the evidence justified a recovery, he was entitled to his special damages plus the reasonable market value of the growing vegetables in the field when destroyed in June, 1923, or the market value of same in a matured condition, less the deductions for the reasonable expense of material and marketing the products. Tretter v.Chicago G.W.R. Co., 147 Iowa 375; Brous v. Wabash R. Co.,160 Iowa 701. The jury was instructed, in finding the amount of plaintiff's recovery as damages, based on the injury to the garden:
"The reasonable market value of the garden which was in fact destroyed by reason of the discharge of certain surface water upon the premises of this plaintiff during 1923."
This instruction is not specific. But, assuming that the jury understood it to mean the market value of the growing things in the field when destroyed, without reference to their *Page 978
4. TRIAL: value in a matured condition, we find no instruc- testimony whatsoever in the record bearing upon tions:value the reasonable market value of the garden truck without at any time; nor does the record show the supporting quantity of vegetables that were produced, their evidence. condition as to maturity when destroyed, or the market price of any of the growing things. It may be observed, therefore, that the instruction given is subject to a threefold criticism: (1) Recovery of double damage; (2) inadequate and incorrect measure of damage as to the value of garden truck; and (3) the damage predicated on reasonable market value of the garden truck finds no support in the evidence.
The instruction must work a reversal. Wherefore, the judgment entered is — Reversed.
FAVILLE, C.J., and STEVENS and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430957/ | The real estate mortgage in question covered two parcels of land aggregating 240 acres, of which 160 acres were situated in Cedar County, Iowa, and 80 acres in Scott County, Iowa.
It is conceded that a special execution issued and that on October 25, 1930, the amount then due on the first, or plaintiff's, mortgage was $33,931.15 and that the sale produced $31,500, leaving a deficiency judgment in favor of plaintiff against the defendant George Hein, mortgagor, in the sum of $2,431.15, with interest thereon from October 25, 1930, at the rate of 7%, which judgment is still unpaid.
It is further conceded that the receiver, who was appointed by the district Court under and by virtue of an order entered on September 22, 1930, took charge of the involved premises and has collected, as rentals, for the year of redemption ending March 1, 1931, the sum of $2,520.
The petition of the plaintiff in foreclosure contained a prayer "that a receiver be appointed to collect and care for the rents and profits in accordance with the terms of the mortgage." The petition was filed April 19, 1930.
The legal quarrel as to the rents in the possession of the instant receiver is between defendant-appellee Henry Hein, Trustee, and the plaintiff-appellant J.H. Soehren, Trustee, and the defendant-appellant Sunbury Bank, and was submitted as a voluntary issue.
The trial court in its supplemental decree dated April 4, 1931, found and determined that the rents in the hands of the receiver, reserved for ruling thereon in the original foreclosure *Page 1062
decree, should be awarded to the defendant Henry Hein, Trustee, under his trust deed, and entered judgment accordingly, to which "all parties except".
It may be well to identify the parties concerned in this appeal. The plaintiff-appellant, J.H. Soehren, Trustee, was the assignee of one Ficke, who was the original mortgagee under the mortgage in suit. The defendant-appellee George Hein and wife Zora E. are the mortgagors in this foreclosure action.
At the threshold of this opinion it may be recited that the pledge of rents in question was not indexed in the chattel mortgage record by the plaintiff-appellant, although the real estate mortgage on the 240 acres was filed and recorded — 160 acres situated in Cedar County on February 11, 1927, and the 80 acres in Scott County, February 4, 1927. The plaintiff-appellant's mortgage covering the 240 acres recites in the granting clause thereof: "To have and to hold the premises above described, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, and the rents, issues, products, and profits thereof, unto the second party (mortgagee) his heirs and assigns forever." The said mortgage is signed by George Hein and Zora E. Hein, husband and wife, and dated February 4, 1927.
The defendant and appellant Sunbury Savings Bank of Sunbury, Iowa, appeared by answer and cross-petition filed June 2, 1930, in which cross-petition the Sunbury bank claims the rentals and prayed for a decree of foreclosure of its mortgage and asked for the appointment of a receiver. The Sunbury mortgage was executed by George Hein and wife Zora E., according to the tenor of three promissory notes. This mortgage was executed on March 27, 1929.
The intent and content of the Sunbury Savings Bank mortgage covers the 240 acres in question, and was duly filed and recorded as to the 160 acres of Cedar County land on March 28, 1929, and as to the 80 acres of Scott County land on April 5, 1929. This mortgage, in the granting clause thereof, contains the following language as to the rents and profits: "Hereby sell and convey unto the Sunbury Savings Bank, Sunbury, Iowa, a corporation, party of the second part, the following described premises in Cedar and Scott Counties, together with the rents and profits, issues, income, and use thereof from this date until *Page 1063
this mortgage is fully paid." This mortgage also contains a complete receivership clause, and it is important to note that the mortgage was also indexed as a chattel mortgage in Cedar County, Iowa, on March 28, 1929, but it is conceded of record that the mortgage on the 80 acres in Scott County was not indexed as a chattel mortgage in Scott County.
The defendants Henry Hein and wife, Gus Hein and wife, and Julius Hein and wife are the beneficiaries named in a trust deed executed by George Hein and wife on February 28, 1930, which was subsequent to the filing of plaintiff-appellant's mortgage.
We now examine the material recitals of the trust deed of George Hein and Zora Hein, his wife, which was executed to Henry Hein, as trustee, on February 28, 1930. This trust deed, as to the real estate, may be viewed as an equitable mortgage, and it recites in substance that Henry Hein has endorsed a note for the undersigned, George Hein, payable at a described bank for a specified sum of money, that Gus Hein has endorsed a note for the undersigned George Hein, payable at a certain bank and for a specified sum, and that Julius Hein has endorsed a note for the undersigned George Hein, payable at a certain bank and for a specified sum of money. The Hein mortgage further recites:
"And whereas, the said George Hein is desirous to secure the said Henry Hein, Gus Hein and Julius Hein on their liability as such endorsers by conveying the real estate hereinafter described to Henry Hein, in trust, for the benefit of said Henry Hein, Gus Hein, and Julius Hein; there is, therefore, hereby sold and conveyed to the said Henry Hein, as trustee, the following described real estate (here follows a description of the 240 acres involved). The said trustee is to have the right and authority to take possession of said real estate, to rent the same and collect rents."
This mortgage or trust deed then specifies that such rents shall be applied on the interest payable on said notes and on the principal of said notes until the liability of the said endorsers is equal, and that thereafter equal payments are to be made. It further provides that the trust can be cancelled on the written request of the said endorsers and George Hein, and in such event the real estate is to be reconveyed by Henry Hein, Trustee, to George Hein. *Page 1064
[1] The question arises as to when a lien first arose, if at all, in favor of Soehren, trustee, upon the rents and profits. As against parties not subsequent purchasers for value and without notice, a lien was created upon the rents and profits in favor of Soehren, trustee, at the date of the execution of his mortgage. This is because the language of his mortgage, as herein quoted, was sufficient to constitute a chattel mortgage, if segregated from the other portions of the instrument. See Farmers Tr. Sav. Bank v. Miller, 203 Iowa 1380. It will be noted that the second mortgagee, Sunbury Savings Bank, was a subsequent purchaser for value without notice and was not subordinated to such prior lien.
The plaintiff-appellant Soehren, trustee, contends that he is entitled to the rents under and by virtue of his mortgage dated February 4, 1927, and signed by George Hein and wife Zora covering the real estate, to wit, 240 acres in Cedar and Scott Counties respectively. As heretofore stated, the granting clause of plaintiff's mortgage pledged the rents, profits, etc., of the land in question, but said mortgage was not indexed as a chattel mortgage in either county.
[2] We now approach the question as to what rights Hein, Trustee, acquired under and by virtue of his trust deed. As pointed out, in the trust deed or mortgage that was given by George Hein to Henry Hein, Trustee, to secure the payment of some pre-existing indebtedness, the trustee was given authority to take possession of the real estate, to rent the same, and collect the rents, and the trustee was directed to apply such rents toward the payment of said pre-existing indebtedness. It is apparent that Hein, Trustee, acquired no greater rights under this instrument than George Hein, the title holder, had. Hein, Trustee, is not an existing creditor, nor is he a subsequent purchaser under Section 10015, Code 1927. The record discloses that Hein, trustee, filed cross petition, but did not pray for a receiver. The record does not show that Hein, trustee, indexed his trust deed or mortgage as a chattel mortgage. A creditor who does not secure a levy by attachment or execution, before notice of an unrecorded mortgage, is not protected under Code Section 10015, and one who acquires a pledge as security for a pre-existing indebtedness is not a subsequent purchaser within the meaning of that section. Martin v. Fritz, 194 Iowa 740. *Page 1065
[3] We now turn to the claim of the Sunbury Savings Bank under its mortgage. The said bank, as a party defendant and appellant here, filed its cross-petition claiming the rents in question under a mortgage executed March 27, 1929, by George Hein, as title holder, to the real estate in question. The granting clause therein recites: "Hereby sell and convey unto the Sunbury Savings Bank the premises * * * together with the rents and profits, issues, income and use thereof from this date until this mortgage is fully paid." This language, it may be observed, is substantially identical with that found in Farmers Tr. Sav. Bank v. Miller, 203 Iowa 1380.
The record in the case at bar discloses that the Sunbury mortgage was recorded in both Cedar and Scott Counties, and a concession is found of record, to wit: "It is conceded that the mortgage held by the Sunbury Savings Bank was not indexed as a chattel mortgage in the records of Scott County, Iowa," but it was indexed as a chattel mortgage in Cedar County, which covered the rentals of the 160 acres situated in Cedar County. It follows, therefore, that since the Sunbury mortgage as to the 160 acres in Cedar County was indexed as a chattel mortgage, a lien was thereby created on the Cedar County land as to the rents therefrom, to wit, $1250, in the hands of the receiver. As between Soehren, trustee, and the Sunbury Bank the question of priority as to the rents from the Scott County 80 acres, to wit, $1000, arises. Although the Soehren mortgage was prior in date, it was never indexed as a chattel mortgage, and it therefore follows that as between the two appellants, the Sunbury Bank, as subsequent purchaser for value, has a lien on the rents and profits prior to that of Soehren, trustee.
We conclude, therefore, that the trial court was in error in awarding to Hein, trustee, the rentals in question, and that said rentals should have been awarded to the cross-petitioner, the appellant Sunbury Bank. — Reversed.
WAGNER, C.J., and KINDIG, FAVILLE, and ALBERT, JJ., concur. *Page 1066 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430960/ | I. The notes in suit were signed by Clark Brothers and the individual members of the firm and their wives. The defendants herein comprised the firm and one partner and his wife. For convenience of discussion, we shall refer to the defendant in the singular number. The affirmative facts relied on as a defense may be stated briefly.
On February 1, 1918, the defendant obtained from the plaintiff a loan of $10,000, to be due in five years from date. The debt was evidenced by a series of promissory notes, and was secured by a first mortgage upon real estate. In January, 1920, the defendant sold the real estate to Dunkin, who assumed and agreed to pay the mortgage. The notes in suit are two of the series which evidenced the loan. After his purchase, Dunkin paid the annual interest until the due date of the mortgage, February 1, 1923. On or about that date, a contract of extension was entered into between him and the plaintiff, purporting to extend the time of payment of the principal debt for five years from February 1, 1923. By such contract Dunkin agreed to pay to the plaintiff the full amount of such debt, with interest, on February 1, 1928. He also executed and delivered to the plaintiff interest coupons for semiannual interest at 6 per cent from February 1, 1923, to February 1, 1928. He paid all accruing interest up to February 1, 1926, and defaulted on February 1, 1927. This action is brought to recover the principal sum of the two notes, with interest thereon from February 1, 1926.
The argument for the appellant is that, by the assumption of *Page 171
the mortgage as a part of the purchase price of the land, Dunkin became primarily liable for the debt, and that, as between the vendor and the vendee, the vendor was secondarily liable only; that the new relation of this defendant to the debt as thus created became fully known to the plaintiff; and that it acquiesced in and accepted the same; that the extension of the time of payment in the manner indicated, without the knowledge or consent of the defendant, operated as a discharge of the defendant from all liability upon the note. The argument has much logical force, and is adopted in the decisions in some states. It would be entitled to much consideration here, if the question were an open one in this state. Such question is fully foreclosed, however, by a long line of our decisions, beginning in a very early day. These are the following: Corbett v.Waterman, 11 Iowa 86; Massie v. Mann, 17 Iowa 131; James v. Day,37 Iowa 164; Robertson v. Stuhlmiller, 93 Iowa 326; Iowa L. Tr.Co. v. Haller, 119 Iowa 645; Mowbray v. Simons, 183 Iowa 1389;Clarinda Nat. Bank v. Kirby, 191 Iowa 786; and Baldwin v. Munger,200 Iowa 32.
In the Corbett case, 11 Iowa 86, it was held that though, as between vendee and vendor, the vendee by his assumption makes the debt his own, and becomes primarily liable therefor, yet such assumption has no qualifying effect upon the rights of the mortgagee, other than to enhance. The mortgagee relinquishes nothing, as against his mortgagor. He may enforce the obligation assumed by the vendee or not, as he may choose. He may enforce it in whole or in part, or he may ignore it entirely; and, as against the mortgagee, the mortgagor is not deemed to be surety. He still continues as a principal. This holding has been reaffirmed and somewhat amplified in the later decisions herein cited. Under these authorities, the extension of time, if such, which was granted to the assumptor was not binding upon the vendor, as mortgagor, and could not operate prejudicially to him. The vendee was bound to the vendor by his covenant to pay the mortgage when it fell due. The extension of time granted or suffered by the mortgagee did not supersede that covenant. The vendor could have sued for a breach of it on and after February 1, 1923, and could have compelled payment, notwithstanding the extension. The general theory of our past cases on this subject is that the assumption of a mortgage by a vendee of land operates as a mere gratuity to the mortgagee. His rights thereunder spring *Page 172
from the express agreement of the parties, made in his behalf as a third party. As we said recently in Shult v. Doyle, 200 Iowa 1:
"The cause of action thus created in his favor is a bit of legal grace; it cost him nothing; it simply fell upon him, without effort or knowledge on his part. He is entitled to it, such as it is. He has no ground of appeal to equity, either to expand it or to prevent its shrinkage."
Various phases of the question are considered in the authorities above cited, and we see nothing to be gained herein by an extended review of them.
II. It is contended by the appellant that our previous holdings, as above set forth, have all been superseded by the enactment of Section 9581, Code of 1924, in the Negotiable Instruments Law, which provides as follows:
"9581. When persons secondarily liable on — discharged. A person secondarily liable on the instrument is discharged:
"1. By an act which discharges the instrument.
"2. By the intentional cancellation of his signature by the holder.
"3. By the discharge of a prior party.
"4. By the valid tender of payment made by a prior party.
"5. By a release of the principal debtor, unless the holder's right of recourse against the party secondarily liable is expressly reserved.
"6. By an agreement binding upon the holder to extend the time of payment, or to postpone the holder's right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved."
It is urged that this section is conclusive of the whole question. The essential ground of this contention is that the defendant was "secondarily liable" only. But the holding of our cases, as already indicated, is that, as between mortgagor and mortgagee, the liability of the mortgagor does not become secondary. The liability of the assumptor is upon his covenant in the deed. An action against him must be predicated upon such covenant, whether brought by vendee or by mortgagee. Such is *Page 173
the clear purport of our past holdings, and they are not affected by the enactment of Section 9581.
III. It is further urged by the appellant that our previous cases should be deemed overruled by a decision of the Supreme Court of the United States, or else that we should overrule the same in deference to such decision. The case cited is Union Mut.Life Ins. Co. v. Hanford, 143 U.S. 187. In the cited case, the mortgage involved in the foreclosure was an Illinois contract. The plaintiff brought his suit in the Federal court, invoking the jurisdiction thereof on the ground of diverse citizenship. It involved the question here under consideration. The Supreme Court held that the question presented must be decided under Illinois law. Illinois is one of the states wherein the rule contended for by the defendant is recognized. The Supreme Court applied such rule to the case before it in obedience to the law of Illinois. This is only to say that, if the mortgage had been an Iowa contract, the Supreme Court would have enforced the contrary rule, in obedience to Iowa law. The decision relied on presents no conflict, as between us and the Supreme Court of the United States. It does disclose a diversity of decision as between the higher courts of the two states. Such diversities of human judgment are unavoidable in some degree. When they occur, neither court is at liberty to ignore its own decisions in deference to those of another, because its own decisions have become the law of the state and a rule of property.
The judgment of the district court was properly obedient to the rule long established in this state. It is, accordingly, —Affirmed.
ALBERT, C.J., and STEVENS, FAVILLE, MORLING, and WAGNER, JJ., concur.
De GRAFF and KINDIG, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430961/ | I respectfully dissent to the affirmance of this cause. I feel that an injustice is done to the rights of the appellants by reason of a misinterpretation and misapplication of the law in reaching the conclusion announced by the majority opinion. Until a question is settled authoritatively, it is never settled, but remains a controversy, and as such, *Page 174
gives rise to continuous litigation, the very thing that the court should seek to avoid.
Briefly, the facts in this case show that, on February 1, 1918, the defendants (appellants) executed a series of notes, aggregating $10,000, made payable to the plaintiff or its order, on February 1, 1923, with interest thereon at the rate of 6 percent, the said notes being secured by a mortgage upon certain lands, and providing, inter alia, for interest at the rate of 8per cent after maturity. In the meantime, on January 3, 1920, the defendants (mortgagors) sold the lands described in said mortgage to O.H. Dunkin, who, by deed, assumed and agreed to pay the mortgage indebtedness. On February 1, 1923, when the mortgage obligations became due, Dunkin (assuming grantee), joined by his wife, and without the knowledge, consent, or concurrence of these defendants (mortgagors), entered into with, and did execute, acknowledge, and deliver to, the plaintiff, mortgagee, a written agreement, wherein the said Dunkins did "promise and agree" to pay the plaintiff (appellee) in five years thereafter, to wit, on February 1, 1928, the said mortgage indebtedness, with interestthereon after February 1, 1923, at the rate of 6 per cent, and tokeep and perform all the conditions of the mortgage; and the said Dunkins did make, execute, and deliver to the plaintiff, made payable to the plaintiff or its order, coupon interest notes atthe rate of 6 per cent, which notes were accepted by the plaintiff (mortgagee), and upon which coupon interest notes the said Dunkin and his wife have made payments to, and the same were accepted by, the plaintiff. On February 4, 1928, plaintiff filed his petition in the lower court, declaring upon the express contract found in two of the original notes of $750 each, being a part of the $10,000 series of notes above described, asking forjudgment thereon at the rate of 6 per cent, being $180 of interest on the said $1,500 for two years, and $7.20 interest on $90 interest thereon from February 1, 1927, to February 1, 1928, at the rate of 8 per cent, making the total interest sum of $187.20, in addition to the principal of $1,500, or a total amount of $1,687.20, shown by the petition and judgment entry in this case.
The defendants, by separate answer, pleaded these facts relating to the giving of the notes and mortgage and the agreement by the said Dunkins with plaintiff, and after alleging that the *Page 175
said notes and the said mortgage were signed, executed, and delivered as of "one and the same transaction," pleaded the transaction, and relation of principal and surety existing, between the defendants and Dunkin, and claimed a release, by reason of the said new arrangement, "promise, and agreement" made by the said Dunkin (assuming grantee) and his wife with plaintiff. This separate defense was stricken, on motion of the plaintiff, as not defensive, and judgment rendered against the appellants, from which judgment this appeal is taken. Around the correctness of the lower court's decision on this motion this controversy gravitates.
The petition declared upon an express contract shown by the notes, making no mention of the mortgage, other than as mentioned and referred to in the notes themselves. These notes show, however, that the terms and conditions of the mortgage are made a part of said notes. The notes also provide, inter alia, forinterest at the rate of 8 per cent after maturity, from February1, 1923; yet the plaintiff sought and obtained judgment in thetrial court at the rate of 6 per cent, being in accord only withthe contract made by and between the plaintiff and the saidDunkins, to which these defendants were not parties. It will, therefore, be seen that, although the plaintiff declares upon an express contract originally made by the defendants, providing for8 per cent interest after maturity, it obtained judgmentaccording to a contract made by the Dunkins, providing for 6 percent interest; and thus these defendants were sued, not upon and according to the original contract as made by them, but upon and according to the contract made, as aforesaid, by the Dunkins with the plaintiff.
This state of affairs should not be disregarded in this case. It is universally recognized, as due process of law, that one person cannot be held on, or bound by, a contract made by another. The remedy of the plaintiff is limited strictly and solely to the allegations found in the petition. The prayer for relief forms no part thereof. Clearly, under the law of our state, as declared by this court, it was erroneous for the lowercourt to have rendered judgment against the defendants upon acontract contrary to that declared upon, and one not made bythese defendants. In Bottorff v. Lewis, 121 Iowa 27, 33, this court said: *Page 176
"* * * we do not understand the theory on which the court awarded plaintiff seven-thirtieths of the land when she admitted she had but * * * one-tenth interest therein * * *. The relief granted must always be consistent with the case made by the petition * * *." (Citing Tice v. Derby, 59 Iowa 312, and Section 3775, Code of 1897 [now Section 11573, Code of 1927]).
This section (11573) provides, among other things, that "the court may grant him [plaintiff] any relief consistent with the case made by the petition and embraced within the issue." See, also, Watt v. Robbins, 160 Iowa 587; Schuster Bros. v. DavisBros., 185 Iowa 143; Bethany Cong. Church v. Morse, 151 Iowa 521; and Walker Davis v. Irwin, 94 Iowa 448, 454. There is, therefore, no consistency between the allegations of the plaintiff and the judgment rendered, and it should not be permitted to stand.
As the notes refer to the mortgage, and embody the terms and conditions thereof in the notes, this mortgage instrument is a necessary element, not only showing what the contract was between the parties, but also necessary to state the plaintiff's cause of action, if any, even at law, against these defendants; so that a severance of these two instruments was, in itself, an alteration of the contract, and for this reason the lower court should not be sustained. See Smith, v. Eals, 81 Iowa 235; and Conger v.Crabtree, 88 Iowa 536. This is especially true since the defendants' answer makes the notes and the mortgage of "one andthe same transaction," and the plaintiff's motion (demurrer), admitting these facts to be true, resulted in the striking by the trial court of the essential elements of the contract. This is clearly erroneous.
The defendants have set up sufficient facts of the deed to, and an assumption by, Dunkin to show the relation of principal and surety existing at the time of the "promise and agreement" made between the assuming grantee, Dunkin, and his wife, and plaintiff. This brings the case clearly within the line of the decisions of our court that, as between a creditor who extendsthe time of payment to an assumptor of a debt evidenced by anote, and the makers of a note who are known by the creditor tobe secondarily liable for the obligations, or who are shown, asbetween original parties to the instrument, to be sureties, by *Page 177 parol evidence or otherwise, aliunde, the Negotiable Instruments Law applies, in that it is provided (now Section 9518, Code of 1924), that, as between original parties to the instrument, or as to instruments in the hands of any holder other than a holder in due course, as in the instant case, such instrument is subject tothe same defenses as if it were a nonnegotiable instrument. SeePiper v. Newcomer Campbell, 25 Iowa 221; Kelly v. Gillespie,12 Iowa 55; Corielle v. Allen, 13 Iowa 289; Chambers v. Cochran,18 Iowa 159; Lauman, Hedges Co. v. Nichols, 15 Iowa 161; andFullerton Lbr. Co. v. Snouffer, 139 Iowa 176.
The Fullerton Lbr. Co. case, supra, being one of the first cases, if not the first case, decided on this phase of the Negotiable Instruments Act, and being a controversy between original parties over a note dated January 1, 1905, given subsequently to the Negotiable Instruments Act, is authority for the holding that while, as between a bona-fide purchaser and a maker of a note, secondary liability of a maker could not be shown, yet, as the suit in said case was between the original parties, just as it is between the original parties in the instant case, this secondary liability could be shown. This court said:
"As we understand it, the entire scope and purpose of the act [Negotiable Instruments Act] so far, at least, as it affects the question before us, is to fix the rights of holders in due course and make it uniform in the several states. This, we think, is apparent from the act itself. Thus, Section 3060-a58 [now Section 9518] in terms says: `In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable.'"
Therefore it was held, under the Negotiable Instruments Act,
that, if a maker shows suretyship, or it is known to the holder that such maker is surety, as between original parties, he will have every defense as if the instrument were nonnegotiable; andthe court also held that, where the time of payment was extended,as was done in the Fullerton case, and as shown in the instantcase, and such extension was made without the knowledge, consent,or concurrence of the party secondarily liable, such party isthereby released.
The Fullerton Lbr. Co. case is clearly applicable to the instant case, and is controlling, because of the fact that, before the *Page 178
extension of time was made in said case (as in the instant case, between Dunkin and the original mortgagors), the various parties (grantors and grantee) were liable as principals; but when an
extension of time was made to one of these principals, as to Dunkin, in the instant case, with the knowledge that Clark Brothers were, as to Dunkin, sureties for the debt, or that the relation of principal and surety existed between them, this extension of time, under the authority of the Fullerton Lbr. Co.
decision, released the defendants, because they were surety, aswell by their own act as by the act, and with the knowledge, ofthe plaintiff; and it would be a misinterpretation and amisapprehension of the law and decisions of this state to holdotherwise, and especially to revert to decisions based uponinstruments made prior to the enactment of the NegotiableInstruments Law, even if those decisions were not in harmony with these later decisions of this court.
Moreover, this is especially true in view of the decision in the case of Malanaphy v. Fuller Johnson Mfg. Co., 125 Iowa 719, which finally brought into harmony the cases of Corbett v.Waterman, 11 Iowa 86, and Robertson v. Stuhlmiller, 93 Iowa 326, and other like decisions of this court, with the ruling in that case. As between original parties to an instrument, and withspecific reference to an assumptor of a debt and to rights of thecreditor as against original parties who were primarily liable, and now secondarily liable, on the instrument itself, we held, in the Malanaphy case, supra:
"Now, as a creditor for whose benefit a promise is made, takes [the benefits of an assumption of the debt] subject to the equities existing between the principal parties, it followsconclusively that, if he accepts of such promise, he becomesbound to observe the relationship of principal and suretyexisting between the principal parties, and must act inrecognition thereof."
This decision was rendered subsequent to, and therefore controlling over, the decision in the case of Iowa L. Tr. Co.v. Haller, 119 Iowa 645, relied upon in the majority opinion, which was based upon instruments made prior to the enactment of the Negotiable Instruments Law. However this may be, by necessary application of the relation of principal and surety existing between a promisor and a promisee, as between Dunkin and Clark *Page 179
Brothers, in the instant case, as recognized by the creditor, these defendants were released as to the plaintiff, after theextension of time by plaintiff to Dunkin and wife. This decision was brought down by reference and approval, so far as it was applicable in establishing secondary liability of defendants, to the case of Boice v. Coffeen, 158 Iowa 705, wherein Evans, Justice, speaking for this court, said:
"As between Steele, the mortgagor, and Coffeen, his grantee, who assumed the mortgage, Coffeen became the principal debtor;and the liability of Steele to pay the debt became secondary."
And then this court cited with approval the Malanaphy case, supra, holding that this principle applied to the creditor, requiring him to act in recognition thereof.
And without specific reference to this line of authority, although it is necessarily comprehended therein and obedient thereto, it was held, in the case of Union Cent. Life Ins. Co. v.Mitchell, 206 Iowa 45, discussing the application of the Negotiable Instruments Act, this court, speaking through Albert, Justice, by necessary legal implication, referred to and made applicable the rule embodied in the foregoing case. It is said:
"We are quite familiar with the rule that extension of time on an indebtedness, without the consent of the surety, releases the surety; but that doctrine has no application to the situation before us in this case. It is fundamental that, to make a valid extension of time such as would release the surety, there must be a consideration therefor; and there is no showing whatever in this case that, if this matter were to be treated as an extension of time, there was any consideration therefor; and further, there was no fixed time of extension. To our minds, this was not, in reality, such an extension of time as the law contemplates, but simply gave additional security for unpaid interest."
With reference to the decision of Corbett v. Waterman, supra, it is well to have in mind the following statement found therein:
"* * * until he [mortgagee] has done some act, or it in some manner sufficiently appears that he recognizes the purchaser or vendee as the principal and the original mortgagor as surety *Page 180
merely, both of them will, as to such mortgagee, be treated as principals."
It is clear, in the instant case, that the "promise and agreement" of Dunkin was the very "same act" contemplated in theCorbett case, by which the relation of principal and surety maybe established as against the creditor, as in the Malanaphy case, supra, where it became the established rule of law of this state, subsequent to the Negotiable Instruments Act, that, wherever themortgagee, having knowledge of the relation of principal andsurety existing, acts with regard to the parties thereto, he"becomes bound to observe the relationship of principal andsurety existing between the principal parties, and must act inrecognition thereof." This is just and proper, and this is just exactly what occurred in the instant case; for, when the plaintiff received the "promise and agreement" of Dunkin and his wife to pay the obligations at the end of another five years, on February 1, 1928, with interest at 6 per cent, instead of 8 per cent, as provided in the notes, and did accept from the said parties new coupon interest notes, which it continued to collect upon, in payment of the advance interest, it did such with knowledge of this relation and of the secondary liability of defendants; and therefore it cannot be held that plaintiff did not materially change the original contract, nor deviate from the original position of parties, with respect to the plaintiff, then knowing the relation of the parties to be that of principal and surety. Now to revert to and hold the original mortgagors, not upon the contract as originally made, but according to theagreement of Dunkin and wife with the plaintiff, is nothing short of a destruction of the legal rights of defendants.
Legally and logically, until the contract between the plaintiff and Dunkin and wife was made, there could be no question in regard to the right of the plaintiff to hold either or both Dunkin and the original mortgagors, as principals, for the obligations. This is true because, while Dunkin was principalbefore the new agreement, he was not principal under the newagreement until it was made; and when this new "promise and agreement" was made, he became principal to the plaintiff underit, together with his wife, as a new party, and under it alonecould the plaintiff sue the assuming grantee and his wife; and, *Page 181
concomitantly, the plaintiff could not sue these defendantsthereon, first, because they were not parties to the transaction,and second, because there would be a misjoinder of the parties tosuch a suit. I know of no compounding of remedies such as is necessarily and contrariwisely supposed in the majority opinion, and it is clear, therefore, under these conditions, that, as theMalanaphy decision holds, the mortgagee is "conclusively * * *bound to observe the relationship of principal and surety * * *,and must act in recognition thereof." Furthermore, the mortgagors, by reason of the change and alteration in the original contract as to the time of payment, the rate of interest, and the parties liable thereon, became released from all obligations thereunder; and this principle has been carried forward with approval, so far as applicable, in the case of Boicev. Coffeen, 158 Iowa 705, and, finally, into the decision ofUnion Cent. Life Ins. Co. v. Mitchell, supra. This, it seems to me, is the only legal and logical solution of the instant case, according to authority.
Even if the Negotiable Instruments Act does not apply restrictively to the instant case, then all the more reason forthe release of the defendants; because these defendants have shown, and indeed the plaintiff admits (by demurrer), the facts in the separate answer showing that the defendants were known by the plaintiff to be sureties, and that their liability for the mortgage obligations was secondary at the time of the promise and agreement with the Dunkins, as was held in the Malanaphy andBoice cases. This being true, then all the more reason why the mortgagors should be released, because it is a general principle of mortgages, well settled (see Jones on Mortgages [7th Ed.], Sections 741, 742, citing a long line of authorities, including the case of George v. Andrews, 60 Md. 26), that any alteration of the mortgage contract releases the mortgagor.
The Maryland court, in George v. Andrews, supra, held, and properly so, that any material alteration of the mortgage contract will discharge the mortgagor, and that the court will not inquire whether the alteration be beneficial or injurious, if it be a material one. And to like effect, and for the same reason, the Supreme Court of the United States, in the case ofUnion Mut. Life Ins. Co. v. Hanford, 143 U.S. 187, says that "itis for the surety alone to judge whether his position is alteredfor the worse." In 8 Corpus Juris 445, citing many cases, it is said that: *Page 182
"The general rule is that granting time to any of the parties to a note or bill is a discharge of every other party who, on paying it, would be entitled to sue the party to whom the extension is granted."
These authorities are comprehensive of the present case. The notes sued and declared upon are negotiable instruments in form. Therefore, the Negotiable Instruments Act applies, comprehensively of this defense between the original parties. The plaintiff knew of the secondary liability of these appellants, and it is obvious, under the decisions cited herein, that Section 9581, Code of 1924, applies in relation to the discharge from such instrument of one secondarily liable. This section reads:
"A person secondarily liable on the instrument is discharged: * * *
"6. By an agreement binding upon the holder to extend the time of payment, or to postpone the holder's right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved."
Why should we ignore this statute? Primary and secondaryliability relates to the remedy, and not to the character andlimits of the obligation itself. 8 Corpus Juris 43. 1 Joyce on Defenses to Commercial Paper (2d Ed.), Section 517, states:
"* * * it has been decided that a drawer of a bill may set up, in defense to an action against him, an extension of time so given [to an assumptor] * * * between the original parties." (Citing Auld v. Walker, 107 Neb. 676.)
There is no reason why we should in this case differentiate between or ignore the express statutory provisions governing negotiable instruments, or even nonnegotiable instruments to which defenses might be made under the terms of the Negotiable Instruments Act. The cases decided subsequent to 1902, cited by the majority opinion, are not applicable to or controlling of the law in the instant case. Let us examine the cited cases. InClarinda Nat. Bank v. Kirby, 191 Iowa 786, the only question involved related to whether or not fraud was practiced in securing the assumption of a debt. The case of Mowbray v. Simons, *Page 183 183 Iowa 1389, has no relation to the legal principal involved in the case at bar. It did involve the liability of an assuming grantee to pay the mortgage indebtedness. The mortgagor in that case was not a party to the action. In the instant case, the assuming grantee is not a party to this action; and by the ruling of the trial court, on plaintiff's motion, the relationship of principal and surety existing between mortgagor and the assuming grantee at the time of the "promise and agreement" of Dunkin is even denied a place in the pleadings.
The last case cited in the majority opinion is Baldwin v.Munger, 200 Iowa 32. This case was a proceeding in certiorari, to test the correctness of a ruling by the trial court in sustaining a motion for a change of venue.
Thus we come to the conclusion, derived from the facts in the instant case and the application of the law to those facts involving the relation of principal and surety existing as between the mortgagors and Dunkin, of which it should be said that, until Dunkin and wife made the agreement with the plaintiff, the latter could maintain a suit against both the mortgagors and the assuming grantee, as principals, but when, on February 1, 1923, with knowledge of the relation of principal and surety so existing, a new "promise and agreement" was accepted by plaintiff from Dunkin and his wife to pay to it the principal sum and interest thereon at the rate of 6 per cent, instead of 8 percent, and upon the giving therefor of new coupon interest notes, the instant plaintiff did, under the Fullerton Lbr. Co. andMalanaphy decisions, treat the said Dunkin and wife as principalobligors, and therefore could not thereafter maintain suit as against the mortgagors, but it was confined in its remedy, under the arrangements made by it with Dunkin and wife, to that agreement, and no other, and could not revert back to and hold the original mortgagors. And especially is this true by an action at law declaring upon the original obligations, and seeking and obtaining judgment according to the contract of the said Dunkin and wife, and not according to the original contract with defendants. We have heretofore recognized the correct rule, and we should follow it.
The rule herein stated is in accord with the authoritative rule prevailing in the majority of the states of the Union. It is *Page 184
the only uniform, true, and authoritative rule, and should be followed in and applied to this case. I would reverse.
KINDIG, J., joins in this dissent. | 01-03-2023 | 07-05-2016 |
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https://www.courtlistener.com/api/rest/v3/opinions/3431032/ | A brief summary of the facts out of which this controversy arose will enable us to better understand the legal question involved. Among the assets which came into the hands of M.E. Clapp, Receiver of the Mills County National *Page 1271
Bank of Glenwood, Glenwood, Iowa, was a note in the principal sum of $2,151.48, bearing date of May 10, 1932, and signed by John W. Johnson (now deceased) and Verna R. Johnson, which note was secured by a second mortgage upon 200 acres of real estate in Mills County, Iowa, which was junior to a first mortgage of approximately $21,000. The estate of John W. Johnson was insolvent and consisted of only the real estate covered by said first and second mortgages, and a small amount of exempt personal property. There were other judgments junior to the first and second mortgages of approximately $10,000. The firm of Genung
Genung were attorneys for Mr. and Mrs. Johnson and continued to represent Mrs. Johnson after Mr. Johnson's death. The matter of a compromise settlement of the Johnson item of indebtedness was agreed upon between the receiver and the attorneys for Mrs. Johnson, whereby this second mortgage note was to be settled for the sum of $500 and an assignment thereof made to N.S. Genung for Mrs. Johnson. This settlement was submitted to the Comptroller and was approved by him. The sum of $100 was paid down and the balance was to be paid when the note and mortgage were duly assigned and delivered. Before the matter was finally approved in open court the receiver requested that the matter be heard at a public hearing upon notice. Accordingly, the court set the matter down for hearing and ordered notice given by publication in a newspaper, the order reciting "that notice of said hearing be given to all creditors of the Mills County National Bank of Glenwood, Iowa, and to all persons interested therein." The day before the hearing, one L.C. Dean, appellant herein, filed what is denominated "objections to application to sell asset No. 223, John W. and Verna R. Johnson." He sets up in these objections that the offer of $500 was inadequate, and that he as objector had offered more for the purchase of said note and mortgage than the $500 offer. It developed at the hearing that his offer was $600. It appears that he had attempted to purchase the farm from Mrs. Johnson. Being unsuccessful in this, he purchased of the Metropolitan Life Insurance Company the first mortgage, paying therefor $19,000. He said he thought he would try to settle these mortgages and judgments and buy the farm if he could make a deal. Mr. Dean is a banker living in Glenwood. He was not a creditor and was in no way interested in the trust of the Mills County National Bank. There was no issue raised on his objection by *Page 1272
way of resistance or motion to strike. No evidence was introduced, except by appellant. The attorneys for Mrs. Johnson appeared and cross-examined the witnesses. The receiver appeared by his attorney, D.E. Whitfield, and at the conclusion of the hearing the court denied said objections and approved the offer of N.S. Genung and ordered and adjudged that the receiver be empowered and authorized to execute and deliver an assignment of said promissory note and mortgage to said N.S. Genung on payment of the sum of $500 in cash. The notice of appeal recites that the appeal is from "the order approving the application" to sell said asset.
N.S. Genung has filed a motion to dismiss this appeal, upon the grounds that L.C. Dean has no interest in the result of said appeal and is not such an interested party in said matter as to be affected by the determination thereof, that he has no direct, immediate, or pecuniary interest in the subject matter of the litigation and the order appealed from does not affect a substantial right of his, and that he has no such interest in the subject matter in which said order appealed from was made as to be aggrieved or prejudiced thereby.
The question with which we are confronted is, May an entire stranger to a cause of action or proceeding appeal from an order approving sale of an item of personal property belonging to the trust, his only relation to the matter being that he desires to purchase and is willing and ready and able to pay and offers to pay more? Was he a party to the proceeding before the court, or does he have an interest in the subject matter of the litigation such as to authorize him to appeal from the order of the court approving the sale? We think the matter has never been squarely before this court. At least our attention has not been called to any case involving the identical question. In the case of Van Der Burg v. Bailey, 207 Iowa 797, 799, 223 N.W. 515, 516, we said:
"The right of appeal is not an inherent or constitutional right. The legislature may give or take it away at its pleasure. In other words, the permission to appeal is a gratuity, and the legislature has the right to say upon what terms and conditions it will grant this right."
Appellant frankly states in his testimony: "I am not a creditor or interested in any way in the trust of the Mills County *Page 1273
National Bank." Therefore, his only interest in this litigation was that of a mere speculator, who, without associating with himself any one of the creditors or other parties interested in said trust, as an entire stranger to the proceeding, files an application resisting the approval of the sale of the item of property in question. His interests were no more than those of any other person who might be interested in the purchase of such item. He had no standing in a representative capacity by which he was seeking to protect the interests of creditors of the trust. He cites no statutory authority, and indeed there is none, granting to him any such right. The real controversy here centers about the widow, who has a very vital interest in this matter, who is seeking to save her farm by compromise settlement of this debt, and the appellant, who is seeking to obtain a favorable position as the owner and holder of the first mortgage by which he might deprive her of the only hope she could possibly have of retaining the farm, the meager equity in which, with a few household goods, constitutes her entire earthly possessions. With this situation before us we are called upon to view the cold legal proposition and ascertain whether or not appellant's right to maintain and prosecute this appeal is "nominated in the bond." Appellant has furnished us with no authority from this or any other jurisdiction to sustain his right to appeal. We have therefore been compelled to make our own independent investigation, and we have not succeeded in finding a single precedent directly in point.
The nearest approach to the question is found in cases where the property has been struck off or sold to the successful bidder, and, on objections to the approval of the sale, or where the matter has proceeded to the point where the sale has been approved and the court on application or objection has set aside his order and ordered a re-sale. In such cases it has been held in a few jurisdictions — and our own court has recognized the same principle in a few cases — that such a bidder becomes a party of record to the proceeding and would therefore have the same right as any other interested party to maintain an appeal from such an order. This is based upon the reasoning that when the bid is once accepted, and especially after the sale has been once approved by the court, it becomes a binding contract, enforceable against the bidder. Penn Mutual Life Ins. Co. v. Creighton Theater Bldg. Co., 51 Neb. 659, 71 N.W. 279. We have held that until the bid is accepted and approved it remains *Page 1274
nothing more than an offer. The bidder has parted with nothing. He has subjected himself to no liability, nor has he in any way been injured or aggrieved and can in no sense be held to be a party of record to the proceeding. As said in Harney v. Crowley,184 Iowa 1101, 1103, 169 N.W. 370, 371:
"The plaintiff, as bidder at the referee's sale, had no legal standing to demand an approval. His bid was an offer, and nothing more, and bound no party in interest until it had obtained the approval of the court."
Appellant argues that because the notice prescribed by the court contained the statement, "and to all persons interested therein," that the court had in mind bidders or prospective purchasers, and because the notice was thus addressed, that anyone and everyone who might be interested as a prospective bidder was thereby made a party to the proceeding. "Persons interested therein," as used in the court's order and in the notice, while in a broad general sense might be construed to include anyone who might be a prospective bidder, the term in its primary meaning and intent and purpose had reference to parties interested in the trust. The notice was to "the creditors and depositors of the Mills County National Bank of Glenwood, Iowa, and to all persons interested therein."
Appellant's theory that he is a party of record must therefore fail.
May he, by filing objections and proffering a bid, create in himself an interest in the subject matter of the litigation of such immediate and pecuniary nature or character as to bring himself within the class of persons whose interest would be adversely affected by the order of the court or the determination of the matter on appeal?
"A cardinal principle which applies alike to every person desiring to appeal, whether a party to the record or not, is that he must have an interest in the subject matter of the litigation, otherwise he can have no standing to appeal. And not only must a party desiring to appeal have an interest in the particular question litigated, but his interest must be immediate and pecuniary and not a remote consequence of the judgment." R.C.L., Vol. 2, page 52.
"The damage or grievance which entitles a party to a writ *Page 1275
of error or an appeal, within this rule, must be a direct and positive one, effected by the judgment concluding and acting upon his rights; and such damage must be by the record, and not in consequence of it." R.C.L., Vol. 2, page 53.
Manifestly, appellant's interest in the subject matter of the litigation does not bring him within the rule above announced.
Appellant likewise contends that objector's right to appear was not challenged in the court below, and therefore cannot be raised by motion to dismiss the appeal, and cites the case of Keeling v. Priebe, 219 Iowa 155, 158, 257 N.W. 199, 201, wherein the court said:
"`An objection based upon plaintiff's incapacity to sue should ordinarily be taken advantage of by defendant at his first opportunity, and before trial, verdict, or judgment. Defendant admits plaintiff's capacity to sue when he pleads to the merits, or files a counterclaim, or files his answer pending a demurrer for incapacity to sue. Failure to object at the proper time, as by demurrer or answer, constitutes a waiver of an objection based upon plaintiff's capacity to sue.'"
This principle could have no application here. Appellant's right to maintain this appeal could not be attacked in the court below and could only be raised as it is raised, by motion to dismiss the appeal. In the settlement of estates or trusts, whether in equity or probate, dealing with matters concerning which the court is called upon to exercise its judicial discretion the court — as a matter of grace or favor, in the interests of absolute justice to those interested in the trust property, — may permit a matter of this character to be called to its attention in any way not forbidden by law. As stated in McCallum v. Chicago Title Trust Co., 203 Ill. 142, 67 N.E. 823,824:
"The probate court, upon its own motion, had the right to refuse to approve the sale if the sale was improperly made, and the fact that its attention was challenged to the fact that the property had been sold for an inadequate sum, by a person who stood ready to pay more upon a resale than the property had been sold for, did not divest the probate court of power to decline to approve the sale and order a resale in case the sale had been improperly made. We do not hold that an intermeddler may appear in the probate court at any time and *Page 1276
object to the confirmation of a guardian's sale solely because he may think the property was sold for too small an amount, but do hold that when a prospective bidder at a resale appears in court, and offers to make a bid in excess of the amount for which the property was sold, and as evidence that his proposed bid is made in good faith deposits in court, in cash, an amount in excess of the amount of his proposed bid, upon the objection of such proposed bidder the court may properly investigate the question of the propriety of approving the sale, and, if it appears that there is legal objection to the approval of the sale, may disapprove the same and order a resale of the property."
Having by sufferance of the court been permitted to be the instrument by which the matter is called to the attention of the court, and the court having heard the objections, and in the exercise of his discretion determined the matter adversely to the contention of the stranger, may this stranger to the record, with no interest whatever in the estate or trust, prosecute an appeal to this court for review? We have not been able to find a single precedent where this has been even attempted without joining some other person having an interest in the subject matter of the litigation.
This brings up the final proposition of appellant wherein he asks this court that if we find that he has no standing to maintain this appeal, that the matter be left open and sent back, to the end that others interested might be joined with him, and he voices the assurance that such interested parties could be easily found. If the matter were of any considerable consequence to the real parties in interest, namely, the creditors, this last appeal of appellant might meet with our favor. But we cannot see our way dear to permit a continuation of further litigation over this matter involving a $100 raise in the bid. While there is some evidence to the effect that appellant might be interested in going even higher, the only bona fide bid made — and this was not accompanied by any certified check or cash — was $600, which was an increase of only $100. Based on matters of percentage, this is quite an increase over the former bid which was accepted by the court, but considered in the aspect of the per cent added to the total assets and the amount of increase to each of the several hundred depositors and creditors of the bank which would be occasioned thereby, the matter is inconsequential, if not *Page 1277
infinitesimal, especially when viewed in the light of the broad discretion vested in the court in matters of this character. This matter of the court's discretion is very ably set forth in an early Virginia case, Carr et al. v. Carr et al., 88 Va. 735,14 S.E. 368, 370, wherein the learned court said:
"The court in acting upon the matter was called upon to act in the exercise of a sound legal discretion, in view of all the circumstances. It is to be exercised in the interest of fairness, prudence, and with a just regard to the rights of all concerned. Opinion of Staples, J., in Brock v. Rice, 27 Grat. [68 Va.] 812, 816, citing Taylor v. Cooper, 10 Leigh [37 Va.] 317, [34 Am. Dec. 737]; Daniel v. Leitch, 13 Grat. [54 Va.] 195, 211, 214; Blossom v. Railroad Co., 3 Wall. [196] 205-207 [18 L.Ed. 43]; Ror. Jud. Sales, pp. 30, 55, 56. Judge Staples in that case says also, [27 Grat. (68 Va.) 812] on page 815: `Whether the court will confirm the sale must, in great measure, depend upon the circumstances of each particular case. It is difficult to lay down any rule applicable to all cases; nor is it possible to specify all the grounds which will justify the court in withholding its approval. If there is reason to believe that fraud or mistake has been committed to the detriment of the owner or the purchaser, or that the officer conducting the sale has been guilty of any wrong or breach of duty to the injury of the parties interested, the court will withhold a confirmation. Either party may object to the report, and the purchaser himself, who becomes a party to the sale, may appear before the court, and have any mistake corrected.' Roudabush v. Miller, 32 Grat. [73 Va.] 454; Berlin v. Melhorn, 75 Va. 639; Hansucker v. Walker, 76 Va. [753] 755; Langyher v. Patterson, 77 Va. 470; Terry v. Cole's Ex'r, 80 Va. 695. In the last-named case it is said: `Confirmation is the judicial sanction of the court. Until then, the bargain is incomplete. Until confirmed by the court, the sale confers no rights; until then, it is a sale only in a popular, and not in a judicial or legal, sense.' The chancellor has a broad discretion in the approval or disapproval of such sales. The accepted bidder acquires, by the acceptance of his bid, no independent right, as in the case of a purchaser at a sale under execution, to have his purchase completed, but is merely a preferred proposer until confirmation by the court of the sale, as agreed to by its ministerial agent. In the exercise of this discretion, a proper regard *Page 1278
is had to the interest of the parties and the stability of judicial sales. By sanctioning a sale, the courts make it their own. There is a difference between such sales and ordinary auction sales and sales by private agreement. In cases of sales before a master, the purchaser is not considered as entitled to the benefit of his contract until the master's report of the purchaser's bidding is absolutely confirmed."
The same rule is recognized in our own decisions. In the case of Harney v. Crowley, supra, we said:
"We think the district court should be deemed to have a large discretion in this class of orders, and that it is not necessarily bound to refuse its approval of the highest bid at referee's sale simply because somebody raises the bid at the time of presentation. It has, however, at all times, the undoubted power to refuse its approval of the high bid at the sale. Theoretically, it must be true, also, that a situation may be created at such a time as to make it the imperative duty of the court to refuse its approval. Whereas it may exercise its broad discretion to refuse a slightly higher bid, yet such discretion must become narrower in proportion as the increased bid should become larger. It must be true, theoretically, therefore, that the increased bid could be so large as to render it the imperative duty of the trial court to refuse its approval of the bid presented by the report of the referee. When that point is reached in a given case it may not always be a question of easy solution." Dyer v. Dyer, 220 Iowa 405, 262 N.W. 671.
The expense of litigation has already far exceeded the amount to be gained. It is "not worth the powder." — Appeal dismissed.
DONEGAN, C.J., and ANDERSON, PARSONS, ALBERT, MITCHELL, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430958/ | Shelley Cowman was convicted by a jury in Story County, Iowa, under an indictment charging him with the crime of larceny from a building in the nighttime. The material part of said indictment is as follows:
"The said Shelley Cowman on or about the 13th day of March [1946] * * * did steal, take and carry away 238 cartons of cigarettes in excess of value of $300, the property of one Jeffrey Houge, and the said stealing, taking and carrying away * * * was committed in the nighttime and the property * * * was taken from a building known as the Imperial Oil station."
To this indictment the defendant pleaded not guilty and former acquittal. From a verdict and judgment of guilty, defendant appeals.
Appellant urges three assignments of error as a basis for reversal: (1) The judgment in Case No. 2609 operated as an acquittal in the present Case No. 2632. (2) The court erred in overruling defendant's motions for a directed verdict. (3) *Page 58
The court erred in overruling defendant's motions in arrest of judgment and for a new trial.
I. Appellant's principal contention is his claim of former acquittal. At the instant trial it was stipulated by the parties, in substance, as follows: On April 8, 1946, a county attorney's information was filed, and approved by the Story County District Court, in which Shelley Cowman was accused of breaking and entering. The information contained the following:
"Shelley Cowman on or about the 12th day of March, 1946 * * * did break and enter the Imperial Oil and Gas Station * * * operated by one Jeffrey Houge * * * and did take and carry away about 260 cartons of cigarettes * * * belonging to the said Jeffrey Houge, and that said offense was committed sometime subsequent to about ten o'clock p.m. of March 12, 1946, and the early morning of March 13, 1946."
That on January 13, 1947, said Cowman went on trial on his plea of not guilty. A jury was impaneled, sworn, and trial commenced. On January 14, 1947, the county attorney, on behalf of the State, moved to dismiss the action for insufficient evidence to convict the defendant, due to the absence of a material witness. The motion was sustained, the defendant discharged, and his bond released.
It was further stipulated that the Imperial Oil and Gas Station, Jeffrey Houge, cigarettes, and dates referred to in the information are the same as referred to in the indictment in the instant case.
[1] The protection against double jeopardy is found in the old common law and also in both the Federal Constitution and our State Constitution. This court has held that the provision of the Federal Constitution applies only to offenses against and trials under the laws of the United States. See State v. Manley,197 Iowa 46, 196 N.W. 724.
Section 12 of Article I of the Constitution of Iowa provides: "No person shall after acquittal, be tried for the same offence."
(Italics supplied.) An acquittal, as defined by Webster's New International Dictionary, Second Ed., is: "A setting free, or deliverance from the charge of an offense, by *Page 59
verdict of a jury, sentence of a court, or other legal process."
Section 13807, Code, 1939 (777.20, Code, 1946) states: "A conviction or acquittal by a judgment upon a verdict shall bar another prosecution for the same offense" and in construing this statute we held in State v. Fields, 106 Iowa 406, 76 N.W. 802, that it did not exclude a conviction or acquittal without a verdict from having the same effect. See, also, State v. Callendine, 8 (Clarke) Iowa 288.
Under both section 12 of Article I of the Constitution of Iowa and section 777.20, Code, 1946, both of which refer specifically to another prosecution for the same offense, if the charge in the information in Case No. 2609 of breaking and entering is the same offense as charged in the indictment in the instant case, namely,larceny from a building in the nighttime, then appellant's plea of former acquittal was good and the defendant should have been discharged.
In determining the question "for the same offense," we said in the case of State v. Folger, 204 Iowa 1296, 210 N.W. 580, that an acquittal is a bar to a subsequent prosecution if proof of the subsequent allegations would have sustained a conviction under the indictment under which the acquittal was had; otherwise not. In State v. Jacobson, 197 Iowa 547, 549, 197 N.W. 638, 639, the test was announced to be:
"The rule now generally recognized is that, in order that the plea of former jeopardy may be available, it must appear that the two offenses are in substance the same, or of the same nature or same species, so that the evidence which proves the one would prove the other. If, however, an essential element of one offense is not necessarily present in the other, then there is no former jeopardy, although the same evidence may be offered to sustain the indictment in each case."
In the case of State v. Ingalls, 98 Iowa 728, 730, 68 N.W. 445, we held that an acquittal of larceny is not a bar to a prosecution for breaking and entering based upon the same facts. We there said: "The offense in one case was against the property broken and entered; in the other it was against the owner of the goods which were said to have been stolen." They are *Page 60
different offenses. See, also, State v. Leonard, 135 Iowa 371, 112 N.W. 784; State v. Shaffer, 59 Iowa 290, 13 N.W. 306.
[2] It is well established under the rules above stated, and in line with our decisions, that an acquittal of the charge of breaking and entering is not an acquittal of an offense in an indictment charging larceny from a building in the nighttime, based upon the same situation, and such a holding does not violate either section 12 of Article I of the Constitution of Iowa or section 777.20, Code, 1946.
[3] Appellant, however, also relies upon section 785.1, Code, 1946. This section provides:
"The jury must render a general verdict of `guilty' or `not guilty', which imports a conviction or acquittal on every material allegation in the indictment, except upon a plea of former conviction or acquittal of the same offense, in which case it shall be `for the state' or `for the defendant.'"
As before stated, the rule of double jeopardy comes to us from the old common law. However, Iowa is not a common-law state and all matters of crime and criminal procedure are statutory. Protection against double jeopardy is given under the article of the Iowa Constitution and statute above cited and discussed. The section now under discussion, section 785.1, Code, 1946, is not one dealing with the question of double jeopardy but is a statement by the legislature as to the force and effect of a verdict by a jury of "guilty" or "not guilty". The former pertains only to "the same offenses"; the latter, to any verdict in any criminal case.
Appellant can gain no comfort from this section for two reasons: (1) Case No. 2609, while constituting an acquittal of the offense charged, under section 777.20, Code, 1946, and under section 12 of Article I of the Constitution of Iowa, is not a verdict of a jury, which is the only matter involved in said section. The section is not applicable here. (2) Even assuming that said section was broad enough to cover a dismissal by the court, still the only matter which would be determined by the dismissal was the material allegation in the information. This is that appellant did "break and enter". See State v. Stack, *Page 61 221 Iowa 727, 266 N.W. 523; State v. Ingalls, supra, 98 Iowa 728, 68 N.W. 445; section 773.34, Code, 1946. While the information says "did take and carry away" this does not necessarily allege larceny. But even if the information goes far enough to charge larceny, and the proof showed larceny, it was material only as showing the intent of the breaking and entering. It was not a material part thereof and would not come under the provisions of section 785.1, Code, 1946. See State v. Hayden, 45 Iowa 11.
In the instant case the charge is larceny from a building in the nighttime. Giving full effect to section 785.1, Code, 1946, on the assumption that a dismissal by the court of Case No. 2609 is equivalent to a verdict by a jury (which we do not hold), still all that would be determined in that case is that appellant did not break and enter. He is not now charged with breaking and entering. True, the indictment charges larceny from a building, but as to how he entered the building is not alleged nor is it necessary to so allege.
[4] II. Appellant further alleges as error the refusal of the court to sustain his motions for a directed verdict. This raises the question of the insufficiency of the evidence, in addition to the claim of jeopardy. The record shows defendant was in possession of cigarettes, claimed by Jeffrey Houge to have been stolen from his place of business. The sufficiency of identification of the cigarettes was clearly one for the jury.
[5] Appellant further claims that the court erred in not instructing upon the impeachment of the State's witnesses. This may be answered by calling attention to the fact that we do not have in the printed record before us the instructions given in the case. What instructions were given does not appear. The question is not before us now. State v. Burns, 158 Iowa 440, 139 N.W. 1094; State v. Lauderbeck, 96 Iowa 258, 65 N.W. 158; McDowell v. Interstate Oil Co., 212 Iowa 1314, 237 N.W. 456.
III. Appellant's third assignment of error — the refusal to sustain a motion in arrest of judgment and grant a new trial — raises no new questions and is covered in Divisions I and II above. *Page 62
Finding no error, the judgment of the trial court is affirmed. — Affirmed.
OLIVER, C.J., and BLISS, HALE, GARFIELD, MANTZ, MULRONEY, and SMITH, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431154/ | The principal proposition to be determined is whether or not liability on the depository bonds in question ceased at the expiration of the county treasurer's term, or whether, so far as concerns deposits made during the authorized period, responsibility of the sureties continued thereafter until the designated bank repaid the funds to said subdivision of the state or said official.
F.D. McKay was such officer for the years 1923 and 1924, duly elected, qualified, and acting. That two-year term began January 2, 1923. Thereafter, McKay, with the approval of the board of supervisors, appointed the Perry National Bank 1. DEPOSITA- as the official depository for public funds. RIES: Accordingly, on January 3d and February 21st of bond: said year, that institution presented depository continuing bonds in the amount of $15,000 each, executed by liability of itself, as principal, and the Fidelity
surety. Casualty Company of New York and Fidelity
Deposit Company of Baltimore, Maryland, respectively, as sureties. These instruments were timely and properly approved. No time limit was specified in either; but early in the year 1924, there were filed by both appellants separate continuation certificates, purporting to extend the original bonds to January 1 and 2, 1925. Again, acceptance was legally made by the supervisors and the obligee.
In conformity with the privilege granted, deposits were made by appellee under the name of F.D. McKay, treasurer of Dallas County, Iowa, so that the balance on December 31, 1924, aggregated $19,377.37. McKay was re-elected, to succeed himself, and, on January 2, 1925, new qualification was made, and his bond sanctioned and indorsed by the county commissioners; but his accounts were not settled or ratified, because the checkers *Page 674
were working on the books, and bank difficulties were prevalent in the district. Meanwhile, additional appointment of the said bank was not made, nor was further "bond" given by it. Furthermore, said depositor drew checks on and received money from the banking concern in January, 1925, as follows: 2d, $1,000; 3d, $175 and $1,165.33; 5th, $.40 and $302.39; 8th, $500; 9th, $1,000; 12th, $217.79; 15th, $5,501.77 and $1,000; 19th, $5,056.54, $.40, and $334.36.
This use of said deposits was "for the specific payment of some obligation of the county," and not for the purpose of transfer. Afterwards, on the 20th day of said month, an order was drawn for $3,600, in order to transport that sum to the Adel State Bank, due to the fact that the "depository" refused to execute security for the ensuing two years. Said demand was rejected, and January 22, 1925, the drawee suspended business, and a receiver was later appointed.
Such balance is the subject of this suit.
I. Reversal is urged on the theory that: First, appellants' duty terminated when the expiration date of the "continuation certificates" arrived; and second, the withdrawals above listed were accomplished by a subsequent "treasurer," — not the beneficiary of said undertakings, for, even though the individual man is one and the same, the "officials" are different. While, in the abstract, appellants' proposition may be correct, yet, under the facts and circumstances of this case, we are constrained to hold that the action of the district court is right. Those binding compacts are substantially identical, and contain, among others, this provision:
"The condition of these obligations is such that if the said Perry National Bank * * * shall well and truly pay to the treasurer of Dallas County on demand, all sums of money now or hereafter deposited in said bank by F.D. McKay, treasurer * * *, and hold said treasurer harmless, and shall now, and at all times hereafter, well, truly and sufficiently save and keep harmless, and indemnify the said treasurer against any loss, suits, damages or claims whatsoever, both at law and in equity, which may arise, or accrue at any time against said bank, and in favor of said treasurer, by or on account of said deposits, then this obligation to be void, otherwise in full force and effect." *Page 675
Legislative enactment has provided for the "bond" under consideration. Code of 1924 stipulates:
"Section 7404. The county treasurer shall, with the approval of the board of supervisors as to place of deposit, by resolution entered of record, deposit state, county, or other funds in any bank or banks in the state to an amount fixed by such resolution * * *."
"Section 7405. Before such deposit is made, such bank shall file a bond with sureties to be approved by the treasurer and the board of supervisors in double the amount deposited, conditioned to hold the treasurer harmless from all loss by reason of such deposit or deposits * * *."
"Section 7406. Said bond shall be filed with the county auditor and action may be brought thereon either by the treasurer or the county as the board of supervisors may elect."
"Section 7407. Nothing done under the provisions of the five preceding sections shall alter or affect the liability of the treasurer or the sureties of his official bonds."
On several occasions we have held that a statutory "bond" 2. BONDS: cannot, by more or less phraseology, be added to statutory or detracted from. Zapf v. Ridenour, 198 Iowa bonds: 1006; United States Fid. Guar. Co. v. Iowa inviolabili- Tel. Co., 174 Iowa 476; Schisel v. Marvill, 198 ty of Iowa 725; Nebraska Culv. Mfg. Co. v. Freeman,
statutory 197 Iowa 720. bonds.
Liability of appellants in the premises must be measured by the standard of the legislation. Fundamentally, said act contemplates that, for the period of the "approval" named, "deposits" can be made by the treasurer. Equally true, then, must be the intent that, at least during the time specified in the "certificates of continuation," "deposits" could likewise be placed. It was during this interval that the "deposits" (which form the basis of this legal quarrel) were put into the bank. Business usage, as well as the letter and spirit of said written law, do not require that any part of said allotted "time" must be consumed in demanding and obtaining repayment. If, during the prescribed number of days, "deposits" are warranted, then, in logic, as well as law, the retraction and recall thereof must take place beyond that limitation and in the future. United States Fid. Guar. Co. v.City of Pensacola, 68 Fla. 357 (67 So. 87); 18 Corpus Juris 589, Section 63. See *Page 676 County of Hall v. Thomssen, 63 Neb. 787 (89 N.W. 393); Board ofCounty Com. v. Citizens' Bank, 67 Minn. 236 (69 N.W. 912).
Fittingly, it was said in United States Fid. Guar. Co. v.City of Pensacola, supra:
"The bond does not limit the time within which a demand for payment of drafts or checks drawn against the deposited funds shall be made * * *. The bond did not contemplate that all the moneys deposited to November 1, 1913 [time of bond expiration], should be demanded and paid during the period beginning with the date of the bond and ending November 1, 1913. The facts that the statute required the depositories to be designated for a period not exceeding one year, and that the designation referred to in the bond expired November 1, 1913, do not affect the obligation of the bond that the bank `shall faithfully account for and pay over all moneys' deposited to November 1, 1913, even though the moneys were left on deposit after November 1, 1913."
II. Material at this juncture is Section 7412 of said Code, containing this language:
"* * * each county treasurer shall at all times keep all funds coming into their possession as public money, in a vault or safe, to be provided for that purpose, or in some bank legally designated as a depository for such funds."
Thus, were it not for the proceedings taken in the case at bar, said public property must necessarily have been kept in the vault. Through the process adopted, removal was permitted to the Perry National Bank, to be left there, not for a small or even a large share of the approved "time," but for the whole thereof. Return to said safe was not within the purview of the action of the lawmakers, until the lapse at least of the intermittence implied by the status created; and this is so, not under the doctrine that it is a personal bond, but granting its true character. Auditing was imperative, for assurance that the public "fund" ostensibly in the "depository" was really there, and subject to conveyance to the succeeding "treasurer." Opportunity is essential to effectuate this. Utility of operation renders vital the protection in this emergency. Otherwise, the "treasurer" would not be held "harmless from all loss by reason of such deposit or deposits."
Liability is not for "deposits" after the expiration of said *Page 677
"bond," but those emplaced within the limits thereof. A reasonable "time" for such retirement is certainly allowed, and as to whether or not more is given, we do not decide.
Then, in view of the fact that the "treasurer" was beginning his new "term," and had not "settled" with the county, added to the delay produced by doubtful and fallen banks, we cannot say twenty days was unreasonably long.
III. By way of avoidance, it is insisted that proof is lacking that the conditions of the contracts were broken, due to the fact that the "old treasurer" has suffered no loss. Returning again to Section 7405, we find that the contractual 3. DEPOSITA- burden is "conditioned to hold the treasurer RIES: bond: harmless from all loss by reason of such deposit when or deposits." Upon his shoulders still rests the conditions weight of bringing forth the "deposits" and broken. making adjustment, in accordance with Sections 7408 and 7409 of said Code.
As said in State v. Rhein, 149 Iowa 76:
"It is the treasurer's duty to receive, safely keep, disburse, and account for all moneys payable to the county * * *. For the faithful performance of this duty he must give bond."
When this is done, he warrants that "he will render a true account * * *; that he will promptly pay over to the officer or person entitled thereto all moneys which may come into his hands by virtue of his office; that he will promptly account for all balances of money remaining in his hands at the termination of his office * * *." Section 1059, Code of 1924.
Consequently, if the "deposits" in said "depository" are not forthcoming, the mandates of said personal assumption cannot be met, and, except for the appellants' suretyship, there would come to said official "harm and loss by reason of such deposit or deposits."
IV. Argument is advanced to the effect that the "new treasurer" 4. BONDS: qualified and the supervisors "approved" his official second bond, and therefore, under Section 1057 bonds: of said Code, it must be conclusively presumed requalifica- that the "deposit" was ratified and transferred tion as own from the "old" to the "new official." Wording of successor: that section is: presumption.
"When the re-elected officer has had public funds or property in his control, under color of his office, his bond shall not *Page 678
be approved until he has produced and fully accounted for such funds and property to the proper person to whom he should account therefor; and the officer or board approving the bond shall indorse upon the bond, before its approval, the fact that the said officer has fully accounted for and produced all funds and property before that time under his control as such officer."
However, the presumption is directory and rebuttable. Palmer Seawright v. Woods, 75 Iowa 402; Boone County v. Jones, 54 Iowa 699; Carroll County v. Ruggles, 69 Iowa 269. Indorsement and pretended approval are not final, if, in fact, such truth does not exist. Palmer Seawright v. Woods, supra. Apparently, the items recovered, as above announced, were appropriated by the "new treasurer;" yet that does not mean that the residue was assigned to him, in the face of the record to the contrary. Conclusive evidence was offered at the trial, showing that the "old treasurer" was still unreleased, and no testimony was introduced to indicate, under the circumstances, that the bank had delivered the controverted "deposits" to the "new treasurer."
Other matters are presented, but they are not of such material character as to change the result.
The action of the district court in entering judgment against appellants, as sureties, was proper, and is affirmed. —Affirmed.
EVANS, C.J., and STEVENS, FAVILLE, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431159/ | The basis of the suit is a stipulation in the accepted application by defendants to plaintiff for contractor's bond, whereby defendants agree "to pay to the company upon the execution of the said bond, if it be a final contract bond * * * $1,066.26 in advance for two years and $1,066.26 annually in advance thereafter" until company's receipt of evidence of discharge, and "to pay to the company upon the completion of the contract an additional premium at the same rate, computed upon any increase of the original contract price as shown by the architect in charge of the contract." Defendant asks to have the application reformed by eliminating the stipulation for additional premium. The court, though not in terms denying, *Page 425
did not grant this relief. Defendants have not appealed, and though there is evidence in support of the claim for reformation, we give no further attention to it. Plaintiff's pleaded cause of action is merely one at law (though we infer the whole case was tried in equity, because of the cross-petition), to recover because the total contract price for the work amounted to $271,731.12, instead of $106,625.68, as stated in the application. Defendants' contention is that the correct interpretation of the application requires the payment only of $1,066.26, which has been made.
Defendants had procured a street-grading contract, which recites that the amount of the work was estimated at 115,271 cubic yards of excavation, "more or less." The contract required the dirt removed to be placed on such streets or other property as the city official might designate. Defendants agreed to do the work "at the price of $0.925 per cubic yard for excavation of all material except rock * * * $2 per cubic yard for rock, the haul to be two thousand (2,000) feet or less from the center of gravity of each block. All greater distance than two thousand (2,000) feet * * * shall be overhaul and shall be paid for at the rate of two cents (2c) per cubic yard per one hundred (100) feet of overhaul which shall be in full compensation for the cost of the entire work, and the city of Des Moines shall not be liable to said party of the first part for extras of any kind, or for any damages which he may sustain by coming in contact with sand, water, or any other unforeseen obstacles or material, except rock, or by reason of unfavorable weather, it being expressly understood that the contract price above specified shall be in full for all work done under this contract." Butters, who was the representative of P.J. Clancy Company, plaintiff's general agents, and who was "licensed" by plaintiff as its agent, solicited defendants for the bond. Other companies were also seeking, the business. Defendants told Butters that the contract had an overhaul clause in it. Butters investigated at the city hall. "He just came back and submitted me [one of defendants] his price." (As we are not considering defendants' claim for reformation, we do not take into account the testimony in behalf of defendants relating to the alleged oral agreement between Butters and defendants.) Butters went out of defendants' office, and later returned, with the application *Page 426
sued upon. This was on a printed form. Much of the data called for by the printed form was not filled in. The application as presented and signed contained data and blanks as follows:
"5. Penalty of bond: $53,400 * * *
"6. Contract price: $106,625.68. If the contract price is per unit of measure, state here the probable total amount of the contract: $__________
"7. Name and address of the architect or engineer in charge: _________________________
"8. The architect's or engineer's estimate of the cost of the work: $__________ * * *
"15. Amount of contract price retained until work is completed: $106,375. * * *
"32. * * * In consideration of the execution by The Iowa Bonding and Casualty Company, * * * of the bond herein and hereby applied for the undersigned ____________________ agrees as follows: 1."
Here follows the stipulation of the application sued upon, as above set out. The contract is dated February 9, 1920; the bond, February 12, 1920. Butters, on September 17, 1920, collected of defendants the $1,066.26.
Butters told defendants, during the negotiations for the bond, that he had examined the contract with the city. Defendants "did not give information with regard to the bond" to Butters. More than two years after the work was completed, plaintiff asked for additional premium. The bond is in the penalty of $53,400. The bond recites, in the language of the contract (which Butters evidently got from the city hall): "The amount of work is estimated at 115,271 cubic yards of excavation more or less."
Final estimates were ordered paid February 11, 1921. By them the total amount for excavation was $114,813.78, and for overhaul $156,917.44, a total of $271,731.22. There were long overhauls, and the difference between the amount of the estimated contract price and the amount finally allowed was due to the overhauls. Plaintiff introduced evidence "that premiums on bonds of this kind are computed upon the amount of the contract price. The rate upon city contracts for grading was $10 a thousand. That was the customary premium in force * * * *Page 427
and one per cent of the contract price * * *" It is not shown that any price except $1,066.26 was made to defendants, or that defendants were in any wise apprised (unless it be by the stipulation of the application sued on, which defendants say, without contradiction, they did not read) that any price or premium was in contemplation or called for other than the $1,066.26. Plaintiff does not claim fraud or mistake. It does not appear that defendants knew of the customary premium alleged. The plaintiff says that the estimated yardage of 115,271, in connection with the price of $.925 for excavation, as stated in the contract, and the estimated total contract price of $106,625.68, as stated in the application in connection with the premium, $1,066.26, show that the premium was merely provisionally computed on the basis of the estimated yardage and the agreed price for excavation. The computation, however, on that basis only approximates the stated contract price, and the application, while it states the contract price to be $106,625.68, says that the amount to be retained is $106,375. The printed form for the application appears to have been designed for contract bonds generally. It gives the contract price as $106,625.68. Defendants did not represent that sum as the contract price. The grading contract did not set out those figures or any other figures except the estimated yardage and the unit prices for the work. The computation of premium must have been made by plaintiff's agent Butters, who was not a witness. In connection with the statement in the application of the contract price, which plaintiff, through defendants' own agent, inserted on his own information, is the inquiry, "If the contract price is per unit of measure state here the probable total amount of the contract." No answer to this inquiry is inserted. Yet the contract, as plaintiff knew, was entirely on the basis of unit of measure both for the excavation and the overhaul (though the length of the overhaul, as the evidence shows, could not have been estimated). The reasonable inference from this and the facts about to be recited is that the bond was asked for and was granted on the basis of a gross contract price, as estimated by plaintiff through its agent, of $106,625.68. Another inquiry in the application for "the architect's or agent's estimate of the cost of the work," was not answered. The stipulation of the application on which the suit is based is that defendants, "on completion of the contract," *Page 428
will pay "an additional premium at the same rate computed upon any increase of the original contract price as shown by the architect in charge of the contract." The application did not give the estimated yardage, though that was set out in the contract, which plaintiff's agent apparently examined for himself. Defendants did not compute, nor were they, so far as appears, informed of the basis of plaintiff's computation of, the rate of premium, or of the original contract price. There was no increase of the original price. That price was fixed by the contract at $.925 per cubic yard for excavation and 2 cents per cubic yard per hundred feet overhaul. That price was never increased. There was no architect in charge of the contract. There was an engineer, and one of the inquiries in the application was for the architect's or engineer's estimate of the cost of the work. This inquiry was not answered. Plaintiff, through its agent Butters, apparently got for itself the information that it desired. The stipulation sued on does not by its terms require defendants to pay additional premium for uncomputed or unexpected overhaul. We see no reason for giving to the clause sued upon the meaning that defendants should pay an additional premium, computed not upon increase of unit price, but upon unrepresented, possibly unexpected, amount of overhaul. The overhaul was merely noncomputed and noncomputable. No representation of the amount of the overhaul was given; no estimate made, or limitation prescribed. The application was prepared by plaintiff's agent, on information procured by himself, and plaintiff must take the responsibility for it, even though defendants did not read it. Fitchner Co. v. FidelityMut. Fire Assn., 103 Iowa 276. If, as plaintiff contends, plaintiff had the right to rely upon the application as written by its agent, and the agent had no authority to make a different agreement, the defendants have the right to rely upon the application as written and prepared by plaintiff's agent on his own investigation, estimates, and computations. The application was prepared by plaintiff, and doubts as to its meaning must be resolved against it. — Affirmed.
ALBERT, C.J., and STEVENS, De GRAFF, and WAGNER, JJ., concur. *Page 429 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431164/ | I am unable to distinguish the case before us from the Marathon
case; but, in studying this case in connection with the Marathon
case, I have become convinced that the decision of that case is wrong. That decision was based on Section 3825-a of the Code Supplement of 1913, which was a general receivership statute, and, I think now, was not intended to and did not apply to receiverships for banks, and did not supersede Section 1877 of the Code of 1897, which did apply to banks. Having reached this conclusion, I concur in the majority opinion in this case. *Page 199 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431214/ | [1] As the appeal is presented the chief complaint of the plaintiff against the decree of the court is that it charges her share in the joint property with one half of the enhanced value thereof, which increase in value was found by the court to have resulted from improvements placed on the ground and paid for by the defendant J.H. Wiggins. Her contention is that, although she contributed nothing to any improvement placed on the bare acre of ground, the value of which *Page 731
at all times pertinent was but $150, she is, nevertheless, entitled to one half of the value in excess thereof, all of which resulted from defendants' improvements. On March 5, 1946, Mr. and Mrs. J.H. Wiggins sold this property by written contract for $8,250. By agreement of the parties the purchasers are to pay the purchase price to a referee appointed by the court as soon as an abstract showing good title and the referee's deed are furnished. Plaintiff does not question that the enhanced value, as evidenced by the sale price, was due to the improvements. The able trial court found that the claim, so vigorously pressed by the plaintiff, "as a matter of equity and fairness * * * entirely lacks foundation." We agree fully in this finding and conclusion.
Louise M. Indra, a maiden of twenty-eight years, and James H. Wiggins, a boy of about twenty, were married in 1938. She had been working in Cedar Rapids, and he was living with his parents on a farm about two miles north of Marion, in Linn county. For two or more years they lived in an apartment in Marion. No issue was born to them and they adopted a little boy. They desired a home of their own. Louise had saved about $1,000 from her premarriage earnings, and sometime after the marriage her father, John F. Indra, gave her $1,000. The father of James owned a forty-acre timber pasture just across the road from his parental home. On June 17, 1941, the parents of James went to a lawyer in Cedar Rapids and executed a warranty deed, there prepared, conveying to J.H. Wiggins and Louise M. Wiggins, husband and wife, as joint tenants and not as tenants in common, with right of survivorship, an acre of ground out of said forty-acre tract. The recited consideration was $1 and other valuable consideration. The lawyer had the deed recorded and then placed it in an envelope and mailed it or handed it to James. He paid little attention to the deed and thought it conveyed title to himself only. He took it directly to the building and loan association without knowing or understanding that the deed was to him and his wife as joint tenants. He never knew this until he was so informed by a letter he received from plaintiff's attorney herein on September 22, 1944. Louise never had seen the deed. *Page 732
Sometime after receiving the deed from the scrivener, James negotiated a loan of $2,000 with the Linn County Building and Loan Association of Marion, and he and Louise executed their note therefor, and secured its payment by their mortgage on the acre of ground. The date of this does not appear. He entered into a contract with a builder for the construction of the house. From her savings before marriage she contributed toward the building $1,900. The contract price was $4,075, but, as usually happens, there were extras and the cost overran the contract price. The contractor had not allowed for a stairway to the second story and the extra cost therefor was between three and four hundred dollars. James dug the basement and a trench for about three hundred feet for piping water. He also dug a sewer ditch from the house to the toilet, a distance of about one hundred fifty feet. He painted the house outside and inside and finished the floors. The house was built of the best material and modern in every way. There was a full basement and two floors above. The house was heated with a furnace and lighted with electricity. Some of the rooms in the second story were not fully finished. This was also true of the basement. The improvements at that time fairly represented an outlay in money and his labor approximating $5,000. The home was comfortably furnished. From his earnings he had reduced the mortgage to about $1,400. What his work was does not appear, except his name on a letterhead indicates his association with another in the dairy business.
But marital discord entered the home. What its cause was and when it arose is not disclosed in the record. They talked together about divorce. He consulted Charles J. Haas, a lawyer of Marion, formerly on the bench of the Eighteenth Judicial District of Iowa, whom the trial court spoke of as "a highly skilled and meticulous lawyer." She talked with a friend, but whether he was a lawyer does not appear. She employed no lawyer but consulted four or five times with Judge Haas. Usually one or both of her married sisters or her father was present at these conferences, and once or twice her husband was present. She brought to Judge Haas a written itemized *Page 733
statement showing the furniture and household furnishings which she wished. Apparently she received a fair share thereof. In this statement were the items: "Louise's cash investment in house," and "$500 cash settlement." The matter of the house and lot was never discussed at these conferences, because Judge Haas had asked James about the title and he had told him the deed was to him. Louise never told the judge anything different, and when he prepared the property settlement stipulation, and the divorce decree, no mention was made of the real estate. James H. Wiggins was the plaintiff in the suit. Louise signed a written appearance and waiver of notice and time of hearing. The stipulation, signed by both parties on February 21, 1944, stated: "* * * the property rights of the parties and the custody of the adopted child * * * [are] hereby settled and agreed upon as follows * * *." It provided that within ten days after decree James was to pay $2,403, "in full of all claims for alimony, money advanced, and for any and all claims of whatsoever kind and character that the said Louise has or claims to have against the said James." The personal property was listed. The custody of the adopted boy was given to James. Judge Haas testified that the $2,403 was made up of the $500 cash alimony item and $1,903 was to reimburse Louise for the money she had furnished toward the house-building expense. The judge also testified that before drawing the stipulation he asked Louise if it was to settle everything and all matters that were between them, and she replied that it did. He told her that James had no ready money and could raise the $2,403 to pay her only by placing a mortgage on the residence, and that it would be better if the decree of divorce was first procured, and then she would not have to sign the mortgage papers and James could execute the mortgage on the house and lot, which would require about ten days. Louise agreed to this and never mentioned anything about her having an interest in the home. She testified that she never knew that her name was in the deed or that she had any interest in the property. The decree of divorce was rendered on March 17, 1944. It decreed that James H. Wiggins had established the allegations of his petition and was entitled to the divorce. *Page 734
The stipulation was made a part of the decree by reference. The decree recited that:
"Except as provided in this decree, neither of the parties shall hereafter have any interest in the property of the other."
On the day the decree was granted Judge Haas sent Louise a certified copy of it and told her that James would have to execute a mortgage and have the abstract of title extended to show the decree and that he would notify her when she could get her money at the clerk's office. To procure the money, James, on March 28, 1944, executed to the Linn County Building and Loan Association his note for $3,000 secured by his mortgage on this residence property. This satisfied the $1,400 owing on the old mortgage, and left him $1,600 to apply on the $2,403 owing Louise. He borrowed enough of his father to settle in full with her.
Louise moved out of his home and took with her all of her possessions therein as soon as the decree was granted. He remained in the home, and, on August 7, 1944, he married the second Mrs. Wiggins. She had money of her own which she placed in a joint account with him. Out of this fund, on September 2, 1944, he paid $2,906.32 to satisfy the balance owing on the mortgage of $3,000. After the second marriage the house was completed by finishing the upstairs and basement and putting a recreation room in the latter. The grounds were landscaped and fenced, and a chicken house was built. The house was carpeted downstairs at an expense of $398.13. Awnings were put on the house. These carpets and awnings went with the property when it was sold. These improvements were paid by checks on the joint account amounting to approximately $1,500.
The original outlay for the house and the later additions made the total cost of the improvements on the ground approximately $6,500. Louise paid no part of this. What she had paid on the original contract price had been returned to her. The entire cost of the improvements had been paid for by James. Plaintiff in argument seeks to make something of *Page 735
the fact that James procured some of the money from the second Mrs. Wiggins. That fact does not aid the plaintiff. James procured the money to make the improvements and the source thereof is immaterial. Plaintiff has no more right to unjustly enrich herself from the property of Mrs. Wiggins than she has to do so from the property of Mr. Wiggins.
The improvements made were of a substantial and lasting character. They were necessary and proper to make the home a better and more habitable place to live in. They were not a special or peculiar benefit to the improver alone but were of a kind and character as would be a benefit and advantage to any owner or occupant of the premises. They added to the market value of the property.
All of the improvements were made in good faith and in the honest belief of Mr. Wiggins that he was the sole owner in fee of the property. He had never examined the deed since he received it, except to hastily look at it when he took it to the loan company. If he did read it the term "joint tenancy" probably meant little to him. He thought that the decree of divorce divested his wife of all title and interest in the property and that it was his to do with as he pleased. Louise had asked for the return of all of the money she had put into the property. He gave it to her and thought that he was settling with her for such interest as she had. Judge Haas thought that the divorce settlement and decree was a dissolution of all title and interest that Louise had in both the residence and its contents. It is not surprising that James thought so. The evidence, the legitimate inferences therefrom, and the conduct of Louise all indicate that is what she thought also. She testified that for some reason she and a sister, in August or September 1944, looked up the record of the deed in the county recorder's office and learned of her joint ownership.
Her testimony is equivocal and contradictory, and it, and much of the testimony in her behalf, is not convincing.
The trial court saw and heard the parties and the witnesses, and in its opinion and ruling said:
"The entire course of dealings between these parties leads this Court to the certain belief that the facts are as detailed *Page 736
by Wiggins. If either or both parties thought that the ownership of the real estate was joint the matter would certainly have been raised during their negotiations over the settlement of their property rights. Judge Haas * * * would never have left the matter in its unsettled and uncertain condition had either party ever suggested to him that there was any question of joint ownership of the realty. The attitude of both parties is strongly indicative of the fact that each considered that the realty was the sole property of Wiggins. Defendant's [plaintiff's] insistence upon repayment to her of the sum of something over nineteen hundred dollars which she had advanced for the building of the house, is further evidence that she expected no further claim upon or right to the property."
The court, among other facts, found:
"1. That the stipulation of settlement in the divorce case was intended to settle all rights of the parties with reference to their joint property, but is silent as to any division of the real estate, except that it refers to money advanced by the defendant [plaintiff] Louise M. Wiggins, which money the Court finds * * * was advanced by her for the purpose of aiding in the construction of the house involved herein, and which was repaid to her.
"2. That the said Louise M. Wiggins, at or very shortly prior to the granting of the decree, removed from said house, and made no claim for any interest therein until about six months afterwards. * * *
"4. That James H. Wiggins, although in possession of said deed, in good faith believed at all times, until about September 22, 1944, that it conveyed to him full title.
"5. That the reasonable value of said lot unimproved is the sum of $200.
"6. That the reasonable value of the lot as now improved with the house, is the sum of $8,250.
"7. That James H. Wiggins, during the period of the co-tenancy, has made improvements upon the said unimproved lot, which has enhanced its value in the sum of $8,050. * * *
"12. That no communications or discussions were had between *Page 737
James H. Wiggins and Louise M. Wiggins prior to the execution of the stipulation of settlement in the divorce case, concerning the ownership of the real estate, and that this was for the reason that each of them then believed the said James H. Wiggins to be the full owner of said real estate."
Although the belief and opinion of the trial court was as it expressed itself above, its conclusion was that the erroneous belief of James and Louise Wiggins and of Judge Haas could not obviate the fact that the deed did vest title in the grantees as joint tenants. It therefore declined to attempt to nullify this fact by any modification of the decree of divorce. But the fact that the title to the lot rested in the grantees as joint tenants does not impeach the good faith or honesty of James H. Wiggins in believing and acting to the contrary. Wiggins at all times believed he was the sole owner of the lot and so alleged and testified in the trial below. The trial court rightly held that he and the plaintiff were joint tenants, but that holding does not aid the plaintiff, nor does it deprive the defendant of the benefit of the well-recognized principles of equity jurisprudence which rule this case.
In its "Conclusions of Law" the court stated:
"2. Where one cotenant improves the real estate, in a partition action, the improving cotenant will be allowed such amount as the improvements enhanced the value of the property * * *.
"3. The cotenant in possession must account to the other cotenant for the reasonable rental value of the property.
"4. * * * the improvements added by the cotenant will not be considered in determining [the] reasonable rental value."
[2] I. The first conclusion of law of the trial court stated above expresses an ancient principle of equity jurisprudence which has been consistently adhered to in partition suits since courts of chancery in England took exclusive jurisdiction of such actions. The courts and authorities in this country have enforced the principle since Colonial days. Story expressed it thus: *Page 738
"So where one tenant in common, supposing himself to be legally entitled to the whole premises, has erected valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give him the benefit of his improvements; or, if that cannot be done, he will be entitled to a compensation for those improvements." 1 Story's Equity Jurisprudence, Fourth Ed., sections 655, 656.
As stated by the annotator in 1 A.L.R. 1190:
"The reason of the rule allowing compensation to the improving tenant in common is that when his improvements enhance the value of the common estate, and his cotenants are not injured in any way or hindered from having partition, they should not be permitted to take advantage of improvements which enrich the common property, and to which they have contributed nothing." Citing Helmken v. Meyer, 138 Ga. 457, 75 S.E. 586, 45 L.R.A., N.S., 738.
It is essential to the allowance of such compensation that the improvement adds to the value of the property at the time of the partition. The improvement must not be a foolish or an improvident one, or merely to meet the whim or caprice of the improver. The right to compensation and the extent of the allowance are determined by the resulting increase and enhancement in the value of the property.
It has been expressed thus by the Texas Court of Civil Appeals, in Spicer v. Henderson, 43 S.W. 27, 29:
"The right of one tenant to claim the value of improvements * * * is founded upon his right in the land, and the extent of the allowance is measured by the extent of benefit derived therefrom in the partition by his cotenant. To the extent only that the value of the land received in partition by such cotenant is enhanced by the improvements placed thereon is he bound to reimburse the tenant making the improvements."
The cost or price of an improvement or the original amount expended in making it is not a controlling factor in determining the proper compensatory award, because, as has been said, *Page 739
another cotenant might be "built out of" his share in the property by the extravagant and unsound investment of the cotenant in possession or the utility of the improvement exhausted or its value depreciated at the time of the partition. As the cost of the improvement may not correctly measure the added valuation because of its depreciation, it also may not be a proper criterion, because the improvement may result in an appreciation in value in excess of amount expended. Such an increase of value may be caused by a rise in the cost of labor and materials.
[3] Another requisite in the allowance for improvements is the good faith and the honest intentions of the improver. An often-cited and much-quoted definition of the term "good faith," as used in the matter under consideration, is found in Hall v. Piddock, 21 N.J. Eq. 311, 314, to wit:
"The only good faith required in such improvements is that they should be made honestly for the purpose of improving the property, and not for embarrassing his co-tenants, or encumbering their estate, or hindering partition. And the fact that the tenant making such improvements knows that an undivided share in the land is held by another, is no bar to equitable partition."
The element of good faith is an important factor in the consideration of a court of equity. For it will apply the principle of awarding compensation for beneficial improvements not only in cotenancy but to any person who honestly and in good faith, but by excusable mistake, improves the land of another, thinking that it is his own. In the case of Whitledge v. Wait's Heir, 1804, Sneed (Ky.) 335, 336, 2 Am. Dec. 721, 722, a bona fide occupant of land — not a cotenant — believing himself the owner, was held entitled to be paid the enhanced value of the land because of his improvements, by the evicting owner. The court said:
"The principle that `no person ought to profit by another's loss,' is peculiarly applicable to this case, where the possessor of a subject, which he bona fide considers to be his own, bestows *Page 740
his money and labor on reparations and ameliorations; the proprietor claims the subject and prevails; he profits by the meliorations, and the money and labor bestowed thereon are converted to his use. Equity requires that the bona fide
possessor should be reimbursed. * * * Lord Kaimes, in his Principles of Equity, page 106, states that `the titles of landed property being intricate and often uncertain, instances are frequent, where a man, in possession of land, the property of another, is led by unavoidable error to consider it as belonging to himself; his money is bestowed without hesitation on repairing and meliorating the subject. Equity will not permit the owner to profit by such mistake, and in effect to pocket the money of the innocent possessor; he will be compelled by a court of equity to make up the loss, as far as he is richer.'"
[4] Another factor akin to that of good faith is the matter of the knowledge or consent of other cotenants with respect to the improvements. Of course, ordinarily, one cotenant cannot voluntarily improve the common property, and then by direct action, particularly at common law, compel another cotenant to contribute his proportionate share thereof. He cannot thus make another cotenant his debtor against his will, or thereby subject the share of that cotenant to a charge or a lien therefor. Many decisions hold that this cannot be done, with respect to even necessary repairs, unless there has been a request and a refusal of the cotenant to participate. See Mumford v. Brown, 6 Cowen (N.Y.) 475, 16 Am. Dec. 440; Taylor v. Baldwin, 10 Barb. (N.Y.) 582, 590; Doane v. Badger, 12 Mass. *65 [reprint, 68]; Calvert v. Aldrich, 99 Mass. 74, 77, 96 Am. Dec. 693-697; Crest v. Jack, 3 Watts (Pa.) 238, 27 Am. Dec. 353, 354, 355; Kidder v. Rixford,16 Vt. 169, 42 Am. Dec. 504, 506, 507 (though it is otherwise under the civil law, Percy v. Millaudon, 6 Mart. (La.), N.S., 616, 17 Am. Dec. 196); Cooper v. Brown, 143 Iowa 482, 487-492, 122 N.W. 144, 136 Am. St. Rep. 768; Shelangowski v. Schrack, 162 Iowa 176, 180-182, 143 N.W. 1081.
But the rule stated just above has no application in the case before us, or in any case where the question of the allowance *Page 741
of compensation for repairs or improvement on property held in joint tenancy or tenancy in common arises in partition or accounting, in equity. The argument and citation of authorities by counsel for appellant indicate an avoidance of this distinction. The distinction is recognized in Shelangowski v. Schrack, supra, 162 Iowa 176, 180, 181, 143 N.W. 1081, and in other decisions of this court which we will refer to.
The general principle is stated as follows in 21 Am. Eng. Ency. of Law, Second Ed., Partition, 1170:
"A court of equity, in decreeing a partition, does not act ministerially, and in obedience to the call of those parties who have a right to the partition, but bases its action upon the general jurisdiction given to courts of equity. It will, therefore, on a bill for partition, adjust the equitable rights of all the parties interested in the estate so far as they relate to and grow out of the relation of the parties to the common property."
In 1 A.L.R. 1189 (see, also, pages to 1225), it is stated:
"While at common law a tenant in common could not claim contribution in an action at law for necessary improvements made on the common property, without the consent of his cotenant, nevertheless, inasmuch as an action for partition was essentially equitable in its nature, a court of equity was required to take improvements into account when decreeing partition, and to award to the cotenant in possession, who had necessarily and in good faith improved the common property and enhanced its value at his own cost, such equitable compensation as would leave only the value of the estate, without the improvements, to be divided among the tenants in common. This relief was granted in actions in partition, in keeping with the familiar principle of equity jurisprudence, which requires that one who seeks equity must do equity. The rule in this behalf has been adopted and applied, with but rare exceptions, in every jurisdiction where the action for partition is considered as one calling for equitable interposition and relief."
A like statement appears in 40 Am. Jur., Partition, section 39, and section 44. *Page 742
The question of compensation for improvements in partition suits in equity is fully discussed in the footnotes to Robinson v. McDonald, 11 Tex. 385, 62 Am. Dec. 480, 482-487, where the annotator, on page 486, states:
"But the general rule undoubtedly is that an assent on the part of the co-tenants need not be shown, nor is it necessary to show a previous request and refusal: Freeman on Cotenancy and Partition, sec. 510; Green v. Putnam, 1 Barb. 500; Martindale v. Alexander, 26 Ind. [104], 105 [89 Am. Dec. 458-460]; Drennan v. Walker, 21 Ark. 539; Hall v. Piddock, 21 N.J. Eq. 311. A correct summary of the law, we conceive, on this subject, is that made by the supreme court of New York in Green v. Putnam, 1 Barb. 500: `Where one tenant in common lays out money in improvements on the estate, although the money so expended does not, in strictness, constitute a lien on the estate, yet a court of equity will not grant a partition without first directing an account[ing] and a suitable compensation; or else in the partition it will assign to such tenant in common that part of the premises on which the improvements have been made. To entitle the tenant in common to an allowance on a partition in equity, for the improvements made on the premises, it does not appear to be necessary for him to show the assent of his cotenants to such improvements, or a promise on their part to contribute their share of the expense; nor is it necessary for them to show a previous request to join in the improvements, and a refusal.'"
See like statement in 1 A.L.R. 1218, and supporting decisions, and page 1200 of said volume, where it is stated:
"The equity of a cotenant to have the part of the common property which he has improved allotted to him on a partition is not founded on the idea that he made the improvements with the consent, express or implied, of his cotenants. * * * But, having a right, as a tenant in common, to improve the property without the consent and against the will of his cotenant, and not having a lien on it for his improvements, he can be indemnified therefor, only in a partition in equity." (Citing cases.) *Page 743
In Mastin v. Mastin's Admr., 243 Ky. 830, 836, 50 S.W.2d 77, 79, the court said:
"Where the common property has been improved by one cotenant, if in an action for partition the common property is not susceptible of a division, the improver on a division of the proceeds of a sale thereof, should be allowed the enhanced value of the whole by reason of the improvements, and not the cost of his improvements, whether the improvements were made with or without the consent of the other cotenant, tenant in common, or coparcener." (Citing cases.)
In Dalgarno v. Baum, 182 Va. 806, 30 S.E.2d 559, the court held that generally, under equitable rule against unjust enrichment, a joint tenant who at his own expense places permanent improvements upon common property is entitled in a partition suit to compensation for improvements whether cotenants assented thereto or not.
In Brunt v. McLaurin, 178 Miss. 86, 172 So. 309, it was held that one who improved a property in the honest belief that he owned it was not barred from reimbursement out of the proceeds of a partition sale because there was a duly recorded deed indicating the existence of the claim of another to an undivided interest in the property. In Carver v. Coffman, 109 Ind. 547, 10 N.E. 567, 569, the court held that while the law will not ordinarily compel one cotenant to pay for improvements made in good faith, but without his authorization, yet it will not allow him to take advantage of improvements for which he has contributed nothing. This holding was followed in Jackson v. Wilson, 87 Ind. App. 636, 158 N.E. 922, 161 N.E. 829 (rehearing denied). For other decisions allowing compensation for improvements where no knowledge or consent on the part of other cotenants was shown, see Carson v. Broady, 56 Neb. 648, 77 N.W. 80, 82, 71 Am. St. Rep. 691; Hayes v. Davis, 307 Ill. App. 440,30 N.E.2d 521; Kubina v. Nichols, 241 Wis. 644,6 N.W.2d 657-659. In the last-cited case one cotenant had paid the taxes on her share in the common property and procured a tax deed to the shares of the other cotenants. She then sold the property for $600 to Kubina, who *Page 744
built a garage on the lot at a cost of $6,000, which improvement enhanced the value of the property by the amount of such cost. The value of the lot, without the improvement, remained at $600. He mortgaged the property for $2,500. Everything he did with respect to the property was in the good-faith belief that he had an absolute title in fee simple. About three or four years later two of the cotenants procured a judgment setting aside the tax deed against them. One of them, Nichols, then bought out the other cotenants and brought this suit in partition. He had no knowledge of the making of the improvements, and they were made without his consent or authorization in any way. The court, following two of its decisions, Deery v. McClintock, 31 Wis. 195, and Scheiner v. Arnold, 142 Wis. 564, 126 N.W. 17, and the general rule stated in 40 Am. Jur., Partition, section 39, held that the undivided interest of Nichols in the property was charged with its proportionate share of the $6,000 enhancement in value which the improvement had added to the property. Nichols, a layman, who tried his case in the lower court and presented his appeal in the Wisconsin Supreme Court, was denied a writ of certiorari in the United States Supreme Court. (Nichols v. Kubina, 318 U.S. 784, 63 S. Ct. 852, 87 L. Ed. 1151.)
Other additional authorities and decisions dealing with the matter of compensation for improvements made by a cotenant, and sustaining the trial court's conclusion of law that the improving cotenant should be allowed from the proceeds of the partition sale such amount, in addition to his pro rata share in the property, as the improvements enhanced the value of the property at the time of the partition trial, are: 16 Am. Eng. Ency. of Law, Second Ed., Improvements, 111 et seq.; 14 Am. Jur., Cotenancy, section 49; annotation 122 A.L.R. 234-249; 40 Am. Jur., Partition, sections 43-51; 7 Am. Eng. Ency. of Law, Second Ed., Contribution and Exoneration, 358; 62 C.J., Tenancy in Common, section 122; 47 C.J., Partition, sections 497, 505, 507-509, 855; Wainscott v. McBroom, 203 Ky. 634, 262 S.W. 961, 962; Ratterman v. Apperson, 141 Ky. 821, 133 S.W. 1005, 1007, 1008; Cleveland v. Milner, 141 Tex. 120, *Page 745
170 S.W.2d 472, 476; Armor v. Frey, 253 Mo. 447, 161 S.W. 829, 838; Appeal of Kelsey, 113 Pa. 119, 57 Am. Rep. 444, 445; Howey v. Goings, 13 Ill. 95, 54 Am. Dec. 427; Louvalle v. Menard, 1 Gilman (Ill.) 39, 45, 41 Am. Dec. 161; Burks v. Vaughn, Ark., 19 S.W. 754, 755; Ford v. Knapp, 102 N.Y. 135, 6 N.E. 283, 55 Am. Rep. 782-786; Buck, Hefflebower Neer v. Martin, 21 S.C. 590, 53 Am. Rep. 702-706; Clarke v. Clarke, 349 Ill. 642, 183 N.E. 13, 16; Chambers v. Huntoon, 222 Ala. 482, 132 So. 713, 714; Sarbach v. Newell, 28 Kan. 642; id. 30 Kan. 102, 1 P. 30; Hermance v. Weisner, 228 Wis. 501, 279 N.W. 608, 610, 611, 117 A.L.R. 1437; Burton v. Williams, Tex. Civ. App., 195 S.W.2d 245, 247; Freeman on Cotenancy and Partition, Second Ed., sections 509, 510.
This court has quite uniformly adhered to the general principles relating to the subject matter as stated herein. It has repeatedly recognized the principle that one who, in good faith, has made improvements on land in which others have an interest, thereby increasing the value of the land, is entitled to be recompensed to the extent of that value in any partition of the land. Without any analysis of these cases, we call attention to them with such brief comment as may be necessary: Cooper v. Frederick, 4 (G. Greene) Iowa 403, 405, 406; Thorn v. Thorn,14 Iowa 49, 55, 56, 81 Am. Dec. 451; Forrest Milling Co. v. Cedar Falls Mill Co., 103 Iowa 619, 632, 72 N.W. 1076; Van Ormer v. Harley, 102 Iowa 150, 158-161, 71 N.W. 241; Conrad Ewinger v. Starr, 50 Iowa 470, 478, 479; Moy v. Moy, 111 Iowa 161, 162-164, 82 N.W. 481; Booth v. Booth, 114 Iowa 78-80, 86 N.W. 51 (The principle above noted was recognized but the evidence to establish the improvements was insufficient.); Plant v. Tate,114 Iowa 283, 285, 286, 86 N.W. 276 (Here, also, the principle was recognized but the evidence of improvements was lacking.); Parkhill v. Doggett, 142 Iowa 534, 536, 119 N.W. 689 (The principle was recognized, and the court also stated and held that, even though the improving tenant was a disseisor, and his acts amounted to an ouster, "notwithstanding this strict rule of law, a court of equity may consider all of the circumstances and somewhat modify the rule in *Page 746
the interests of justice, and this is what the trial court seems to have done in this case." As the opinion states, the issue was principally factual. The improving tenant was permitted to remove some inexpensive improvements, and the rental owing by him quite offset in value the remaining improvements.); Rippe v. Badger,125 Iowa 725, 729, 101 N.W. 642, 643, 106 Am. St. Rep. 336 (The plaintiff was not allowed to recover for improvements, because he claimed nothing therefor either by pleading or argument. By way of dictum, the court said: "* * * as we understand the record, he was a disseisor, and for that reason alone he is not entitled to contribution for the improvements."); Frye v. Gullion, 143 Iowa 719, 728, 121 N.W. 563, 566, 21 Ann. Cas. 285 (Any claim that may have been made for credit or compensation for improvements lacked sufficient evidence to sustain it. Any consideration given the matter was apparently very slight. The opinion states: "* * * there appears to have been no accounting or showing of the rents and profits received by him [claimant]. We can not assume that he put more into the land than he took out of it. Moreover, it is only in exceptional cases that a tenant in common can burden the title of his co-tenants by improvements erected or made on his own motion." The last sentence was random obiter unnecessary to a decision in the case. There is no decision that in a partition suit, in the adjustment of the equities, compensation cannot be allowed, under the principle contended for by appellee, for improvements made on the common property.); Shelangowski v. Schrack, 162 Iowa 176, 180, 181, 143 N.W. 1081, 1083 (Proof of any improvements made was questionable. Plaintiff was only a life tenant on part of the property, and as such could not charge the reversion with valuable improvements, and was required to make such repairs as were necessary to preserve the property. The opinion repeats the dictum in Frye v. Gullion, supra, but immediately concedes the principle contended for by appellee, by stating:
"In a proper case for partition, equity will often so distribute the property in kind as to give to the one making improvements that part of the land upon which the cotenant *Page 747
placed the improvements; but it will not make the claim forimprovements a charge upon the whole property.") (Italics supplied.)
The italicized statement is contrary to the prior decision of this court in Killmer v. Wuchner, 79 Iowa 722, 724-726, 45 N.W. 299, 300, 8 L.R.A. 289, 18 Am. St. Rep. 392, and the later decision in Nelson v. Pratt, 212 Iowa 441, 230 N.W. 324, 236 N.W. 386, and is contrary to authority and precedent generally, and has been repudiated by the two decisions last mentioned. In the Killmer case, supra, the facts and decision are in substance as follows: The suit was for partition. Plaintiff, prior to the suit, had sold the property by written contract to Beinke, whom he made a defendant. Plaintiff had made improvements on the land, and asked that they be allowed in any partition or sale of the land. Beinke alleged that he had made valuable improvements, and asked that any money awarded to plaintiff be paid into court so that an adjustment could be made by them. The other defendants, the two Wuchners, asked for partition, but alleged that their rights were not affected by the improvements, and that those made by Beinke were with knowledge of their rights and without their knowledge or consent. The court found that Beinke owned a life estate in the property and seventeen twenty-fifths of the fee, and that each of the two defendants-appellants owned four twenty-fifths of the fee, subject to the life estate. The father of the appellants died testate and devised the appellants' two-thirds of the land in fee, subject to an estate in the mother. By a decree of court the mother's estate was fixed as one-third in fee and a life estate in the other two-thirds. In 1862 plaintiff's grantor obtained from the stepfather of appellants, who was their guardian, a deed which purported to convey their interest in the land. The court said:
"It was insufficient as a conveyance, but the evidence satisfies us that it was received in good faith, and relied upon and treated as effectual to pass the title of appellants. In the year 1864, plaintiff's grantor acquired the interest devised to the mother, and in the year 1866 he executed to plaintiff a *Page 748
warranty deed for the entire tract of land. Valuable improvements were made upon it, and there is no doubt that plaintiff occupied and treated the premises as his own until the year 1884, when he sold them to Beinke without any knowledge of appellants' claims. When that sale was made an investigation of the title led to a discovery of the claims of appellants. * * * neither had ever resided in Iowa. They did not know of their interest in the land, nor the improvements thereon, until about October, 1884. Beinke first learned of the defect in his title nine months after he had entered into the agreement of purchase, and, as we understand the record, after a large part, if not all, of the improvements had been made. Certainly, all of much value were made before there was any adjudication of his title. It is true, appellee could have ascertained the interests of appellants before making the improvements, but the improvements were made in good faith, and equal in value the worth of the land without them. When made, appellees were rightfully in possession of the land, and only did that which was proper to develop and make it productive. It was taken in a wild, uncultivated state, and by means of the improvements in question was fitted for residence, and made capable of yielding valuable profits. It cannot be partitioned, but must be sold, and the proceeds divided. Appellants have not been injured by the making of the improvements, and they have no just claim to any portion of their value. They will receive the same amount in value under the decree of the district court that they would have received had the improvements not been made, and with that they should be satisfied. Our conclusion is in harmony with the principles of equity, and is not without support of authorities. * * * Appellants ask a partition in this case, and for general equitable relief, and cannot be heard to complain because their prayer is granted. We are of the opinion that the finding of the district court as to the shares of appellants is sustained by the evidence, and is fair to them. The decree * * * is AFFIRMED."
In Bergman v. Kammlade, 109 Iowa 305, 80 N.W. 418, the rentals wrongfully withheld by the improving tenant exceeded *Page 749
in value what improvements he made. The same was true in Sagen
Nelson v. Gudmanson, 164 Iowa 440, 145 N.W. 954. In Berry v. Donald, 168 Iowa 744, 748, 749, 150 N.W. 1048, the cotenants, who had put valuable improvements on the common property, were allowed the full value and cost thereof in the partition suit. In Stevens v. Pels, 191 Iowa 176, 183, 194, 175 N.W. 303, a suit to award a widow her share of the land and to account for rentals was held by the court to be one in which the equities between the parties should be adjusted. A credit was awarded a grandson, for improvements he had put on the land, and charged against the common property, and not upon the share of the widow alone.
In Nelson v. Pratt, supra, 212 Iowa 441, 443-445, 230 N.W. 324, 325, a suit in partition in which the defendant cotenant asked that the value of improvements which he had placed on the land be awarded to him out of the proceeds of the sale, it was so decreed. His sister, the plaintiff, who owned the other half of the land as a tenant in common, appealed. Plaintiff and defendant were reversioners, and their mother had a life estate. Defendant, under an arrangement with his mother, who lived in North Dakota, went into the occupancy of the farm, and, because of the bad condition of the improvements, at his own expense, constructed improvements at a total cost of $6,000. These included a well-built house costing $4,600, and a barn, granary, corncrib, and complete fencing. It was not disputed that these improvements were worth in excess of $5,000 at the time of the trial and that they would add that much or more to the value of the farm. The decree awarded defendant $5,000 out of the proceeds of the sale.
In affirming, the court, through Evans, J., said:
"The basic proposition upon which appellant predicates her argument is that one co-tenant of land may not charge the other with contribution for the cost of improvements built upon his own motion without notice to the other co-tenant and without her knowledge or consent. The fact proposition contended for in argument is that the plaintiff was never notified by defendant of his proposed improvements and that she never, *Page 750
either before or after the making, consented in any wise thereto. This line of argument may be safely conceded, yet it quite ignores the decisive equities in the case. It was competent for Pratt to rent the land from the life tenant. It was also competent for him either as a present or prospective co-tenant of the remainder, and as a present tenant of his mother, to build the improvements upon the common property at his own risk. As between him and his mother he would have the right to remove the improvements as belonging to him. Nor would such right be any less as between him and his co-tenant provided that the building and the removal were not injurious to her or to the land. If it appear in a partition case that one of the co-tenants has in good faith built beneficial improvements upon the common property, that fact will receive the consideration of the court as an existing equity. A protection thereto will be afforded in the decree as far as it can be done without prejudice to the other co-tenant. This is a general principle of equity which has been frequently applied in this court as will presently appear by later citations herein. One recognized method of protection is to include the improvements in that portion of the common estate awarded by decree to such co-tenant. If it appears, impracticable to divide the property in kind, the equity of such co-tenant may be protected by alternative remedy. His legal right to remove the improvements in so far as it can be done without substantial injury to the premises, will be recognized. The exercise of this remedy would necessarily involve loss and waste to the owner of the improvement without working any corresponding benefit or advantage to the other co-tenant. The usual equitable alternative in such a case is to order the property sold as a whole including the existing improvements and to award to the owner of the improvements out of the sale price, their fair contribution thereto. In this case the court found the present worth of the improvements to be considerably in excess of $5000 and found further that such improvements would add not less than $5000 to the sale price of the property. Upon such finding it was ordered in the decree that $5000 of the sale price should first be paid to Pratt for his improvements. * * * *Page 751
"In view of the foregoing, it is needless that we decide the issue of fact between the parties, which is much stressed in argument, as to whether Mrs. Nelson had notice beforehand, or consented afterwards, of or to, the making of such proposed improvements. If they added $5000 to the selling value of the farm, she suffered no prejudice from their building and none from their inclusion in the sale. There is no dispute in the evidence as to their present value."
In a supplemental opinion in Nelson v. Pratt, supra, on rehearing, the court adhered in full to the original opinion, and answered the contention of the petitioner that the opinion in Booth v. Booth, supra, 114 Iowa 78, 86 N.W. 51, had been ignored. The court clearly distinguished that case and pointed out that there was no conflict in the two decisions. The court said, at page 447 of 212 Iowa, page 386 of 236 N.W.:
"Giving to the opinion in the Booth case, the most favorable construction contended for by appellant, its only effect would be to require us to discuss the disputed evidence in the case at bar. In the original opinion we found it unnecessary to determine the dispute of fact as between the parties herein."
The court then reviewed the testimony in the Booth case and found that the plaintiff had full knowledge of the construction of the improvements by the defendant, and never raised any question until many months after her mother's death. The court further found that defendant made the improvements in reliance upon his interest as remainderman, and that the plaintiff so understood. The mother had disclaimed all interest in the improvements and they were deemed to be the absolute property of the defendant.
The supplemental opinion was in no way a recession from the original opinion. The court expressly stated that it adhered thereto in full. What the court said about the disputed fact as to whether the plaintiff had knowledge of or had consented to the improvements was simply in answer to the petitioner's contention and an assertion that she was in error as to the facts as well as to the law.
We have reviewed our past decisions bearing upon this *Page 752
appeal, because appellant has discussed many of them, and has contended at length and strenuously that the decision of the trial court is not sustained by, but is contrary to, those decisions. She has argued that she knew nothing about the later improvements on the premises, and that since she never authorized them she is entitled to one half their value. It was in support of that position that it was insisted by her that the court, in the supplemental opinion in Nelson v. Pratt, had receded from its holding in the main opinion that it was not material to the defendants' recovery whether the plaintiff knew and consented to or had not known and had not consented to the making of the improvements. The decision of the court in the original opinion was right and was not departed from in the supplemental opinion. Any other decision would have been contrary to the holding in Killmer v. Wuchner, supra, 79 Iowa 722, 45 N.W. 299, 8 L.R.A. 289, 18 Am. St. Rep. 392, and we reaffirm the decision.
Appellant also argues that the court, in Van Veen v. Van Veen,213 Iowa 323, 236 N.W. 1, 238 N.W. 718, in its holding that the widow was not entitled to any reimbursement for the tiling of the land, was contrary to the decision of the trial court in the case before us, and was a departure from the holding in Nelson v. Pratt and Killmer v. Wuchner, both supra, that reimbursement in partition suits for improvements was allowable. We do not agree with this contention of appellant. The matter was not discussed much in the opinion. The trial court had allowed the widow nothing on her claim for tiling or for repairs. This court modified the trial court's decree by allowing the widow for the repairs. Further along in the opinion is this isolated sentence, on page 337 of 213 Iowa, page 7 of 236 N.W.: "We feel that the court was right in not allowing the widow anything on her claim for the tiling of the land." Nothing is said about the testimony, or the lack of it, concerning the tiling. No reason is given why nothing was allowed. The facts probably were that there was no proof of the amount spent for tiling, and no testimony respecting any increase in the value of the farm because of the tiling. The purpose of tiling is to benefit the land and make it more *Page 753
productive. It ordinarily does so and thereby increases the value of the land. If the circumstances are such that a cotenant is entitled to an allowance in a partition suit for improvements made by him, tiling should not be excluded therefrom. Tiling should be included, just as a house, barn, fencing, or any other proper improvement, in determining the enhanced value of the property. In Clarke v. Clarke, supra, 349 Ill. 642, 650, 183 N.E. 13, 16, the court allowed compensation for buildings, fencing, and "456 rods of tile." We will assume that the reason the claim for tiling in the Van Veen case was not allowed was because of the facts and not because of any doubt of the law. We hold that the Van Veen decision in no way modifies or overrules in any way the decisions in Killmer v. Wuchner or Nelson v. Pratt, both supra. For an instructive discussion of the authorities in Iowa and elsewhere on contribution for improvements in cotenancy, see 29 Iowa L. Rev. 577 et seq.
[5] II. Appellant argues that appellee evicted and ousted her from the home, and that he was therefore a disseisor, and under the decisions in Austin v. Barrett, 44 Iowa 488, Dodge v. Davis,85 Iowa 77, 52 N.W. 2, Todd v. Stewart, 199 Iowa 821, 827, 202 N.W. 844, and like cases, he would not be entitled to recover for improvements. This contention is without merit. The evidence clearly shows that she moved out of her home with her household goods voluntarily, as she knew she would when she concluded not to contest the divorce. The appellee remained there with her assent. In Barrett v. Love, 48 Iowa 103, 111, it is said that disseisin occurs only when an entry is made upon lands, and possession taken unlawfully and without assent. The appellee was lawfully in the home before the divorce and his possession thereafter was lawful. He was not a disseisor.
III. Although the trial court found that the improvements put on the premises by appellee enhanced their value $8,050, since the appellee in his pleadings claimed credit for an enhancement of but $8,000, the court found that but one half thereof, or $4,000, could be allowed as a charge for the improvements against the interest or share of the appellant in the property. The court so decreed. This leaves a balance of $250 in the proceeds of the sale. The evidence without dispute establishes *Page 754
that the unimproved lot was at all times worth $150. Of this sum each party is entitled to one half, or $75. The evidence was that the rental value of the unimproved lot was about $8 an acre a year. There was evidence that the rental value of the property as improved was $40 a month, but appellant would be entitled to rent only on the lot as unimproved.
Appellee occupied the premises after the divorce and prior to the entry of decree herein, a little over twenty-four months. Appellant would be entitled to one half the monthly rental, or $4 a month, or approximately $100.
Appellant's motion to strike the reply brief and argument of cross-appellant is denied.
All matters presented have been considered and it is our judgment that the decree of the district court should be, and it is, affirmed on each appeal. — Affirmed.
OLIVER, C.J., and SMITH, MANTZ, HALE, GARFIELD, MULRONEY, and HAYS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431220/ | [1] The victim of the alleged murder was Claude Meade, who was shot by the defendant. The shooting occurred in a barn upon the fair grounds of Winneshiek county. The defendant claims that the shooting was done in defense of his grandson, whom Meade was pursuing with a pitchfork, and whom he drove out of the barn at the points of the pitchfork. Meade was engaged in the business of training trotting horses for others, and stabled his horses in the barn in question. He was fifty-two years of age. The defendant was eighty-five years of age. He used a .25 caliber pistol, and shot the deceased in the back while the deceased was pursuing the grandson with a pitchfork as the defendant claims. Just before the shooting and the pursuit of the grandson by Meade, the defendant and Meade had engaged in a quarrel of words in which they applied to each other very abusive epithets. The grandson had no part in the quarrel, but came into the barn at the time thereof. This is a sufficient indication of the general character of the events that preceded the tragedy. The record is voluminous, but we shall have occasion to deal only with one feature of it. Because of certain concession made by the state, we shall have no occasion to consider more than the subject-matter of such concession. The concession is that the court inadvertently failed to follow the rule laid down by the majority of this court in State v. Anderson, 209 Iowa 510, 228 N.W. 353. The state takes the position, however, that the judgment below should be affirmed notwithstanding. Its contention is that the majority rule adopted in the Anderson case was, and is, erroneous, and that it should now be overruled. By reference to the Anderson case it will be noted that the majority opinion therein held it essential to an adequate instruction on the subject of reasonable doubt that the jury be advised as to the effect of a "lack of evidence". The cited case seems to be regarded by counsel on both sides as the controlling one on the subject, although it is by no means the only one. In the Anderson case the trial court instructed as follows:
"All of the matters left for your determination are to be *Page 891
determined by you alone from the evidence before you and after a full and careful consideration of the same."
In the Anderson case the majority opinion said:
"All matters left for determination necessarily included the question of reasonable doubt. Appellant's contention is that this instruction did not include, but excluded, a reasonable doubt which might arise from lack or want of evidence. It is apparent that the appellant is right in his contention, for the court, in the instruction, in terse language, states that the question of reasonable doubt, as well as all other matters for their determination, are `to be determined by you alone from the evidence before you'. We have repeatedly refused to approve an instruction on reasonable doubt which excludes a reasonable doubt arising from the lack or want of evidence."
Some of us were dissatisfied with the conclusion of the majority in that case and noted a dissent thereto. It was accordingly decided by a divided court by a majority of five to four. The way had been previously paved to some extent for this holding in State v. Smith, 192 Iowa 218, 180 N.W. 4; State v. Smith, 194 Iowa 639, 190 N.W. 27; State v. Tonn, 195 Iowa 94, 191 N.W. 530; State v. Flory, 198 Iowa 75, 199 N.W. 303; State v. Tennant, 204 Iowa 130, 214 N.W. 708; and State v. Patrick,201 Iowa 368, 207 N.W. 393. Since the Anderson decision, the doctrine there announced has been followed in State v. Matthes, 210 Iowa 178, 230 N.W. 522; State v. Love, 210 Iowa 741, 231 N.W. 392; and State v. Madison, 215 Iowa 182, 244 N.W. 868.
[2] What the state proposes at this point is to save its case by overruling the cited cases. The idea advanced is that only a majority voted for the opinion, and that it therefore is more readily assailable than a unanimous opinion would be. The idea is untenable. A five to four decision of an appellate court has the same binding force and effect as if it had been adopted by a unanimous membership. If a majority of the court may not render a binding decision, then nothing less than unanimity could do so. It is highly essential to the public weal that judgment be stable. It is just as essential that judicial precedents be stable. One cannot obtain without the other. The fact that the decision in the Anderson case was reached by a less number of judges than the whole does not of *Page 892
itself furnish any reason whatever for repudiating it. Nor does the fact that the personnel of the court changes, and has
changed, have any influence whatever upon the proper course to be pursued.
It is urged in substance that the rule announced in the Anderson case is unduly lenient to the guilty defendant, whose punishment is long overdue. The Constitution is professedly comprehensive and liberal in its attitude towards a defendant accused of crime. In the eyes of the Constitution, he is innocent and continues to be so until his guilt be proved. The objective of the Constitution is not to favor the guilty but to protect the innocent against the hazard of false punishment. In the pursuit of this objective, it takes large chances of favor to the guilty rather than to imperil the innocent. Better that the guilty escape than that innocence be ravished. Until guilt be proved, the Constitution awards asylum to the innocent and guilty alike under the same roof. To each of them legal protection is guaranteed. If a guilty defendant is not entitled to the protection guaranteed by the Constitution, then no defendant is. Nor can the legal guilt of a defendant ever be known until his trial has been had under the protection of the Constitution. This defendant is now entitled to the protection of the rule laid down in the Anderson case. The concession of error by the state is therefore well taken; but without reservation.
The judgment below is accordingly reversed, and the cause remanded. — Reversed and remanded.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431224/ | I. The lessor now urges that the court below neither as a court of probate nor of chancery had jurisdiction to 1. EXECUTORS entertain the application, in that "authority to AND carry on the contract was not asked as an ADMINIS- incident of the administration of the estate, to TRATORS: close up the obligations connected with both the management gravel business and the administration." He says of estate: that "Grooms himself had not left any will application authorizing his business to be carried on after to continue his death," and that the estate would have to be business: kept open for 19 years. It is said that the jurisdic- application was addressed to the discretion of tion. the court, and that such discretion was properly exercised.
The lessor does not claim the status of a creditor. He volunteered in the proceedings for administration, setting up his alleged rights under the contract. He asked "an early hearing upon the application and these objections, that the rights of the parties may be speedily determined, as the season for gravel work is now opening up," etc. His voluntary tender of an issue was accepted. At the trial it was stipulated that:
"In order that no question as to the jurisdiction of the probate proceedings may be involved, it is now stipulated and agreed that this cause shall stand, and it is now tried and submitted to final hearing at this time as in chancery."
The parties voluntarily submitted to the judgment of the court their respective rights under the contract. The court found: *Page 748
"All parties in open court agree that the hearing now had is upon the merits, and that the decision thereupon shall be final in this court. * * * That said lease constituted a personal contract between the parties, and terminated with the death of said George W. Grooms. By reason whereof it is now ordered" that the objections of the lessor be sustained, and application denied.
The district court is a court of general jurisdiction. It had jurisdiction of the subject-matter and of the persons of the parties. The parties in interest, according to the record, were the administratrix and the distributees. The claimant, whose rights to intervene are not above question, having procured a denial of the application, and seeking to retain the benefit of it, has no standing to deny the jurisdiction, or to assert that the order was a discretionary one in probate.
II. The lessor's principal insistence is that the lessee's rights under the lease were personal to him; that the contract was personal, not assignable, and did not survive to the administratrix or distributees. The lease is of 2. LANDLORD 35 or 40 acres, lying astride the Des Moines AND TENANT: River, and subject to overflow. It leases to leases: "Grooms the surface use, and the sand and gravel assignabi- rights in and to, and riparian and other rights lity: when incident to the following" premises, for five lease years from March 1, 1925. It provides that, survives "should Grooms make substantial investment in death of equipment and machinery installed on the lessee. property, he" shall, upon notice, have the right to extend the lease for fifteen years, upon the same terms.
"Purposes. Grooms covenants to vigorously utilize said land by extraction of the available sand and gravel resources and diligently farming the remainder of the available land described; and failing in which for a period of ninety days during the active season for such pursuits, this lease at the option of said Hardsocg may be declared terminated; the duty devolving on said Grooms hereunder to clear said land of brush," etc.
Grooms was required to pay taxes.
"The said Hardsocg leases said land to said Grooms for said purposes and on said condition, and grants unto him the sole and exclusive right during the term to extract from such land, adjacent river banks and bed, remove and sell the available *Page 749
sand and gravel, on condition that Grooms pay to Hardsocg Royalty of ten (10c) per yard, or seven cents (7c) per ton for all sand or gravel so extracted or removed from said described property, including the adjacent river bed, during the term."
The payments were to be "accompanied by itemized statement verified by Grooms furnished to Hardsocg showing the basis on which such earnings are calculated. Hardsocg, during the term shall have the right at any time to examine the records of Grooms as to accuracy of the returns. Rights of Grooms are exclusive. The rights herein granted unto said Grooms are exclusive in him."
Grooms had the right to make roads, to install "such machinery and equipment as he may desire for the purpose of operation; and shall have the right to alter or remove the same at will," subject to landlord's lien.
"Rent Contingently Modified by Royalties. Grooms covenants to fully utilize all available part of the land so rented by diligently prosecuting in season both the farming operations and the sand and gravel business herein provided for. If the royalties in any one year do not amount to three hundred dollars, then the landlord shall have a lien upon that part of the crops raised on the west side of the river, the amount of the lien being for one half the crops and proceeds thereof, raised on the land west of the river, so far as such amount shall be necessary to make good such deficiency in the royalties. And if the royalties paid in any one year aggregate five hundred dollars, then all the crops and proceeds * * * shall belong to Grooms free from any claim by Hardsocg."
The lessor reserved all minerals, and the right to sell building lots and to erect structures not interfering with the roads or buildings of Grooms. "Grooms has the right at the end of the term to remove improvements" and equipment. It was agreed that a cement-block house on the property was included in the lease, but to be maintained at Grooms' expense.
The circumstances attending the making of the lease are very meagerly shown. Hardsocg testified that he had lived in Wapello County 40 years; that Grooms worked for him three or four years, when Hardsocg first came to Ottumwa, and worked for him again three years ago; that Grooms' duties were "to *Page 750
keep accounts and fill orders for me." The lease is dated February 25, 1925. Grooms died February 25, 1926. Hardsocg testified that the cement house "was occupied last year by a man — I don't know his name — who did some hauling of sand, part of the time. He done some stripping on the place, with the understanding that he could live in the house. * * * Grooms did not furnish any tools or equipment on the land. He didn't do anything on the place except to wait on customers who were wanting to buy sand and gravel." He further testified that he "was somewhat acquainted with Mr. Grooms' financial condition at the time he made the lease, and I knew that he had no means with which to buy machinery. I never complained to Mr. Grooms because he didn't buy any machinery." He said he knew that Grooms lived in a rented house, — didn't know whether he owned a team, and did not inquire, before he made the lease; that Grooms paid him $300 royalty, at different times; that Grooms had to strip about seven feet to get the sand; that he got some out of the river bed; that he didn't know of anyone's going there for sand last year that couldn't get it. There is evidence that 15 acres was in cultivation under sublease from Grooms; that Grooms paid out $477.58 for repairs, etc., besides royalty, $219.59 (Hardsocg says $300); that Grooms derived from all sources, unless from crop, $1,162.54.
Where a contract is of such nature that for its proper performance, as contemplated thereby, confidence and trust are reposed in the performer personally, or where the attainment of its object requires his personal services or skill, it is not assignable, and does not survive; but where results are contracted for, and their attainment does not depend upon personality of the doer, where it does not appear that personality is an essential consideration, and the object may be attained by one person as well as another, the contract is assignable, and survives. Kinser v. McMurray, 190 Iowa 1329; Bullv. Weisbrod, 185 Iowa 318; Galey v. Mellon, 172 Pa. St. 443 (33 A. 560); Devlin v. Mayor, 63 N.Y. 8; New York Bank Note Co. v.Hamilton B.N.E. P. Co., 180 N.Y. 280 (73 N.E. 48); NorthwesternCooperage Lbr. Co. v. Byers, 133 Mich. 534 (95 N.W. 529);Atlantic N.C.R. Co. v. Atlantic N.C. Co., 147 N.C. 368
(61 S.E. 185, 125 Am. St. 550, 23 L.R.A. [N.S.] 223, 15 Ann. Cas. 363); Hunt v. Dederick, 105 Ind. 555 *Page 751
(5 N.E. 710); 5 Corpus Juris 878 et seq. The right of everyone to choose with whom he will contract does not determine the question of assignability. That right exists in the contracts that are assignable, as well as in those that are not. The lessor contends that a lease upon shares is personal, and not assignable. InRandall v. Chubb, 46 Mich. 311 (9 N.W. 429), a lease upon shares gave to the lessee the use of farm implements, and required him to care for and repair them at his own expense. In Lewis v.Sheldon, 103 Mich. 102 (61 N.W. 269), it does not appear that the use of personal property was included. In these cases the leases were held to be personal, and non-assignable. In the latter case it was said further that the doctrine had become a rule of property in Michigan. In Meyer v. Livesley, 45 Or. 487
(78 P. 670, 106 Am. St. 667), a lease of a hop yard, including the use of personal property, was held to have been seemingly made in reliance upon the ability, character, and skill of the lessee, and was not assignable. This was reaffirmed in Myer v. Roberts,50 Or. 81 (89 P. 1051). See Bates v. Georgia Fertilizer Co.,144 Tenn. 32 (229 S.W. 153). In the contract before us the lessor made no provision forbidding the assignment. Here, the promise and the obligation were "to vigorously utilize said land by the extraction of the available sand and gravel resources and diligently farming the remainder." The lessor had no interest in the crop, further than a lien for the minimum royalty. The lessor does not claim, and it does not appear, that the lessee was experienced, or had any special knowledge or skill in utilizing sand banks or in farming. The only duties Grooms had in the course of his former employment by Hardsocg, so far as Hardsocg's testimony goes, were to keep accounts and fill orders. His evidence rather excludes the probability of reliance on the personality of Grooms. The lessor could not, under his testimony, have relied upon the financial responsibility of Grooms, or on any equipment or special qualifications otherwise that Grooms possessed. That Hardsocg did not consider the lease personal seems to be clear from the undisputed evidence that Hardsocg, on the day of Grooms' funeral, "wanted to know what the folks were going to do with the lease," and was told, evidently without any objection, that the son wanted to hold it and work it out. Other witnesses testified, without contradiction, that Hardsocg told one of the sons *Page 752
"to hold onto that lease over there, because there is more in it than your father ever thought there was, and if I had the money, I would do it myself." This son testifies that he and Hardsocg "talked about those prospective parties that were to see him this spring, and he told me that, if they came to him, he would send them to me. It was understood that I was going ahead and continue to push this thing."
The claimant relies in argument largely on the grant to Grooms in the lease of "the sole and exclusive right during the term to extract," etc.; and again, "The rights herein granted unto said Grooms are exclusive in him." This last is under the heading, "Rights of Grooms are Exclusive." The right was to extract from the land and the river bed, and to remove and sell, the available sand and gravel. By the lease, that right, or those rights, were exclusive in Grooms: i.e., no one else would have or would be given the right to enter upon the land or river bed, to take sand. The purposes were to vigorously utilize the land for sand and gravel and for farming. The duties of Grooms were to clear away the brush and pay taxes and royalty. Such purposes and duties were in no wise dependent upon personality. They could obviously be performed better by one who had financial means and who had credit and equipment, which Grooms evidently did not have.
The question of the assignability of a lease for share rent is not before us for adjudication. The contention by way of argument that it is not assignable is on too insecure foundation to be of value. In Kinser v. McMurray, 190 Iowa 1329, 1337, it is said, quoting from 5 Corpus Juris 850:
"`Generally, the test applied in determining the assignability of a chose in action is whether or not it would survive and pass to the personal representative of a decedent.'"
That case involved a sale of ewes, under a contract by which the purchaser was to raise a "crop of lambs." The sellers were to purchase the lambs and the wool crop at stipulated prices. This contract came much nearer involving the personality of the performer and skill and experience on his part than does the contract now under review. This court said, in that case:
"May it not be said that, under this contract, defendants were seeking results; that their sheep should be cared for, lambs *Page 753
raised, wool sheared and delivered to them at a certain time and place, and for a certain price? * * * Again, suppose plaintiff had died after the making of the contract, — say, for instance, after the sheep had been sheared and the wool was ready for delivery, — defendants would, under their contract, be entitled to recover the wool or its value from plaintiff's estate. Property was involved, rather than the mere personal services alone, * * *"
The results contracted for here were the vigorous utilization of the land for sand and gravel and diligent farming. Grooms evidently was not even a farmer. The farm was sublet. Hardsocg knew it, and apparently acquiesced.
It would be startling to the great number of farm tenants in Iowa farming on shares, and to their landlords, to be told that, in the event of the tenant's death, — say, after the spring plowing, or after corn planting, or after the corn is laid by (if none of the crops are ripe), — the administrator would be under no duty to complete the performance of the lease, and that he or the distributees would have no right to the crop. Under a contract for the leasing of land on shares, the legal title to the entire crop is in the tenant. The share reserved to the landlord is rent. He has no such interest in it as may be in an action against him attached before it is set off to him. His interest up to the time of setting off his share is that of a lien holder, though he may mortgage it. Rodgers v. Oliver,200 Iowa 869, 872; Clark v. Strohbeen, 190 Iowa 989, 995; Riddle v.Dow, 98 Iowa 7; Howard County v. Kyte, 69 Iowa 307. We think that the acceptance of the agreement of the tenant to pay a royalty cannot be assumed to have been made in reliance on the personality of the tenant to any greater degree than the acceptance of an agreement to pay cash rent for a farm, which a supine tenant might not be able to pay. The personality of the tenant would enter as much into his agreement to keep the buildings and fences in proper repair and to keep the land in a proper state of cultivation, free from weeds.
It is said in 40 Corpus Juris 1042:
"Where the personal skill of the miner lessee is contracted for, the lease is not assignable. But where the lease gives the right to mine and carry away ore for a certain time, such lease is not of a fiduciary character or in the nature of a personal *Page 754
confidence, and ordinarily may be assigned or sublet, unless it contains restriction * * *"
To hold that the element of gauging the rent or compensation to be paid under a contract by the amount of earnings makes it non-assignable and non-survivable would have a far-reaching effect. We are of the opinion that the contract before us is not of a personal nature so as to be non-assignable or non-survivable merely because the amount to be paid upon it by the performer is measured by the amount of his production. The parties in making the contract under consideration had in view the possibility that the lessee would make substantial investments in equipment and machinery, and that such should entitle him to a total of a 20-year term. A minimum royalty enforcible against the crops was provided for. The parties in making the contract had in mind and provided remedies to the lessor. The right of cancellation for failure to vigorously utilize the land was reserved. The lessee was given the right to build roads. The evidence is that the brush must be cut off and stripping done to the depth of about seven feet. There is evidence that such work was done by deceased to the value of $600 to $800. The evidence suggests also the feasibility of the installation of a drag line and equipment at a cost of about $2,000, and the prospect of a better market on account of rural paving projects. Plaintiff does not contend that such work and installations involve the personality of the lessee. Suppose that the lessee had cleared and stripped one or two acres and installed a drag line. Suppose he was then taken sick or died. Would it be just or reasonable to say that the lessor's right to compensation on a percentage basis, and to have the lessee keep an account, make the contract personal, so that neither he nor the administrator, creditors, nor heirs have anything to sell but secondhand equipment? The specified reservation of the remedy by terminating the contract for a specified breach, the long term, and substantial investments in view, as well as the declarations of the lessor, the absence of any necessity for, and apparently of the existence of, personal qualifications in the lessee, the character of the work to be done, which might be performed by quite ordinary labor, preclude us from holding that the lease was of such a personal contract as to terminate by assignment or on the death of the lessee. *Page 755
The parties had in mind, and specifically provided for, the event on the happening of which the lease might be terminated. That event had relation solely to results, — vigorously utilizing the land. It mattered not to the lessor who produced the results. If not produced, whether the failure was that of the lessee or his assignee or administrator, the lessor had the right to terminate. If he had desired to reserve the right to terminate because of the death of the lessor, or for other reason, he could have so provided in the contract. Since he did not do so, it is not for the court to interpolate into the contract, by construction, such a prohibitory provision.
III. Notice of cancellation given by Hardsocg to the widow and distributees recited, as other reasons therefor, Grooms' "not having made investment in equipment contemplated by the lease, and he not having vigorously extracted the 3. LANDLORD available sand and gravel resources as required AND TENANT: in the terms of said lease." The lessee was leases: under no contract to make any certain investment forfeiture: in equipment. The lease did not provide, as a non-contract ground of forfeiture, omission to make such grounds. investment. The right to terminate was by the lease given to the lessor for failure to vigorously utilize the land by extraction of the available sand and gravel resources and to diligently farm the remainder. The right to terminate was conditioned on such failure "for a period of 90 days during the active season for such pursuits." The lessee died February 25, 1926. The notice of cancellation is dated March 11, 1926. The term "active season for such pursuits" must have reference to the milder months of the year when such operations are usually carried on. Hardsocg testifies that:
"After Grooms signed the contract, he did not go ahead on the land and do any work except some stripping * * * The customers would drive in, and themselves load the wagon. Grooms had no machinery * * * he had no finances, and did not prosecute the work vigorously. I was on the land, from time to time, and saw how things were going on. * * * My complaint was that he didn't get the machinery in there."
The evidence, including that previously noted, shows that Hardsocg was fully acquainted with Grooms' financial condition; he knew what could be expected, and knew what Grooms *Page 756
was doing. He evidently did not expect Grooms to do more than he was doing, and after Grooms' death, treated the contract as being in full-force. It is argued that but $219.59 was paid on the minimum royalty of $300. $219.59 is the amount paid, according to the examination of his books made by decedent's children. Claimant testifies that Grooms "paid me just $300 at different times. * * * He paid me $300 royalty for the sand taken from the land." If the minimum had not been paid, the remedy provided was a lien on the crops. Hardsocg's conduct was utterly inconsistent with the existence of any ground of complaint of the sufficiency of the performance by Grooms. There was no refusal to perform the contract. No breach justifying cancellation appears. 13 Corpus Juris 657. — Reversed.
FAVILLE, ALBERT, KINDIG, and WAGNER, JJ., concur.
EVANS, C.J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431225/ | Levee District No. 11 was established in 1909. The district embraces about 4,000 acres of land, and the levee as constructed is between six and seven miles in length. In 1912, the levee broke in three places. It again broke in the year 1915 and in 1916. In June, 1918, the levee broke again. Various meetings were held in 1918 and thereafter, by the board of supervisors and also by the landowners within the levee district. A committee was appointed by the landowners to cooperate with the board of supervisors in determining the best method to pursue to make the levee effective and protect the lands of the district from overflow and flood. A sand pump was purchased and used, but the work did not prove satisfactory; and eventually the board of supervisors advertised for bids for the work to be done. The bids received were not satisfactory to the board and the landowners, and three different advertisements were made, and a contract was finally let to the Wapello Construction Company for doing the work. The construction company proceeded under this contract for approximately two years, and moved 89,980 cubic yards in the work. In May, 1921, the board of supervisors passed a resolution relative to the issuance of bonds to pay for the work done under the contract with the construction company. Notices of the proposed assessment for the work were given, as provided by law; objections were filed to the proposed assessment; a hearing was had thereon; and an appeal from the order of the board of supervisors was taken to the district court, where the appeals were eventually dismissed. Thereafter this suit was commenced, to enjoin the collection of the assessments and the issuance of bonds.
It is the contention of appellants that the contract with the Wapello Construction Company was without authority of law, and therefore void, and that the board of supervisors should be enjoined from levying assessments on the lands of appellants to pay for the work done under said contract.
Appellants' contention that the contract is void, and that their lands are not subject to assessment to pay for the work *Page 239
done under said contract, is based primarily upon two propositions: First, that the work undertaken under the contract was of the character that required notice to the landowners within the drainage district, and that no notice was given; and secondly, that there was fraud in the measurements and computations of yardage under said contract, and that, in any event, appellants should not be subjected to assessment to pay the amount claimed thereunder.
I. The levee in question was constructed about 1909. It was approximately ten years thereafter when the proceedings that are complained of were instituted. The evidence 1. DRAINS: shows that the levee broke several times, and repairs: that it had settled and the walls had washed, scope of and that in its condition in 1918 it was former inadequate to effectuate its purpose of statute. preventing overflow.
The levee district was established under Chapter 68, Acts of the Thirtieth General Assembly, which, with certain amendments, appears as Section 1989-al et seq., Code Supplement, 1913. Appellants contend that the proceedings under which the contract involved in this case was let, were had under Section 1989-a11, Code Supplement, 1913.
Chapter 68, Acts of the Thirtieth General Assembly, was repealed and re-enacted by Section 10, Chapter 118, Acts of the Thirty-third General Assembly (1909), and said Section 10 was amended by Section 4, Chapter 87, Acts of the Thirty-fourth General Assembly (1911).
We have had said Section 1989-a11 before us a number of times, and have held that said section refers to changes sought to be effected in dimensions and location of a levee or a drainage ditch, after the establishment of the district and before the completion of the improvement therein, and that it does not conflict with nor supersede Section 1989-a21, Code Supplement, 1913, which relates to repairs upon a completed improvement. The matter is fully discussed and determined in Breiholz v. Board ofSupervisors, 186 Iowa 1147. See, also, Nervig v. Joint Boards ofSupervisors, 193 Iowa 909; Shaw v. Board of Supervisors, 195 Iowa 545; Walker v. Joint Drain. Dist., 197 Iowa 351.
If the work in the instant case was of the kind and character contemplated by Section 1989-a11, then notice was required *Page 240
before the lands within the district could be assessed for the improvement. We are clearly of the opinion, however, that the work in question cannot be said to have been work undertaken or authorized by Section 1989-a11. This work was not undertaken before the completion of the improvement. The improvement had been constructed and maintained for something like ten years before the work in question was undertaken. The work done did not contemplate the taking of any new lands, nor did it change the location of the improvement in any way.
It is contended that the work in question was repair work, 2. DRAINS: within the meaning and contemplation of Section repairs: 1989-a21; and also that, in any event, the work assessments was of the character provided for by Sections 1 without and 2, Chapter 302, Acts of the Thirty-seventh notice. General Assembly, which are as follows:
"Section 1. In any levee or drainage district which maintains a levee, the board or boards of supervisors shall have the right and power to keep up and maintain any such levees, ditches or drains, established under Chapter 2, Title 10, of the Code and amendments thereto, or in case of washout or other injury to enlarge or strengthen or increase the height of the same as may in their judgment be required, provided, however, that said work shall only be done or changes made upon the recommendation of a competent engineer appointed by said board, and said board or boards of supervisors are empowered to levy the expense thereof upon the real estate within said drainage or levee district.
"Sec. 2. If after the ordering of said repairs or improvements and before the completion thereof, it shall become apparent that the same should be enlarged, strengthened or otherwise changed or alteration in the location should be made for the better service thereof, said board or boards may by resolution authorize such change or changes in said improvement as the engineer may recommend, provided that when any changes are made, all persons whose lands shall be taken shall have been given notice as at the original establishment of said district and have the right to be heard as to damages and appeal as in said act or acts provided at the original establishment."
Appellants contend that, whether the work was done under *Page 241
Section 1989-a21 or under said Sections 1 and 2, Chapter 302, Acts of the Thirty-seventh General Assembly, they were entitled to notice before their lands could be subject to assessment. This contention is based upon a clause in Section 1989-a11, as follows:
"Provided that, whenever any change or changes are made, either under this section or under any other section of this chapter,
all persons whose land shall be taken or whose assessments shall be increased thereby shall first have been given like notices."
It is not true, as contended by appellants, that no work of any
kind can be done under Section 1989-a21 without notice to landowners. We have so held in the Breiholz case, supra, which case was affirmed by the Supreme Court of the United States.Breiholz v. Board of Supervisors, 257 U.S. 118. What particular work, if any, may be done under Section 1989-a21 that would require notice to landowners, it is not necessary for us to determine in this case, and we make no pronouncement in regard thereto. We adhere to the rule of the Breiholz case regarding work done under Section 1989-a21 that may properly be regarded as repairs to an existing and completed improvement. See Walker v.Joint Drain. Dist., supra.
At this point, the question therefore resolves itself into a fact question as to whether or not the character of the work done in the instant case was properly repair work on an existing improvement, within the meaning of Section 1989-a21. If it was, then the work could be undertaken and the assessments in payment thereof levied without previous notice to the landowners.
An examination of the record leads us to the conclusion that the work in the instant case was all work that is properly classified under the term "repair," within the meaning and contemplation of Section 1989-a21.
The levee had been constructed, and, with minor repairs that had been made because of breaches therein, had stood for approximately ten years when the new work was undertaken. The levee had, of necessity, settled during this period of time, and had been subjected to erosion. There had been repeated breaks in the levee in the intervening years. The condition necessitated extensive repair. It is quite evident that the levee *Page 242
had reached a state of deterioration where it was imperative that it be repaired and restored, in order to be of any practical efficiency or service to perform the work for which it was designed. No change was made in the location of the levee. It was not lengthened. No new lands were occupied. The obvious and sole purpose of the work was to strengthen the levee as built, and restore it so that it would adequately perform the function for which it was constructed. While the work was extensive and necessarily expensive, we think it was authorized as repair work under Section 1989-a21, and that no such "change" was made as required notice to landowners whose lands were within the levee district, which lands had already been classified and assessed.
In any event, we think that the work done in the instant case was expressly authorized by Sections 1 and 2, Chapter 302, Acts of the Thirty-seventh General Assembly. This statute was evidently enacted with specific reference to conditions that arise in levee districts and drainage districts which maintain a levee as a part of the improvement. The authorization is given under this chapter to meet such a situation as apparently arose in the instant case, where the levee had been subjected to washout, and it was necessary that repairs be made that were of a permanent, rather than a merely temporary, character. The authorization by this statute is that, "in case of washout or other injury," the levee may be enlarged or strengthened, or the height thereof increased, as may, in the judgment of the board, be required, provided that the work is done upon the recommendation of a competent engineer; and that the expense of such repair may be levied upon the real estate within the established levee district. By Section 2 it is expressly provided that:
"When any changes are made, all persons whose lands shall be taken shall have been given notice as at the original establishment of said district and have the right to be heard."
The provisions of this section are consistent with the provisions of Section 1989-a11. The one refers to a "change"before completion; the other to a "change" after completion. The evident purpose of the provisions of this chapter was to give authority to a board of supervisors to do the exact thing that appears to have been done in the case at bar. A levee was *Page 243
constructed, for the purpose of saving a district of 4,000 acres of land from the overflow of a river. The levee had but one purpose, and that was to hold back and restrain the high waters of the river. The levee was constructed upon certain lands adjacent to the river for a distance of approximately six miles. It is obvious that a levee, like a chain, is no stronger than its weakest part. It is a matter of common knowledge that a breach in the levee, or a washout at one point, may prove utterly disastrous to the farm lands protected by the levee. The purpose of the statute in question was to provide for repairs caused by "washout or other injury," so as to make the levee efficient for the purpose for which it was constructed. It is undoubtedly true that the board of supervisors might undertake work, under the guise of a repair of a levee, which would be, in effect, an entirely new improvement, and which would require notice to be given, under Section 2, to all persons whose land would be taken thereby. The location of the levee might be materially changed. New lands might be taken. The levee might be extended in length. It is not an easy matter to draw the definite line of demarcation between work that may properly be classified as "repair work," and work that might be classified as a "new improvement;" but from an examination of the record in this case we are constrained to hold that the work which was undertaken, and for which the lands of appellants are subject to assessment, was properly repair work, within the contemplation of said Chapter 302, and that the lands of appellants could be assessed therefor without any new notice. As before stated, the work was confined to work upon the original levee, as constructed. The work was done under the recommendation of a competent engineer, as the statute provides; and the recommendation of the engineer was, in effect, the suggestion of a method of procedure by which the levee should be repaired and restored. It is true that the work was extensive in its scope, but this necessarily resulted from the deteriorated and injured condition of the original improvement.
The question turns upon a question of fact as to whether the work actually done may properly be called "repair work," as distinguished from a "new improvement" or a "change" which required notice, to give validity to the action of the *Page 244
board of supervisors. We reach the conclusion from the record that the work was properly repair work, and that the board of supervisors was authorized, under the statutes above cited, to cause the same to be done and to assess the cost thereof against the lands lying within the levee district without giving notice, before letting said work, to the landowners whose lands had already been included within the levee district, and whose lands had been previously classified for assessment.
II. Appellants contend that the facts in the case bring the proceedings under the provisions of Section 1989-a25, Code Supplement, 1913. Said section is as follows:
"If any levee, drainage district or improvement heretofore established, either by legal proceedings or by private parties, or which may hereafter be established, shall prove insufficient to protect or drain all of the lands necessarily 3. DRAINS: tributary thereto, the board of supervisors, repairs: upon petition therefor as for the establishment applicabi- of an original levee or drainage district, shall lity of have the power and authority to establish a new statute. levee or drainage district covering and including such old district or improvement, together with any additional lands deemed necessary; and whenever a new district shall be established as contemplated in this section and the new improvement shall extend into or along the former improvement, the commissioners of classification and benefits shall take into consideration the value of such old improvement in the construction of the new improvement and credit the same to the parties owning the old improvement as their interests may appear."
Said section is not applicable to the instant case. There is no attempt here "to establish a new levee or drainage district covering and including such old district or improvement, together with any additional lands deemed necessary." No additional lands were deemed necessary. No change was made in the levee district. No new lands were taken. No change was made in the location of the improvement. Section 1989-a25 has no application to the facts in the instant case.
III. Appellants seek an injunction because of a claim of fraud in the amount of yardage which it is claimed was moved by the construction company, and payment for which is to be *Page 245
made by assessments upon the lands of appellants and other lands in the district.
We do not find any material disagreement as to the proper scientific manner of calculating the amount of yardage used. It appears that the engineer employed by appellants conceded that he made an erroneous calculation as to at least part of the yardage. We find no evidence of any fraud or such gross mistake as would warrant a court of equity in enjoining the payment of the amount reported by the engineer and allowed by the board of supervisors.
We find no error in the record requiring any interference on our part, and the decree appealed from is, therefore, —Affirmed.
EVANS, ARTHUR, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431228/ | This action was originally instituted against the National Surety Company, the surety on the bond of Hanson, as county treasurer of Emmet County, to recover a shortage in the accounting of the county treasurer in the sum of $21,724.60, with interest and costs. The defendant Surely Company answered the petition, and filed a cross-petition against the county treasurer, who appeared and joined the Surety Company in the answer to the petition. By agreement of the parties, the action was transferred to the equity calendar, and tried as an action in equity. The trial court rendered judgment against the Surety Company for the amount of the shortage of the county treasurer, with interest and costs, and rendered judgment in favor of the Surety Company against the county treasurer for the same amount, and provided by the decree that any dividends to be paid by the receiver of the bank upon the claim of the county treasurer, in said receivership, should be paid to that defendant who makes payment of the judgment rendered. From the judgment and decree, both the county treasurer and the Surety Company appeal. Hanson makes no complaint of the judgment against him in favor of the Surety Company, in the event that plaintiff is entitled to the judgment rendered.
Hanson became county treasurer of Emmet County on the 2d day of January, 1925. The approved bond executed by the principal and surety is conditioned as follows: *Page 217
"The condition of the above obligation is such, that the above bounden Enoch Hanson, having been duly elected county treasurer of said county at the November 1924 election for the term of two years from the 2d day of January, 1925, that as county treasurer in Emmet County, Iowa, he will render a true account of his office and of his doings therein to the proper authority, when required thereby, or by law; that he will promptly pay over to the officer or person entitled thereto all moneys which may come into his hands by virtue of his office; that he will promptly account for all balances of money remaining in his hands at the termination of his office; that he will exercise all reasonable diligence and care in the preservation and lawful disposal of all money, books, papers, securities, or other property appertaining to his said office, and deliver them to his successor or to any other person authorized to receive the same; and that he will faithfully and impartially, without fear, favor, fraud or oppression, discharge all the duties now or hereafter required of his office by law, and the sureties on such bond shall be liable for all money or public property that may come into the hands of such officer at any time during his possession of such office, then this bond to be void, otherwise in full force."
The amount of money representing the shortage of the county treasurer was on deposit with the Iowa Savings Bank of Estherville, which, on November 24, 1925, closed its doors, and was taken charge of by the superintendent of banking, as receiver. At that time, there was on deposit in said bank a fund belonging to the county in the sum of $71,724.60, but $50,000 of said amount has been established against the state sinking fund. See Andrew v. Iowa Sav. Bank of Estherville, 203 Iowa 1089. In the cited case, it was sought to establish the entire amount that was on deposit at the time of the closing of the bank against the state sinking fund, but this court held that the sinking fund was liable for only $50,000 of said deposit. This action is to recover on the fidelity bond of the treasurer the remainder of the deposit.
On May 4, 1925, the board of supervisors of the county adopted a resolution, entered of record, designating the Iowa Savings Bank as a depository for moneys coming into the hands of the county treasurer, and fixing the maximum amount to be *Page 218
deposited in said bank at the sum of $84,000. On October 7, 1925, the board of supervisors repealed the aforesaid resolution of May 4th, and adopted a substitute resolution, entered of record, again designating said bank as a depository of public funds of the county, but provided that the maximum deposit of public funds in said bank should not exceed the sum of $50,000. At that time, the amount of the deposit in said bank was approximately the sum of $81,500. After the adoption of the substitute resolution, the treasurer did not make any deposits in said bank, and from that time until the closing of the bank, the deposit was reduced in the sum of $9,260.61, which amount being considered, together with the $50,000 received from the state sinking fund, and certain other small warrants, leaves the conceded amount of the shortage $21,724.60.
The appellants contend that they are not liable for the aforesaid amount, for the reason that the deposits were made in conformity with the resolution of May 4, 1925, and that, after the maximum amount to be deposited in said bank was reduced by the substitute resolution of October 7, 1925, the county treasurer exercised due diligence in an endeavor to comply with the substitute resolution.
Section 7412 of the Code, 1927, provides:
"The state treasurer and each county treasurer shall at all times keep all funds coming into their possession as public money, in a vault or safe, to be provided for that purpose, or in some bank legally designated as a depository for such funds."
Section 7404 of the Code provides:
"The county treasurer shall, with the approval of the board of supervisors as to place of deposit, by resolution entered of record, deposit state, county, or other funds in any bank or banks in the county or an adjoining county within the state of Iowa to an amount fixed by such resolution * * *."
Section 1090-a20 of the Code provides:
"No treasurer shall be liable for loss of public funds by reason of insolvency of the depository bank, when deposited hereafter as provided by law."
It will be observed from the aforesaid provisions of the *Page 219
statutory law that it is mandatory for the county treasurer to keep the funds in a vault, or in some bank legally designated as a depository; that it is left to the board of supervisors to determine the banks in which the deposits are to be made, and the amounts thereof; and that, if the deposit is made by the treasurer in accordance with the provisions of the law, the treasurer is not liable for the loss of any funds so deposited, by reason of the insolvency of the depository bank. Upon the adoption of the repealing and substitute resolution of October 7, 1925, it became the duty of the county treasurer, if he could do so, to withdraw from the aforesaid bank all sums in excess of $50,000; for the bank was then an authorized depository of the county funds only to the amount of $50,000. See Andrew v. IowaSav. Bank of Estherville, 203 Iowa 1089. It is true that the requirement by the board of supervisors, in the adoption of a substitute resolution, that the county treasurer perform an impossibility would not make illegal the deposits previously and legally made under a former resolution. See Andrew v. Iowa Sav.Bank of Estherville, 206 Iowa 464. It is also true that equity does not require the doing of useless things, and that the fact that a check or checks were not drawn in favor of other depository banks against the aforesaid bank for the amount of the excess of the deposit in said bank is immaterial, provided that the record establishes the fact that said checks would not, and could not, have been paid. See Andrew v. Iowa Sav. Bank ofEstherville, 206 Iowa 464. In Andrew v. Iowa Sav. Bank ofEstherville, 203 Iowa 1089, we declared:
"Following the order of the board of supervisors fixing the limit of the deposit of county funds in the bank at $50,000, the treasurer was entitled to a reasonable time, consistent with the ordinary course of business, to withdraw the amount of funds in excess of the limit fixed by the board."
By this is meant that he was not required to take an extraordinary course to make the withdrawal, but was required to exercise all reasonable diligence and care in order to make the deposit in the bank conform to the resolution. It will be observed that one of the conditions of the bond is:
"That he [the treasurer] will exercise all reasonable diligence *Page 220
and care in the preservation and lawful disposal of all money * * * or other property appertaining to his office."
Another is:
"That he will faithfully and impartially, without fear, favor, fraud or oppression, discharge all the duties now or hereafter required of his office by law."
The record reveals that, within a day or two after the adoption of the resolution, the treasurer was informed by the auditor of its adoption, and that he went to the auditor's office and looked at the resolution, and noticed that the limit of the deposit in the aforesaid bank was reduced to $50,000. He did not comply with the resolution. The question is: Was it possible to comply therewith, and did he exercise all reasonable diligence in an honest endeavor to reduce the amount of deposit to comply with the resolution? It will be observed that, at the time of the adoption of the repealing and substitute resolution, the amount of the deposit in the bank was below the amount provided for by the resolution of May 4th, but exceeded the maximum amount provided for in the substitute resolution of October 7th in the sum of approximately $31,000. No action relative to the payment of, or refusal to pay, this excess was taken by the board of directors of the bank, but Groves, the president of the bank and the owner of a controlling interest therein, and Stockdale, the cashier, discussed the matter, and came to the conclusion that they would not permit a withdrawal in a lump sum of the excess of the deposit, but that said excess should be withdrawn in the "usual course of business." The amount of the cash reserve (cash in the bank and amounts on deposit with correspondent banks) on October 7th was, in round numbers, $37,000; on October 10th, $42,000; and thereafter, the amount of the cash reserve fluctuated, but generally declined, until the time of the closing of the bank, when there was a deficit of $23,000. On November 3d, the amount of the cash reserve was $30,000; between the dates of October 7th and November 3d, the amount of the cash reserve at all times exceeded the sum of $19,000, except on October 16th, when it had decreased to $12,000, but the next day increased to $24,000, and on October 24th, the amount of the cash reserve was $35,000. It will thus be observed that there *Page 221
were times when the bank could have paid the entire amount of the excess from the cash reserve. Very shortly after October 7th, Hanson talked with both the president and the cashier, and was informed that they would not pay checks for withdrawals, but that they would pay his checks in the "usual course of business." It thus becomes apparent that the officers of the bank, whether rightly or wrongly, had determined that they would not permit the withdrawal of the excess in one lump sum. Did Hanson exercise all reasonable diligence and care in an honest endeavor to reduce the deposit, before the bank closed, to $50,000? The county treasurer testified:
"I just discontinued to make any more deposits, and whenever there was a cash item from the bank, either local or foreign, would be presented at the treasurer's office, we would check on their bank for the payment of it. Any cash item coming from various banks we always checked on the bank that brought them in. Q. So the only way you sought to reduce your deposit in the Iowa Savings Bank was just in the way you had been doing business with them always before, of paying only the checks which were drawn on that bank? A. Yes, and not making any more deposits."
It will thus be observed that the treasurer did nothing to reduce the deposit, except to draw checks for cash items coming from said bank. He pursued no different course after the adoption of the resolution than had been pursued by him prior thereto, except that he did not make any deposits in the bank. Did his course of conduct constitute due diligence in reducing the deposit? Did he exercise all reasonable diligence and care in an effort to reduce the deposit to $50,000? Did he do what he could have done in this respect, even if he had acted in accordance with the suggestions of the officers of the bank? After the adoption of the repealing resolution, the treasurer drew checks upon his depository banks in the sum of $87,000, and only approximately $9,000 of it was checked out of the aforesaid bank. In each of five of the depository banks other than the Iowa Savings Bank, his checks during said period ran, in round numbers, from $11,000 to $17,000. Mr. Groves, the president of the bank, testified: *Page 222
"He [Mr. Hanson] came to me, I think, about a week after this resolution. I told him in my judgment he should not deposit any more money there, but I said we would not pay any more checks for withdrawals, `and I want you to understand that we will pay your checks in the usual course of business.' By `usual course of business' are checks that were necessary to run the business of the community. And I further added this to him: that I wanted him to treat us absolutely fair; that we were willing to take a little more of the punishment than the other fellows. `In the usual course of business,' we would have paid his checks. I toldthe county treasurer that we were willing to take a little morepunishment than the other fellows."
Hanson testified:
"I had a talk with him [Groves] substantially as he testified. Stockdale [the cashier] told me that we would have to take care of business in the general course of the county's business. Q. Now, then, those items that went to reduce the deposit in the First National Bank, part of them could have gone through the Iowa Savings Bank, couldn't they? A. I suppose. I don't know what items it might have been. They might have been school orders. Q. And you could have just as well drawn a check on the Iowa Savings Bank as the First National Bank, couldn't you? A. I could, — part of it could have been drawn. While I had in mind to do nothing to close the bank, in a former trial I testified it might embarrass the bank at times. I had that in mind. I had in mind to protect the funds of the bank."
It is also shown that, a short time before the bank closed, the county treasurer turned over to the city treasurer, at the Iowa Savings Bank, a deposit of $15,000, and to make up his deposit, drew two checks on other banks, when said checks could have been drawn upon the Iowa Savings Bank. Stockdale, the cashier, testified:
"Whether we would cash Hanson's checks depends upon the manner of presentation. If checks were presented in the usual course of business, or for county bills, we would pay them. If he had reduced that account at the rate of $5,000 or $6,000 at a clip, in the usual course of business, we would have paid the checks. When he sent checks to the state treasurer, remitting *Page 223
state taxes and things of that kind, that was the usual course of business."
On the day before the bank closed, the treasurer presented a check for the excess of the deposit. The cashier testified: "There was a definite arrangement between Hanson, Mr. Groves, and myself that he would present this check." It is apparent that, at that time, the bank was about to close, which fact was known by the officers of the bank, and in all probability by the county treasurer. To more fully set out the testimony upon which the proposition of fact must be determined, would unduly extend the length of this opinion. Perhaps it is not amiss to say that the county treasurer had one share of stock in this bank. The bank remained open for more than six weeks after the adoption of the repealing and substitute resolution. Other deposits were paid, and, according to his testimony and that of the officers of the bank, his checks in the "general course of business" in payment of obligations due from the county would have been honored and paid. There were such obligations, which were paid by checks drawn upon other banks, in which the deposits were within the limit fixed by the resolution. It is apparent that, had they been drawn on the Iowa Savings Bank, they could and would have been paid, and the deposit in the bank reduced, to conform to the resolution.
The question of the wisdom of the adoption of the repealing resolution on October 7th is none of our concern. Under the statutory law, the board of supervisors is the governing body, to determine, by resolution, the depository and the amount to be deposited therein, and it is the duty of the treasurer to exercise all reasonable diligence and care in an effort to comply with the resolution.
We have read the record with care, and it is apparent therefrom that the county treasurer did not exercise due and reasonable diligence and care to reduce the amount of the deposit, and that because thereof the amount of the excess on deposit at the time of the closing of the bank has been lost to the county. We fully agree with the judgment of the trial court, and the same is hereby affirmed. — Affirmed.
MORLING, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur. *Page 224 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431230/ | Defendant Albert Martinsen was the equitable owner of land in Page County, Iowa, which he had purchased on contract from defendant T.H. Read. On the 28th day of January, 1931, he leased this land to defendant John J. Chancey for one year, March 1, 1931, to March 1, 1932, for a rental of $3,000.00, taking a written lease and two rent notes for $1,400.00 and $1,600.00, respectively.
On the 3rd day of February, 1931, plaintiff, Louella J. Read, served original notice, and on the 9th day of February, 1931, filed her petition asking for judgment against defendant Clarence T. Gregg on a note executed by him and then owned by plaintiff, and asking for the foreclosure of a second mortgage on the land in question and other land, which mortgage had been executed by the defendant Gregg as former owner thereof, and which she alleged had been assumed by the defendants Albert Martinsen and Martin Martinsen. In her petition she also asked for the foreclosure of the mortgage securing said note, and for the appointment of a receiver to collect the rents and profits from the land. By an amendment to her petition, filed March 13, 1931, plaintiff withdrew any claim for personal judgment against the defendants Martin Martinsen and Albert Martinsen. By a further amendment, filed March 27, 1931, plaintiff alleged that subsequent to the execution and delivery of the note and mortgage in suit the defendant T.H. Read foreclosed a mortgage on said land which was junior and inferior to the mortgage in suit, and that, under said foreclosure proceeding, he purchased *Page 794
said land and secured a sheriff's deed therefor and is now the holder of the legal title, and that the said T.H. Read should be made a party defendant. Defendant T.H. Read entered an appearance and consented that decree be entered by the court as prayed by plaintiff in her petition and amendments.
On the 27th day of March, 1931, a decree of foreclosure was entered upon the petition of the plaintiff, Louella J. Read, foreclosing the said mortgage upon the said land of which the defendant Albert Martinsen was the equitable owner and upon other land included in said mortgage, and appointing a receiver for the portion of the land covered by said mortgage which was not owned by the defendant Albert Martinsen.
On the 3rd day of August, 1931, plaintiff, Louella J. Read, filed a further amendment to her petition, making John Chancey a party defendant, and alleging that, after the commencement of her said action, said defendant moved upon the land in question and is occupying same as a tenant under some arrangement made with the defendant Albert Martinsen. She alleges further that, since the original decree was rendered, all land foreclosed upon has been sold under special execution, and that, after applying the sale price to plaintiff's claim and costs, there remains a deficiency judgment of $1,982.01; that the rent from the land will not be sufficient to pay said deficiency. She asks that the receivership be extended to cover the land in question, of which Albert Martinsen is the equitable owner, and that the defendant John Chancey be required to account to said receiver for the rent of said land. On September 1, 1931, defendant John J. Chancey filed a separate answer and counterclaim in which, after denying all allegations of plaintiff's petition and amendments thereto which were not specifically admitted, he states that on the 28th day of January, 1931, he entered into a lease with the defendant Albert Martinsen for the land in question for the year March 1, 1931, to March 1, 1932; that he moved onto said land on the 2nd day of February, 1931, and has been in possession thereof since said date; that he agreed to pay cash rental of $3,000, $1,400.00 of which is due September 1, 1931, and $1,600.00 of which is due February 1, 1932, and evidenced by two promissory notes dated January 28, 1931, which were delivered to the defendant Albert Martinsen. He further states that on the 18th day of August, 1931, he received a letter from one A.W. Foust notifying him that the said note for $1,400.00 would be due September 1, 1931, and *Page 795
that he is informed and believes that said Foust claims to be the owner of said note. He admits the obligation for the payment of rent, states that he is indifferent as to the person to whom he shall pay the same, and asks an order of court making A.W. Foust a party to this action.
On the 2nd day of September, 1931, plaintiff, Louella J. Read, filed her answer to the counterclaim of defendant Chancey in which she denies that he is entitled to any reduction of rent and asks that said counterclaim be dismissed. On the 2nd day of September, 1931, A.W. Foust filed his petition of intervention, in which, after alleging the execution of the lease and notes by defendant Chancey to defendant Albert Martinsen, he further alleges that prior to the 9th day of February, 1931, said notes were endorsed and said lease assigned to him by said defendant Albert Martinsen for a good and valuable consideration; that he is the owner of the said notes and lease; and that by virtue of the lease he is entitled to a landlord's lien upon the crops raised upon the land in question: and he asks that such landlord's lien be established and that his interest in the rents and profits of said land be decreed to be prior and superior to the rights of the plaintiff.
On the 2nd day of September, 1931, defendant Albert Martinsen filed his separate answer to plaintiff's amendment to petition, in which he alleges that he is the owner of the real estate described in plaintiff's petition, under a contract of sale with one T.H. Read; that prior to the filing of plaintiff's original petition on the 9th day of February, 1931, he entered into a contract of lease with defendant Chancey, leasing said real estate for the cropping years, 1931-1932; that, pursuant to the terms of said lease, Chancey has entered into the possession of said real estate; that the said Chancey agreed to pay the said rental of $3,000.00 represented by promissory notes of $1,400.00 and $1,600.00, respectively; that prior to filing of the original petition by plaintiff he sold and endorsed said notes and assigned said lease to A.W. Foust for a valid consideration; that the interest of this answering defendant in said action is as endorser upon said notes; that the assignee of the said lease is entitled to a landlord's lien upon the crops raised upon said land; that this answering defendant is entitled to have said lien established against said crops to protect him as endorser upon the said notes: and he asks that, whatever order is made with reference to the appointment of a receiver for said real estate or for rentals to be paid to said receiver, *Page 796
such order be subject to the terms and conditions of the said lease.
On the 13th day of October, 1931, defendant Chancey filed his separate answer to petition of intervention of A.W. Foust, in which, after denying all allegations of said petition except such as are specifically admitted, he admits the execution of the lease and rent notes for $3,000.00 to defendant Albert Martinsen; alleges that he has no information as to the sale and assignment of said notes by Martinsen to intervenor, Foust; states that he has no information or belief as to whether or not the rights of the intervener to rents or profits are prior to and superior to plaintiff's rights, and denies same; admits that he is obligated for the payment of the rent above the amount of the counterclaim; states that he is indifferent as to whom the rent shall be paid; and asks the court to find and determine the amount of and to whom such rents should be paid.
Thereafter, trial was had and decree entered by the court on the 5th day of December, 1931. In this decree the court found that the lease and rent notes were taken and assigned to the intervener, Foust, for the purpose and intent on the part of Albert Martinsen and A.W. Foust to defraud the holder of the mortgage in suit and prevent said holder from taking advantage of the receivership clause in said mortgage; that the intervener, Foust, is not the holder of said notes in due course, but is a mere assignee thereof, and has no greater rights in the rentals and income from said land that the said defendant Albert Martinsen would have if said notes and lease were still held by him. The court further finds that, by agreement of all parties, a counterclaim of defendant Chancey in the sum of $757.50 is to be deducted from the rent note of $1,600.00 due February 1, 1932; decrees the appointment of a receiver and directs that the lease and rent notes with the credit of $757.50 thereon be placed in the hands of such receiver for enforcement against said Chancey; and orders that judgment be entered against the defendant Albert Martinsen and against the intervener, A.W. Foust, for the costs incurred by reason of the issue joined between plaintiff and said parties to this hearing.
[1] From said decree the intervener, A.W. Foust, appealed to this court, and served notice of such appeal upon the plaintiff, Louella J. Read. No notice of such appeal was served upon any of the defendants. The plaintiff-appellee, Louella J. Read, has filed herein a motion to dismiss said appeal. *Page 797
I. Appellee's motion to dismiss the appeal is based upon two grounds:
"1. That no notice of appeal was served on the defendant Albert Martinsen, the equitable owner of the land;
"2. That no notice of appeal was served on the defendant John J. Chancey, the tenant on the farm both before and after the appointment of the receiver."
The statutes relating to service of notice of appeal are found in Sections 12834 and 12837 of the Code of 1931, and are as follows:
"12834. Appeal by coparties. A part of several coparties may appeal, but in such case they must serve notice of such appeal upon those not joining therein, and file proof thereof with the clerk of the court from which the appeal is taken.
"12837. Notice of appeal — service. An appeal is taken and perfected by the service of a notice in writing upon the adverse party, his agent, or any attorney who appeared for him in the case in the court below, and by filing said notice with return of service indorsed thereon or attached thereto with the clerk of the court wherein the proceedings were had, stating the appeal from the same, or from some specific part thereof, defining such part."
These statutes provide for service of notice of appeal upon all parties to an action, both coparties and adverse parties. If service is made upon all parties, as directed by these statutes, this court will have jurisdiction to hear the appeal. In the case of Oskaloosa Savings Bank v. Miller, 189 Iowa 393, in referring to Section 4111, Code of 1897, in which the provision for service on coparties was the same as in Section 12834 of the present Code, we said:
"Section 4111, Code, 1897, which requires service on coparties, creates no substantive law. Before the passage of that statute, this court lacked the power to settle controversies where there was a fatal defect in parties. That is still so. It is a denial of due process of law to act, if necessary parties are not before the court. This statute merely declares how a fatal defect of parties may be avoided. It takes the place of summons awarded at common law, on motion of the plaintiff in error, that other parties join in the appeal, and of the severance granted on refusal which permitted that plaintiff to prosecute the appeal alone. No appellate court may take anything *Page 798
from one over whom it has not acquired jurisdiction. This statute provides the means for obtaining that jurisdiction. * * * The limitation upon judicial action is, in essence, that no reversal shall take away anything from one who is not brought into court. The failure to serve the notice required by this statute is, strictly speaking, not a failure to obtain jurisdiction for the appellate court. It may decide the appeal, provided it is unnecessary to pass upon any issue that affects the party not brought into court. The notice, in strictness, does not more than give power to consider matters involving the interest of the party notified."
In Clayton v. Sievertsen, 115 Iowa 687, we quoted with approval the rule laid down in Elliott's Appellate Procedure, Section 144, which says:
"`It (notice) certainly is jurisdictional whenever the nature of the case is such as to render it necessary to have all the parties before the court, in order to fully determine their rights.'"
In Oskaloosa Savings Bank v. Miller, supra, after again quoting this rule with approval, we added:
"And, if there may not be a reversal without prejudicing parties who have not been served, the appeal must be dismissed."
See, also, Dillavou v. Dillavou, 130 Iowa 405; In re Will of Downs, 141 Iowa 268; Security Trust Savings Bank v. Gallup,195 Iowa 243; Taylor v. Woodburn Bank, 198 Iowa 772; Independent School District v. State Savings Bank, 204 Iowa 1; Piercy v. Bronson, 206 Iowa 589; Coggon State Bank v. Woods, 212 Iowa 1388; Jenkins v. Beeler, 213 Iowa 501.
It is apparent from what has been said above that a failure to serve all parties, as directed by the statutes, does not necessarily deprive this court of jurisdiction. A party whose interest will in no way be affected by a reversal may not be served with notice of appeal and this court still have power to decide the appeal. On the other hand, any party whose interest will be adversely affected by a reversal is a necessary party to the appeal, and a failure to serve such a party with the notice of appeal leaves this court without jurisdiction.
II. Appellee contends that a reversal of the decree will prejudicially affect both Martinsen and Chancey. In their pleadings *Page 799
Martinsen and the intervener, Foust, both alleged that the lease and two rent notes were given to Foust in exchange for two promissory notes of Martinsen which were owned by Foust. In this exchange Martinsen endorsed the two rent notes, and, if the transaction was bona fide, he thus became liable to Foust on these endorsements. The decree of the trial court holds that the transaction was fraudulent, and gives the notes to the receiver with the right to enforce payment thereon against Chancey. Foust has been deprived of the rent notes. He cannot compel Martinsen to make good on his endorsements of these notes, and he cannot compel Martinsen to return the two personal notes of Martinsen which he gave to Martinsen in exchange for the rent notes, because, as between themselves, courts will not aid parties who have committed a fraud. As between themselves, courts will leave such parties to suffer whatever loss they may sustain as the result of their acts in furtherance of the fraud. Martinsen did not endorse the rent notes to the receiver, and the decree did not give the receiver any rights against Martinsen because of the endorsements. As long as the decree stands, Martinsen is freed of any liability on his endorsements of the notes. But, if the decree should be reversed, it must be because the trial court was wrong in holding the transaction between Martinsen and Foust to be fraudulent. If this transaction was not fraudulent, Foust is the lawful owner of the rent notes, and Martinsen is liable on his endorsements of these notes to Foust.
[2] In the decree of the trial court judgment for costs was entered against the defendant Albert Martinsen and the intervener, A.W. Foust. If this decree is reversed, it must be because this court finds that the transaction between Martinsen and Foust was not fraudulent, and that the notes and the lease should be restored to the intervener, Foust. In that event, there is no reason why this court should not reverse the provision of the decree which gives a judgment for costs against Foust. The defendant Martinsen, however, not having appealed, cannot be granted any relief by this court, and, as to him, there will still remain the liability for the full amount of the costs. As the decree stands, he is liable for the payment of the full amount of the costs; but, if he pays all these costs, he has a right against Foust to enforce contribution of his part of such costs. If the decree be reversed and intervener, Foust, relieved from all liability for costs, the defendant Martinsen would thus be deprived of his right to enforce contribution from Foust. *Page 800
The defendant Chancey denied Foust's petition of intervention and denied his ownership of the notes and lease. The decree holds that the notes and lease do not belong to Foust, vests title thereto in the receiver, and directs the receiver to collect the rents from Chancey, giving him credit for $757.50 allowed him on his counterclaim by agreement of all parties. Under the decree, therefore, Chancey is liable for the payment of the rents, less this credit, to the receiver. If the decree should be reversed, Foust would be declared the owner of the notes and would have a right to enforce them against Chancey. Chancey not having appealed, no change could be made in the decree so far as it affects him. So far as Chancey is concerned, therefore, the provisions of the decree making him liable for the payment of the rent to the receiver would stand. It further appears in the decree that the receiver was directed to harvest the corn crop for the year 1931, and, after giving Chancey credit for $757.50, he was ordered to pay the amount realized from the sale of the corn, less expenses of gathering and marketing same, to the plaintiff on her deficiency judgment. There is nothing in the record to indicate, and we cannot assume, that this has not been done. The presumption is that the directions in the decree have been carried out and that Chancey has already paid the rents. If, however, the decree is reversed, the rent notes will be returned to Foust, and Chancey, although he has already paid the rents, will still be liable on the rent notes to Foust.
We see no escape from the conclusion that the contentions of the appellee are good, and that a reversal of the decree by this court would be prejudicial to parties who have not been served with the notice of appeal. The appeal must, therefore, be — Dismissed.
All the Justices concur except Justice Stevens, who takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247149/ | GORTON, J.
This case involves a dispute about coverage under an insurance policy and, specifically, whether the owner of a speed boat is indemnified with respect to a purported boating accident that occurred in Boston Harbor. Kevin & Donna Maclean ("plaintiffs" or "the Macleans") seek a declaratory judgment that Travelers Insurance Company ("Travelers" or "defendant") is obligated to indemnify and defend William Fallon ("Fallon"), the owner of the M/V NIKKI, in a tort action arising from that incident. The tort claim is the subject of a separate proceeding, Maclean v. Boston Har bor Mini Speed Boats (14-cv-14288) ("the underlying action"), which is also pending in this session.
Now before this Court is defendant's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. For the following reasons, that motion will be denied with respect to subject matter jurisdiction but allowed for failure to state a claim.
I. Background
In August, 2013, the Macleans boarded the M/V NIKKI to enjoy a "lightning speedboat adventure". According to the Macleans, the speedboat was traveling at a high rate of speed when it crossed the wake of another boat, tossing the plaintiffs into the air. They allege that when they crashed down onto the vessel they were seriously injured.
The Commercial Marine Insurance Policy that is the subject matter of this action was issued by Travelers Property Casualty Company of America to William Fallon, effective from June 26, 2013 to June 26, 2014 ("the policy"). Although the renewed policy was in effect at the time of the *233alleged incident, the vessel was operated by Martin Cahill who was not named as an operator under the Named Operator Endorsement to the policy until two days after the accident. Travelers asserts that Cahill's operation of the vessel breached a policy warranty and, accordingly, it owes no duty to indemnify or defend Mr. Fallon in the underlying action.
Plaintiffs filed the present complaint in June, 2016, seeking 1) a declaration of rights that the policy covers the plaintiff's alleged injuries; 2) a declaration of rights that Travelers is obligated to indemnify and defend Mr. Fallon; and 3) costs and other relief the Court deems fair and appropriate. In response, the defendant filed the motion to dismiss currently before the court.
Because the Court agrees that Mr. Cahill's involvement breached the Named Operator Warranty, defendant's motion to dismiss will be allowed.
II. The Policy
This dispute turns on two provisions of the Commercial Marine Insurance Policy. First, the policy's choice of law provision provides that "[t]his policy shall be interpreted in accordance with the provisions of Federal Maritime Insurance Law."
Second, the policy contains a Named Operator Endorsement, which provides in relevant part:
Named Operator means the Named Insured and any other person, so designated by the Named Insured and approved by Us, to operate the insured vessel. Named Operators approved to operate the insured vessel are listed on the Named Operator Schedule included with this endorsement.
It is hereby warranted that all coverage provided under this policy is null and void when the insured vessel is operated by anyone other than those persons listed on the Named Operator Schedule.
In May, 2017, Fallon "unconditionally and irrevocably" and "for good and valuable consideration received" assigned his rights under the policy to the Macleans for purposes of contesting Travelers' denial of coverage.
III. Analysis
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering the merits of a motion to dismiss, the Court may look only to the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint and matters of which judicial notice can be taken. Nollet v. Justices of Trial Court of Mass., 83 F.Supp.2d 204, 208 (D. Mass. 2000), aff'd, 248 F.3d 1127 (1st Cir. 2000). Furthermore, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). Although a court must accept as true all of the factual allegations contained in a complaint, that doctrine is not applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
A. Lack of subject-matter jurisdiction
Defendant contends that this Court lacks subject matter jurisdiction over this case because plaintiffs lack standing and that the declaratory judgment requested by plaintiffs is not yet ripe. Both contentions are misguided.
The "irreducible constitutional minimum of standing" requires that a plaintiff 1) suffered an injury in fact, 2) fairly traceable *234to the actions of the defendant that is 3) likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016).
William Fallon assigned his rights under the policy to the Macleans "for purposes of contesting Travelers denial of insurance coverage" for the incident. Given that assignment, plaintiffs have a legal interest, are potentially injured by defendant's conduct and would be redressed by a declaratory judgment in their favor. Plaintiffs have standing to bring this action.
Defendant further contends that this declaratory judgment action is not ripe because the claimant has yet to resolve the underlying action against the tortfeasor. That contention also fails. Even though the plaintiffs have not yet established that "coverage extends to the claims against [the tortfeasor] does not render the claim unripe." Tocci Bldg. Corp. of New Jersey v. Virginia Sur. Co., 750 F.Supp.2d 316, 323 (D. Mass. 2010).
Plaintiffs have standing and their claim is ripe. The defendant's motion to dismiss for lack of subject matter jurisdiction will be denied.
B. Failure to state a claim upon which relief can be granted
Defendant also maintains that plaintiffs have failed to state a claim because it is clear from the complaint that the named operator warranty in the policy was breached and thus coverage was voided. Plaintiffs respond that Massachusetts law governs the policy, placing it within the ambit of M.G.L. c. 175, § 186. Under that statute, they contend, the warranty was either not breached or the breach did not void coverage. In either case, plaintiffs maintain, the policy covers the incident.
Plaintiffs' theory is unavailing. The clear language of the contract unambiguously places the incident outside the protection of the policy.
Maritime law, and not the law of the Commonwealth of Massachusetts, governs the contract. Federal courts sitting in admiralty apply federal choice of law rules. Szafarowicz v. Gotterup, 68 F.Supp.2d 38, 43 (D. Mass. 1999) (citing State Trading Corp. of India v. Assuranceforeningen Skuld, 921 F.2d 409, 414 (2d Cir.1990) ) (additional citation omitted). Under those rules, where a maritime contract includes a choice of law clause, that choice governs unless the jurisdiction has no substantial relationship to the transaction or parties, or the law of that jurisdiction conflicts with the fundamental purposes of maritime law. Cashman Equip. Corp. v. Kimmins Contracting Corp., 2004 WL 32961, at *3 (D. Mass. Jan. 5, 2004) (citing Stoot v. Fluor Drilling Servs., Inc., 851 F.2d 1514, 1517 (5th Cir. 1988) ) (additional citation omitted).
The policy contains an unambiguous choice of law clause providing that "[t]his policy shall be Interpreted in accordance with the provisions of Federal Maritime Insurance Law." Here, maritime law has a substantial relationship to the parties and, a fortiori, maritime law cannot conflict with the fundamental purpose of maritime law. Cf. Lloyd's of London v. Pagan-Sanchez, 539 F.3d 19, 26 (1st Cir. 2008) (deferring to insurance policy's choice of law clause in maritime insurance dispute).
Under maritime law, "a breach of a promissory warranty in a maritime insurance contract excuses the insurer from coverage." Id. at 24 (citations omitted). The Named Operator Endorsement is a promissory warranty because it is a provision "by which the insured stipulates that something shall be done or omitted after the policy takes effect and during its continuance." Id. (quoting *2352 L.R. Russ & T.F. Segalla, Couch on Insurance § 81:14 (3d ed. 2008) ).
Fallon acknowledged that the policy would be "null and void when the insured vessel is operated by anyone other than those persons listed on the Named Operator Schedule." The incident occurred when someone other than a listed operator was operating the vessel. The policy's coverage does not extend to the incident.
Plaintiffs present a time-insensitive alternative that seeks to obscure the clear contractual text. Although they acknowledge that Mr. Cahill was not a named operator on August 12, 2013, the date of the accident, they emphasize that he was added to the named operator schedule two days later. They contend the policy is silent about retroactive approval and, because ambiguous insurance provisions are resolved against the insurer, the warranty was not breached. While the theory is clever, it does not square with the clear text of the policy which is void when operated by a non-listed operator. This Court declines to create ambiguity where none exists.
Accordingly, the Court concludes that Fallon breached the warranty of the policy and that Travelers has no duty to indemnify or defend him in this action. The defendant's motion to dismiss for failure to state a claim upon which relief can be granted will be allowed.
ORDER
For the foregoing reasons, defendant's motion to dismiss (Docket No. 7) is ALLOWED .
So ordered. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3431185/ | On August 16, 1929, W.H. Williams was appointed administrator of the estate of Isabelle H. Foster, deceased. At that time he was cashier and managing officer of the Citizens State Bank of Earlham, Iowa, and so continued until the 6th day of September, 1930, when this bank closed and a receiver was appointed. This administrator kept the funds of the estate on deposit in the bank of which he was cashier, and at the time of the closing of the bank there was to his credit as such administrator the sum of $1,076.17. The receiver of the bank has paid his final dividend, and on this deposit the administrator received dividends to the amount of $240.59. Williams made his final report to the court as administrator, in which he accounts for the dividends received from said *Page 1203
receivership, and the balance of $835.58 he reported as lost by reason of the insolvency of said bank. Objections were filed to this final report, and the objectors insist that the administrator must account to the court for the aforesaid $835.58. The basis of the objections made was that the administrator negligently left the said deposit in the bank until it failed and went into the hands of a receiver, and that the loss of said funds to the estate was due to the administrator's failure to properly perform his duties in relation to the same.
[1] This being an action at law, it is not triable de novo
here, and the findings of the district court have the same force and effect as the verdict of a jury. The district court found that the administrator had failed to properly perform his duties in relation to this fund, and that he therefore must account for the same. At this point in the case we must say that, aside from the rule just announced, when we come to consider the record in the case we find many exhibits — by way of books, statements, ledger sheets, and reports — which are referred to in the record and which were before the district court when the case was tried, that are not before us, and on account of the lack of these exhibits we are disposed to hold that the findings of the district court in relation to these matters are correct. Aside from this, however, we have tried to get what light we can from the record and, so far as we are able to see, the fact findings which the district court must have made in order to reach the conclusion it did are correct.
[2] We then have left the questions of law involved. In the case of In re Enfield's Estate, 217 Iowa 273, 251 N.W. 637, we had this identical situation before us, and therein held that the administrator must account for the money lost in the insolvent bank. The Enfield case disposes of all the questions that could be raised in this case, and must rule the same, except that the administrator argues that, although the run on the bank started three days before it was closed, he had no right to withdraw the funds on deposit belonging to this estate because if he had done so it would have created a preference. He relies largely on Julius v. State, 113 Okla. 7, 237 P. 605. This opinion is of little weight because it is based upon a peculiar statute of said state. He also relies on Leach v. Beazley, 201 Iowa 337, 207 N.W. 374. This case is of no weight in considering the questions before us, because Miller (the executor in that case) was not a managing officer of the bank. *Page 1204
Reliance is also placed on section 9220 of the Code of 1931, the argument being that this section prevents the managing officer of an insolvent bank from withdrawing funds if by so doing he creates a preference. This whole contention is purely adventitious. The real situation is that, under the record in this case, the administrator was derelict in his duty, in that he failed to account to the court for the funds that he had in his hands as such administrator, and the excuse he offers therefor is not tenable under the fact situation in the case.
Viewed from another angle, however, if we concede for the purpose of the argument that the administrator, when he discovered the insolvency of the bank, had no right to withdraw this fund and thereby create a preference, we still think that this element is not controlling in the case. He had the general duty under the statute to do all those things which were necessary and reasonable to protect this fund. He had a way provided by statute to free himself from liability, under section 9285 of the Code:
"Any court having appointed, and having jurisdiction of any receiver, executor, administrator, guardian, assignee, or other trustee, upon the application of such officer or trustee, after such notice to the other parties in interest as the court may direct, and after a hearing upon such application, may order such officer or trustee to deposit any moneys then in his hands, or which may come into his hands thereafter, and until the further order of said court, with any such trust company, state or savings bank, and upon deposit of such money, and its receipt and acceptance by such corporation, the said officer or trustees shall be discharged from further care or responsibility therefor. Such deposit shall be paid out only upon the orders of said court."
Had he followed the provisions of this section of the Code, he would have been discharged from further care or responsibility for said fund, and any reasonable man, who was seeking to protect himself as such administrator, would have adopted the method marked out in the statute here to free himself from such responsibility. It may be that this was the view of the court in reaching the conclusion it did. We are, therefore, of the conclusion that, in any view that might be taken of this case, the administrator cannot escape liability, and therefore the action of the district court was *Page 1205
right, under the record in this case, in requiring him to account for this fund so lost in the bank.
Motion to strike amendment to abstract is overruled. — Affirmed.
MITCHELL, C.J., and KINDIG, EVANS, DONEGAN, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3216744/ | Order Michigan Supreme Court
Lansing, Michigan
June 22, 2016 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Brian K. Zahra
152758(41)(42) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
COVENANT MEDICAL CENTER, INC., Joan L. Larsen,
Plaintiff-Appellee, Justices
SC: 152758
v COA: 322108
Saginaw CC: 13-020416-NF
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant-Appellant.
_________________________________________/
On order of the Chief Justice, the motion of defendant-appellant to extend the time
for filing its brief on appeal is GRANTED. The brief will be accepted as timely filed if
submitted on or before August 12, 2016. On further order of the Chief Justice, the
motion of the Coalition Protecting Auto No-Fault to participate as amicus curiae and file
an amicus brief is GRANTED. The amicus brief shall be filed within the time provided
by MCR 7.312(H)(3).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 22, 2016
Clerk | 01-03-2023 | 06-24-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431152/ | Bert Vilas and his son, doing business as a copartnership under the firm name of Vilas Son, are engaged in the produce business at Storm Lake, Holstein and Sioux Center. Each of the partners filed an individual income tax return, as provided by chapter 82 of the Acts of the 45th General Assembly. Bert Vilas reported that he owed a tax of $40.33. The theory upon which his individual return was prepared was that he was not required to file a return or pay income tax on account of his share of any of the profits received by the partnership from business carried on outside the State of Iowa. The Iowa State Board of Assessment and Review, not being satisfied with the individual return or the partnership return, audited the books of the partnership. Upon this audit being made it was shown that the net income of the partnership for the taxable year was $30,722.31, which, added to each partner's salary deducted, made a total of $35,447.31. Of this amount Bert Vilas received $2,400 in salary and 75% of the profits of the business. His share of the net profits of the partnership was $23,041.73, which, added to his salary already received, made $25,441.73 as his distributive share of the partnership profits. The board therefore made an additional assessment against Bert Vilas in the sum of $1,032.22, together with penalty of $51.61, and interest from April 1, 1935. A notice of the additional assessment was forwarded to him, as provided by the act, but he refused to pay the additional assessment and commenced this action to enjoin the collection of the tax, claiming that the income tax was unconstitutional and that it violated not only the Constitution of the State of Iowa but also the Federal Constitution. The Iowa State Board of Assessment and Review, and its members, filed answer. There was a trial, at which evidence was offered and arguments were made. The lower court dismissed the petition and rendered judgment against the plaintiff for the costs. Being dissatisfied, he has appealed. *Page 607
[1] It is the claim of the appellant that the income tax as passed by the legislature of Iowa is unconstitutional. There is one rule of construction of statutes universally recognized which we must keep in mind. Every legislative act is presumed to be constitutional and every intendment must be indulged in by the courts in favor of its validity. A statute will not be declared unconstitutional unless it is so clearly and plainly in contravention of the constitutional limitations and its guarantees as to leave no reasonable doubt as to its unconstitutionality. If there be a doubt the courts will declare the act constitutional. With that thought in mind we proceed to discuss the various interesting questions raised.
[2] I. It is strenuously argued that chapter 82 of the Acts of the 45th General Assembly, Extra Session, is lacking in uniformity, discriminates against appellant, and is in violation of section 6 of Article I of the Constitution of Iowa, which is as follows:
"All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens."
Bert Vilas and his son are individuals who conduct their business as a copartnership. The discrimination of which they complain is as follows: (1) Section 28 of the Act exempts corporations from paying any income tax upon that part of their business attributable to trade, sales or business outside the boundaries of the state, altho individuals, partnerships and fiduciaries are granted no such exemption. (2) The graduate rate provided for in section 5 of the said chapter is not uniform, as required by section 6 of our Constitution. (3) Corporations are taxed at the rate of 2% on their net income under section 28 of the said chapter, yet individuals, partnerships and fiduciaries who may be engaged in the same line of business are taxed at 5% as soon as their net income reaches five thousand dollars.
The very questions here raised have lately been before the Supreme Court of the United States. We quote from the decision in the case of Lawrence v. State Tax Commission of Mississippi,286 U.S. 276, 52 S. Ct. 556, 76 L. Ed. 1102, 87 A.L.R. 374, 376, as follows: *Page 608
"Appellant, a citizen and resident of Mississippi, brought the present suit to set aside the assessment of a tax upon so much of his net income for 1929 as arose from the construction by him of public highways in the State of Tennessee. The taxing statute was challenged on the ground that in so far as it imposes a tax on income derived wholly from activities carried on outside the state, it deprived appellant of property without due process of law, and that in exempting corporations, which were his competitors, from a tax on income derived from like activities carried on outside the state, it denied to him the equal protection of the laws.
"The obligation of one domiciled within a state to pay taxes there, arises from the unilateral action of the state government in the exercise of the most plenary of sovereign powers, that to raise revenue to defray the expenses of government and to distribute its burdens equably among those who enjoy its benefits. Hence, domicile in itself establishes a basis for taxation. Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable from the responsibility for sharing the costs of government. See Fidelity C. Trust Co. v. Louisville,245 U.S. 54, 58, 62 L. Ed. 145, 148, L.R.A. 1918C, 124,38 S. Ct. 40; Maguire v. Trefry, 253 U.S. 12, 14, 17, 64 L. Ed. 739, 750,751, 40 S. Ct. 417; Kirtland v. Hotchkiss, 100 U.S. 491, 498,25 L. Ed. 558, 562; Shaffer v. Carter, 252 U.S. 37, 50,64 L. Ed. 445, 455, 40 S. Ct. 221."
And at page 283 of 286 U.S., at page 558 of52 S. Ct., at page 1107 of 76 L. Ed., at page 379 of 87 A.L.R. of that opinion we read:
"The statute relieves domestic corporations from the tax only in so far as their income is derived from activities carried on outside the state. The appellant is thus compelled to pay a tax from which his competitors, if domestic corporations, are relieved, and this, it is urged, is so plainly arbitrary as to infringe the equal protection clause.
"But, as there is no constitutional requirement that a system of taxation should be uniform as applied to individuals and corporations, regardless of the circumstances in which it operates, acceptance of this contention would relieve the appellant from the burden which rests on him to overcome the *Page 609
presumption of facts supporting constitutionality, which attaches to all legislative acts, and would require us to assume that there is no state of facts reasonably to be conceived which could afford a rational basis for distinguishing, for taxation purposes, between income of individuals and that of domestic corporations, derived from business carried on without the state. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 79,55 L. Ed. 369, 377, 378, 31 S. Ct. 337, Ann. Cas. 1912C, 160; Rast v. Van Deman L. Co., 240 U.S. 342, 357, 60 L. Ed. 679, 687, L.R.A. 1917A, 421, 36 S. Ct. 370, Ann. Cas. 1917B, 455; O'Gorman Young v. Hartford F. Ins. Co., 282 U.S. 251, 257, 258, 75 L. Ed. 324,327, 328, 72 A.L.R. 1163, 51 S. Ct. 130.
"What the local conditions are in Mississippi and its neighboring states with respect to businesses like the present, carried on across state lines by individuals and corporations, does not appear. How the statutory provisions now in question are related to others by which a permissible divergence in state policy with respect to the taxation of corporations and of individuals may be effected, is not shown. See General American Tank Car Corp. v. Day, 270 U.S. 367, 373, 70 L. Ed. 635, 638,46 S. Ct. 234; Interstate Busses Corp. v. Blodgett, 276 U.S. 245,251, 72 L. Ed. 551, 554, 48 S. Ct. 230; Farmers M. Sav. Bank v. Minnesota, 232 U.S. 516, 529 et seq., 58 L. Ed. 706, 712,34 S. Ct. 354. We cannot say that investigation in these fields would not disclose a basis for the legislation which would lead reasonable men to conclude that there is just ground for the difference here made. The existence, unchallenged, of differences between the taxation of incomes of individuals and of corporations in every federal revenue act since the adoption of the 16th Amendment, demonstrates that there may be."
And so in the case at bar the appellant has offered no competent evidence to show that there is any discrimination as between him, as an individual, and any domestic corporation conducting a like business in the same territory. The fact that some of the adjoining states have a lower income tax rate than Iowa does not sustain the assertion that the Iowa law is discriminatory against its own residents. There are certain taxes which domestic corporations must pay that individuals do not pay.
It must be remembered that section 6, Article I, of the Constitution of Iowa, *Page 610
and section 1 of the 14th Amendment to the Federal Constitution, do not provide that taxes must be uniform, regardless of the nature of the tax, Section 6 of Article I of the Iowa Constitution says:
"The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens."
This constitutional provision is therefore not violated so long as the law operates uniformly upon all in the same class. That is what was done in this case. Individuals as a class must pay a tax, and domestic corporations as a class must pay a certain rate.
[3] II. Appellant claims that chapter 82 provides for a lower rate of taxation upon the property of corporations than upon the property of individuals, and is in violation of section 2 of Article VIII of the Constitution of the State of Iowa, which reads:
"The property of all corporations for pecuniary profit, shall be subject to taxation, the same as that of individuals."
This court has been confronted before with this question. In the case of Scottish U. N. Ins. Co. v. Herriott, 109 Iowa 606, at page 613, 80 N.W. 665, 667, 77 Am. St. Rep. 548, we find:
"Whether the act is in contravention of the article of the constitution providing that the property of all corporations for pecuniary profit shall be subject to taxation the same as that of individuals depends upon whether the tax in question is a tax on property, a tax upon a business or privilege, or a license tax or condition imposed as a prerequisite to the right of foreign corporations to do business in the state. We are willing to concede that, if the tax imposed by the act is simply a tax on property it is vulnerable to the constitutional provision just referred to, and perhaps interdicted by other provisions of both state and federal constitutions. But if it is a tax on business, or on the privilege of doing business in the state, or if it is simply a condition imposed by the state as a prerequisite to the right of the corporation to do business in the state, then it is not vulnerable to any constitutional provision. There is no requirement of either the *Page 611
federal or state constitution that taxes on business or on privileges shall be uniform. Pembina Consol. Silver Mining
Milling Co. v. Pennsylvania, [125 U.S. 181, 8 S. Ct. 737,31 L. Ed. 650], supra. It is permissible for a state to exact a license fee, and also impose a tax on the business done. Cooley, Taxation (1st Ed.), pp. 385, 386; People v. State Treasurer, 31 Mich. 6; People v. Thurber, 13 Ill. 554."
And in the case of Iowa Mutual Tornado Insurance Assn. v. Gilbertson, 129 Iowa 658, at page 669, 106 N.W. 153, 157, this court said:
"Lastly, it is insisted that the property of plaintiffs is exempt under section 1304 of the Code of Iowa, which exempts the property of religious, charitable, and educational institutions. This is not true for two reasons. First, the tax is not a property tax, but a business or license exaction; and, second, plaintiffs are not religious, charitable, or educational institutions. We decline to adopt some of the recent definitions of insurance given by high officials in the New York investigations. They are not benevolent institutions. State v. Critchett, 37 Minn. 13, 32 N.W. 787, 788."
"The provisions of the State Constitution with reference to the taxation of the property of corporations, the same as that of individuals has no application, for the reason that the tax imposed by section 1333d is not a property tax, but rather a franchise or business one."
Thus, following the cited cases, we hold that the tax imposed by chapter 82 of the Acts of the 45th General Assembly, Extra Session, is an excise tax, and, it necessarily follows that section 2, Article VIII, has no application. Before it can be said that the act does contravene the constitutional provision relative to taxation of corporations for pecuniary profit, it must appear clearly and definitely that said act imposes a property tax, that is, that income is property and that the tax is a tax on property.
III. Appellant claims that chapter 82 is in part a graduated income tax and a tax upon the acquiring of property, and is thereby lacking in uniformity and discriminates against appellant in that it violates section 1, Article I; section 6, Article I; section 30, Article III, of the Constitution of Iowa. *Page 612
Section 1, Article I, is as follows:
"All men are, by nature, free and equal, and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness."
Section 1 of Article I, and section 6 of Article I of the Constitution of Iowa contain practically the same guarantees found in the "due process" clause and "equal protection of the law" clause of the 14th Amendment of the Federal Constitution. This was well stated in McGuire v. Chicago, B. Q. Ry. Co.,131 Iowa 340, at page 348, 108 N.W. 902, 905, 33 L.R.A. (N.S.) 706, where this court said:
"Summing up their argument against the validity of the statute, counsel narrow the question to the proposition that it violates the fourteenth amendment to the Constitution of the United States, as well as the somewhat similar provisions found in our state Constitution. They say: `There are but two provisions of the Constitution of the United States relied upon by appellee in this case. These are found in the fourteenth amendment. The substance of these provisions is that no State shall pass any law that will deprive any person of the right of life, liberty, and property, or deprive any person of the equal protection of the law. There are two provisions in our State Constitution, substantially similar: Section 1, Article I (Code, p. 60), and Section 6, Article I (Code, p. 61).'"
[4] The legislature had the power to classify residents of this state for taxation under an income tax law, according to their income. There is nothing so discriminatory about such an act as would render it unconstitutional. True it is that every law which classifies for taxation is somewhat discriminatory, but that alone will not render it repugnant to a constitutional provision requiring uniformity. Before this court declares a statute unconstitutional on that ground it must be made to appear that the classification is so unreasonable and arbitrary that no state of facts can be assumed which will sustain it. Section 30 of Article II provides that the legislature shall not pass local or special laws in the instances therein set out.
In the case of State ex rel. Welsh v. Darling, 216 Iowa 553, at page 559, 246 N.W. 390, 393, 88 A.L.R. 218, we find: *Page 613
"If the act in question must be found to be special or local in character, it is because its application is presently and prospectively limited to the city of Des Moines. The enactment by the legislature of the chapter may possibly have been inspired by those primarily interested in the city of Des Moines. On this point we are not advised. There is nothing, however, in the character of the act itself indicating that the legislative intent was to so restrict its application. It is possible and perhaps probable that considerable time will necessarily intervene before any other city of this state, by the process of ordinary normal growth, will attain the prescribed population. If however and when they, do, the act by its very terms will at once become applicable thereto. No matter how many cities of this state shall attain the required population, all will come under the provisions of the act, and none will be excluded."
Justice De Graff, speaking for this court in the case of Iowa Motor Vehicle Assn. v. Board of Railroad Commissioners, 207 Iowa 461,221 N.W. 364, 367, 75 A.L.R. 1, cited the case of State ex rel. Budd v. Hancock, 66 N.J. Law, 133, 48 A. 1023, as follows:
"A law is special in a constitutional sense, when, by force of an inherent limitation, it arbitrarily separates some persons, places, or things from others, upon which, but for such limitation, it would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes that makes it special, but what it excludes. If nothing be excluded that should be contained, the law is general. Within this distinction between a special and a general law, the question in every case is whether any appropriate object is excluded to which the law, but for its limitations, would apply. If the only limitation contained in a law is a legitimate classification of its objects, it is a general law. Hence, if the object of a law have characteristics so distinct as reasonably to form, for the purpose legislated upon, a class by itself, the law is general, notwithstanding it operates upon a single object only; for a law is not general because it operates upon every person in the state, but because every person that can be brought within its predicament becomes subject to its operation."
And so in the case at bar, this law cannot be said to be a *Page 614
"local or special" law because all the persons will come within the classification of the law as their income reaches the amount provided in the law.
[5] IV. Appellant contends that chapter 82 is unconstitutional because it gives to the Board or its agents or representatives the right to examine the books, papers, records and memoranda of the taxpayer, and thereby violates section 8 of Article I of the Constitution of the State of Iowa, which is as follows:
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; * * *"
In looking at the act we find that there are provisions for an examination of the books and records of the taxpayer, and to require the attendance and testimony of witnesses for the purpose of ascertaining facts in connection with the income return. It further provides that:
"Where the Board finds the taxpayer has made a fraudulent return, the costs of said hearing shall be taxed to the taxpayer. In all other cases the costs shall be paid by the State."
And then provides for the manner in which testimony shall be taken.
This court in the case of Finn v. Winneshiek District Court,145 Iowa 157, at page 166, 123 N.W. 1066, 1069, said:
"The proceedings did not amount to an unreasonable `search and seizure' as those terms are used in the fundamental law. Protection is afforded by the Constitution against unreasonable searches and seizures of persons, houses, papers, and effects, but these provisions of the Constitution have no reference to regularly prescribed and orderly proceedings for obtaining testimony. As a rule, they have reference to criminal or quasi
criminal proceedings or to forfeitures of property. See Boyd v. U.S., 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746. Also the history of such provisions as given in Cooley's Constitutional Limitations (6th Ed.) 364-365, et seq. The taking of testimony for a civil case, in an orderly and regular way, does not amount to a search or a seizure within the meaning of these limitations. Robinson v. Richardson, 13 Gray 454; State v. Slamon,73 Vt. 212, 50 A. 1097, 87 Am. St. Rep. 711; In re Chapman, *Page 615 166 U.S. 661, 17 S. Ct. 677, 41 L. Ed. 1154. We are well satisfied that no constitutional right of the plaintiff has been violated by the orders made."
In the case of Iowa Loan Trust Company v. District Court of Polk County, 149 Iowa 66, at page 71, 127 N.W. 1114, 1116, this court said:
"The constitutional guaranty against unreasonable searches and seizures is not in our judgment violated by the order. Nor will it be by an execution thereof. The provisions of the Constitution have no reference to regularly prescribed and statutory methods for obtaining evidence, and the acquiring of evidence in the statutory manner to be used in a case is not a search or seizure within the meaning of the Constitution. Cooley's Constitutional Limitations, 364; Robinson v. Richardson, 13 Gray 454; In re Chapman, 166 U.S. 661, 17 Sup. Ct. 677, 41 L. Ed. 1154; Finn v. District Court, supra."
The appellant calls our attention to the case of State v. Tonn, reported in 195 Iowa 94, 191 N.W. 530, and especially to the dissenting opinion of the late Justice Weaver. The writer of this opinion does not hesitate to say that if he had been a member of the court at the time that the opinion in State v. Tonn was filed he would have joined in the dissenting opinion; yes, in even stronger language than the dissenting judge used would he have objected to the opinion in that case. However, the case at bar is not similar to the case of State v. Tonn, for, in that case and under that opinion an officer had a right, this court said, to go into a home or the office of any business man, ransack private papers and take away with him such as he chose to take.
The statute under discussion in the case at bar prescribes what the board can do. It simply provides for a hearing in an orderly manner, at which the taxpayer has a right to be present.
[6] V. It is claimed that chapter 82 provides for the taking of private property, for private use, under the guise of taxation, and therefore is in violation of section 9 of Article I of the Constitution of the State of Iowa, which is as follows:
"* * * but no person shall be deprived of life, liberty, or property, without due process of law."
An examination of the income tax law shows that the following is the procedure: *Page 616
(1) The taxpayer files his return.
(2) The return is examined by the board or person in its employ.
(3) If the board discovers that a complete return has not been made, it determines the correct amount of tax together with interest and 5% penalty.
(4) The statute requires that notice of additional assessment be given to the taxpayer.
(5) Section 24 then provides that the taxpayer may apply for a revision of the tax, interest and/or penalties at any time within 90 days from the date he receives notice of additional assessment. It is mandatory that the board grant the hearing.
(6) The board shall notify the taxpayer by registered mail of its findings and shall refund to the taxpayer any amount paid in excess of the amount found to be due.
(7) The taxpayer may appeal to the District court of the county in which he resides, or in which his principal place of business is located, within 60 days after receiving the notice.
(8) After the determination in the district court he may appeal to the supreme court as provided in other cases.
(9) Section 26 provides for jeopardy assessment, but the assessment is not final until a hearing is had.
(10) A lien may be filed by the State, but if it is filed during the time an appeal is pending it must be released after either the board or the court determines that the tax claimed under the additional assessment is not due, providing however the correct amount of tax has been paid.
We do not find in this procedure anything that robs the appellant of due process of law. The board, before it makes the assessment final must give the taxpayer notice and an opportunity to be heard. In the case at bar, this record shows, notice was given to the appellant.
[7] VI. It is next contended that chapter 82 provides for the unlawful and unconstitutional delegation of legislative power to the Iowa State Board of Assessment and Review, in violation of section 1 of Article III of the Constitution of the State of Iowa, which is as follows:
"The legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of *Page 617
Representatives; and the style of every law shall be, `Be it enacted by the General Assembly of the State of Iowa.'"
The provision placed in the Constitution by the framers, conferring upon the legislature the power to make the laws, has been consistently interpreted by the courts as denying to the legislature the right to delegate that power to any other body or authority, and the legislature cannot relieve itself of this responsibility by attempting to pass it on to some other body. The legislature is composed of the chosen representatives of the people, and in that body is placed the sole law-making power by the people.
Probably one of the most important cases which has been decided by this court is the case of Hubbell v. Higgins, 148 Iowa 36, where at pages 43-4-5, 126 N.W. 914, 917, Ann. Cas. 1912B, 822, the late Justice Evans, speaking for the court, said:
"It is next argued that the act in question confers upon the hotel inspector legislative powers. This contention is based upon certain general provisions contained in the statute which call for the exercise of judgment on the part of the hotel `inspector. By its terms such act is not applicable to hotels of `approved fireproof construction.' It is argued that this expression is not known to the trade, and therefore that it can mean nothing except that the hotel inspector may arbitrarily approve or disapprove a given hotel as being of `fireproof construction' or otherwise. The act also provides that `approved sanitary conditions' shall be maintained, and that cesspools and privies shall be properly cleaned and disinfected as often as necessary to maintain them in such sanitary condition. It is argued that the inspector may arbitrarily determine whether a hotel is thus maintained in a sanitary condition or not, and that the statute contains no definition which will protect the hotel keeper against such arbitrary conduct. Other analogous provisions of the act are presented to our attention which provide opportunities, as is claimed, to the inspector to act arbitrarily and oppressively. It may be noted first that these very provisions which are thus arrayed as fatal defects in the law were manifestly intended to give the law flexibility and to make it less technical and less onerous to the hotel keeper. The ultimate purpose and final object of the law is clearly set forth. This object may be attained by the hotel keeper by the specific methods pointed out in the statute, or by *Page 618
such other methods as the hotel keeper may choose, provided he attain the result. The fallacy in the argument at this point is the assumption that the hotel inspector may arbitrarily, in a given case, find the facts to be otherwise than as they truly are. The inspector is himself amenable to the law and can proceed only under the law and in accordance with the facts as they shall be. The power of the inspector in such a case has been set forth by the Supreme Court of Massachusetts in this wise: `The power to make rules and regulations in the nature of subsidiary legislation may be delegated by the Legislature to a local board or commission; such rules being subject to be tested in the courts to determine whether they reasonably are directed to the accomplishment of the lawful purpose of the statute under which they were made.' Welch v. Swasey, 193 Mass. 364 [79 N.E. 745, 118 Am. St. Rep. 523, 23 L.R.A. (N.S.) 1160].
"The act under consideration does not purport to confer upon the inspector any arbitrary power. It does require him to determine in given cases whether a hotel is of `fireproof construction.' If `yea,' it is an approved fireproof construction within the meaning of the statute. If `nay,' then otherwise. But this would not empower the inspector to say arbitrarily that a given hotel was not of `fireproof construction' when in truth it was of such fireproof construction. Nor have we any doubt but that such an attempted act on the part of the inspector could be called in question by any aggrieved party by proper action in court. And the same may be said concerning the other analogous features of the act which we have already referred to."
In Hildreth v. Crawford, 65 Iowa 339, at page 343, 21 N.W. 667,669, we find the following:
"The plaintiff insists that `the creation of a board of officers, with legislative and judicial powers, is not only wholly foreign to the subject of the act, as indicated by its title, but is void as an attempt to delegate powers which the constitution vests only in the legislature.' (1) The act regulates the practice of pharmacy by declaring the conditions upon which it shall be practiced, and the class of persons thereto empowered. It contains many regulations, which are readily discovered upon reading the statute. It is obvious that these regulations can be applied and enforced only by officers duly authorized by law. The commissioners are such officers. (2) There are no legislative powers intrusted *Page 619
to the commissioners; they can neither make nor unmake a single provision of law. They are charged with the administration of the law, and with no other powers. (3) While in the administration of the law they are intrusted with certain quasi judicial powers, they possess none except those of the class which the law confers upon ministerial and executive officers. They exercise discretion which may be quasi judicial, just as all officers do. The by-laws and regulations which they are authorized to make pertain to the lawful discharge of the duties imposed upon them. They do not pertain to the rights or liabilities of other persons."
The appellant has cited and relies mainly on the case of Goodlove v. Logan, 217 Iowa 98, 251 N.W. 39, but there is nothing in that opinion that would prohibit the legislature from authorizing the board or commission, or officer, to make investigations and determine when a person or class comes within the operation of the law. Nor does it prohibit the legislature from authorizing a board or commission to adopt rules or regulations for the proper administration of the law, so long as those rules do not take the form of laws themselves, or encroach upon the duties of the legislature.
Section 53 of the act is as follows:
"The board shall have the power and authority to prescribe all rules and regulations not inconsistent with the provisions of this act, necessary and advisable for its detailed administration and to effectuate its purposes."
The legislature did not delegate its power, but merely authorized the board to adopt rules and regulations not inconsistent with the provisions of the act, for the purpose of administering the act. The rates are fixed by the legislature, the board merely determines when an individual comes within the classes prescribed by the legislature as being taxable under said rates.
VII. Appellant complains that the act is unduly burdensome, discouraging and unfair; that it handicaps the energetic, industrious and progressive in his race with the indifferent and idle; that it penalizes the successful business man by making him pay a higher rate on a graduated scale on his income, and thus discourages enterprises employing labor, drives capital into tax-exempt bonds, increases the unemployment burden upon *Page 620
public funds; that it gives special advantage to the farmer, due to the fact that the per capita current income of farmers is considerably lower than that of the nonfarm population; a substantial portion of the farmer's income is received in non-cash items which are consumed by the farmer's family and therefore not reported as taxable income; that the income tax in Iowa is one of the highest levied by any state in the Union, and that many states in the Union do not have income tax laws and their citizens, altho receiving Iowa-earned income, escape all state income taxes.
Much of this argument might be effective before the legislature, but this court is not interested in the question of whether the income tax law, from the standpoint of public policy, is a good or bad thing for the people of this state. To be able to find fault with the law is not to demonstrate its invalidity. Courts do not make the laws; the legislature is charged with that duty and responsibility, and if in its judgment the income tax is an advisable means of raising taxes to carry on the various functions of government, this court will not undertake to say whether or not that judgment was founded upon a sane basis. This court is interested only in the question of whether the passage of this act was in conflict with the Constitution of this state and of the nation.
Careful consideration of the various and many propositions ably argued by appellant's counsel convinces us that the legislature had the right to pass the act. Upon the whole record we find the lower court was right in dismissing appellant's petition.
It necessarily follows that its judgment must be, and it is hereby, affirmed. — Affirmed.
Chief Justice and all Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431155/ | There is presented on this appeal but one fundamental question, and that is whether the claimant-appellee's injury arose in the course of his employment with appellant The Certain-teed Products Company. While thus employed, the claimant, who 1. MASTER AND worked in the capacity of chief engineer, was SERVANT: injured, April 23, 1929, when moving an electric Workmen's motor "from the first to the second floor" of a Compensation building belonging to the employer. The motor Act: needed repairs, and in order to make them, the employee claimant and his helper *Page 1006
injured were transporting it from the first to the while in second floor, as above stated. In so doing, prohibited these men loaded the motor on a truck, and then place. moved the same onto an elevator "located in the central part of" the building. Thereupon, contrary to the employer's instructions, the claimant and his helper got upon the elevator, and started upward to the electric shop on the second floor. When arriving at the proper floor, claimant, in attempting to stop the elevator, injured his right hand, as it came in contact with the "cable and sheave wheel of the elevator." Hence he now makes claim against the employer for compensation, under Chapter 70, Title V, of the 1927 Code.
Before and at the time of the injury, the appellant American Mutual Liability Insurance Company carried the compensation insurance for the employer. It is claimed by the insurer and the employer that the accident in question did not arise in the course of the employment, because the claimant, at the time thereof, was not doing what a man so employed "might reasonably do;" nor was he at a place where he "might reasonably be," under his contract of employment. This conclusion by the employer and the insurer is based upon the thought that the claimant had been warned not to ride, and was prohibited from riding, upon the elevator. A suitable stairway was available for claimant's use, and he could start the elevator from the outside, and it would automatically stop itself at the proper floor. Furthermore, it is said by the employer and the insurer that no necessity existed for disobeying the foregoing rule of employment.
Upon the consideration of this controversy by the state industrial commissioner, he made at least seven 2. MASTER AND findings of fact. These findings were not SERVANT: itemized by the commissioner. For convenience, Workmen's the employer has segregated and itemized those Compensation findings of the commissioner's. Chronologically Act: stated, in the language of the employer, the findings of commissioner's findings are as follows: facts by commis- sioner: conclusive- ness.
"First: In riding on the elevator at the time he sustained said injury, the claimant conspicuously violated a rule of his employer, prohibiting all persons from riding on said elevator.
"Second: Prior to sustaining said injury, the claimant had observed the warning placards prohibiting all persons to *Page 1007
ride on said elevator, and he knew it was against the rule of his employer for him to ride on said elevator.
"Third: Said rule prohibiting the claimant and all persons to ride on said elevator was well observed for years, and consistently enforced.
"Fourth: The claimant arbitrarily and unjustifiably violated the orders of his employer in riding in said elevator on the occasion when he was injured.
"Fifth: The time saved by riding the elevator instead of going up the stairs was so slight as not to justify the claimant's arbitrary conduct in violating said orders of his employer.
"Sixth: The motor could have been made secure on the truck, and it was not reasonable nor necessary for the claimant to violate said rule of his employer by accompanying the motor up the elevator to keep it in place.
"Seventh: The claimant's injury did not arise in the course of his employment."
Although the industrial commissioner made the foregoing findings of fact, the claimant contends that the district court had the right to review the same because there was no conflict in the evidence before the industrial commissioner. Without such conflict, the claimant urges, the courts are not bound by the industrial commissioner's conclusion.
Claimant's theory of the case is that he was doing the employer's work, and used the elevator in order to keep the motor from upsetting, there being no convenient way of fastening the same to the truck and the elevator platform. Haste was necessary, claimant maintains, in order to repair the motor, so that it could be installed in running order not later than 7 o'clock P.M. So, the claimant concludes, his action in the premises, even if wrongful, amounted only to contributory negligence, and therefore is no bar to his recovery of compensation.
I. Under the circumstances, did the district court properly say that the injury to claimant arose in the course of his employment? That is the question. If the injury did not arise in the course of the claimant's employment, compensation cannot be allowed. Section 1377 of the 1927 Code; Jones v. Eppley HotelsCo., 208 Iowa 1281; Sparks v. Consolidated Ind. Coal Co.,195 Iowa 334.
The burden of proof is upon the claimant to show that his *Page 1008
injury did arise in the course of his employment. Jones v. EppleyHotels Co. (208 Iowa 1281), supra; Griffith v. Cole Bros.,183 Iowa 415; Norman v. City of Chariton, 206 Iowa 790. Such are the essential prerequisites underlying claimant's right of recovery. Who is to determine those essentials? Manifestly, under the Iowa statutes, it is for the industrial commissioner to say whether the claimant has carried the burden thus cast upon him.
"The duty of determining where the preponderance of evidence lies, under the records in cases of this kind, is the task imposed by statute upon the state industrial commissioner. If there is no fraud, and that official acts with power, and not in excess thereof, and his findings support the order and decree, it cannot be interfered with on appeal to the district court unless `there is not sufficient competent evidence in the record to warrant the making of the order or decision.' Section 1453, 1927 Code; Flint v. City of Eldon (191 Iowa 845), supra; Hinrichs v.Davenport Locomotive Works, 203 Iowa 1395." Jones v. EppleyHotels Co. (208 Iowa 1281), supra.
While acting within the limits of his jurisdiction, the industrial commissioner cannot be interfered with by the district court or this tribunal. See authorities above cited. Interference by the courts with the state industrial commissioner under those circumstances amounts to the usurpation of power. Flint v. Cityof Eldon, 191 Iowa 845; Jones v. Eppley Hotels Co. (208 Iowa 1281), supra. On the other hand, if there are not sufficient facts in the record to support the findings of the industrial commissioner, the courts may review and set aside his action. Section 1453 of the 1927 Code; Rish v. Iowa Portland Cement Co.,186 Iowa 443; Reid v. Automatic Elec. Wash. Co., 189 Iowa 964;Guthrie v. Iowa Gas Elec. Co., 200 Iowa 150. Obviously, the absence of a conflict in the evidence is not enough to give the courts jurisdiction in the premises. Perhaps a given record might not contain conflicting evidence, yet the proof, although one-sided, may be amply sufficient to support the commissioner's finding. Consequently, claimant has not met the requirements to set aside the commissioner's finding by merely alleging that there is no conflict in the evidence. No doubt some of the items contained in the court's finding are without material conflict, *Page 1009
yet others of them are in dispute, under the evidence disclosed by the record. Those items concerning which there is no dispute in the evidence are, nevertheless, fully sustained by the record. As a result, the commissioner had before him substantial evidence upon which to base his findings, and consequently, under those circumstances, that official's conclusions are binding on the courts. Norton v. Day Coal Co., 192 Iowa 160; Sparks v.Consolidated Ind. Coal Co. (195 Iowa 334), supra; Heinen v. MotorInn Corp., 202 Iowa 67; Hinrichs v. Davenport Locomotive Works,203 Iowa 1395; Herbig v. Walton Auto Co., 191 Iowa 394; Flint v.City of Eldon (191 Iowa 845), supra. Not only is the commissioner's finding aided by the direct evidence in the record, but the same may find support from reasonable inferences drawn therefrom. See cases last above cited.
Tested by the foregoing standards, a review of the record will now be made, in order to determine that the commissioner's findings have support in the evidence. In so doing, it will elucidate to consider the items of such finding as chronologically stated above. Conforming to the order previously given, then, those findings are:
First: "In riding on the elevator at the time he sustained said injury, the claimant conspicuously violated a rule of his employer prohibiting all persons from riding on said elevator." Regarding his knowledge of the employer's rule, the claimant himself testified:
"Both at the top and the bottom of this elevator there were signs reading: `Warning: All persons forbidden to ride on elevator.' Exhibit D is one of these signs. * * * These signs are 16 by 21 inches, and the letters in the word `warning' are 3 inches high; the word `all' is 1 1/2 inches high; and the other letters are about an inch high. These signs had been posted at the top and bottom of this elevator about a year before I was injured, and I had seen these signs many times before I was injured. At the time we took this generator up, I knew those signs were there, and I had seen them many times."
Claimant also said:
"It was my understanding that the sign `prohibiting all men from riding on this elevator' meant everyone, and did not apply merely to the men under my supervision." *Page 1010
Again, claimant declared:
"Prior to this accident, I had attended safety meetings of the employees and bosses of the Certain-teed Products Company where safety programs were discussed."
Finally, claimant admitted:
"I knew I was not supposed to ride on this elevator, and I had read the signs prohibiting the men from doing it."
Moreover, it appears from the record that claimant had never ridden on the elevator but once before, and his employer did not know of that. None of the other employees had ever ridden on the elevator, so far as claimant knew. The purpose of this elevator was to hoist "raw materials." An executive of the employer corporation stated:
"Outside of the occasion when [claimant] was injured, I have not known of any employee or anybody else using that elevator to transport themselves up or down * * * except one man [other than appellant]. When they first installed the elevator, in 1920 or 1921, this one man got on the elevator. We then had signs up there, and everybody had been told not to ride. I came along and saw this man [the one who rode other than appellant] riding on the elevator, and I stopped him, and brought him back down, and told him to walk up, — take the stairway. Had he persisted in using the elevator, the chances are, he would have been discharged. So all of the 15 years I have been connected with this plant, the rule prohibiting the men or anybody else from riding on this elevator had been rigidly enforced."
This elevator was so constructed that materials could be placed upon it and then moved upward and downward, without the necessity of the operator's riding on the elevator. That performance was convenient and expedient. With all that record before him, the industrial commissioner had ample support for his finding that the claimant violated the employer's rule against riding on the elevator.
Second: The industrial commissioner found that, "prior to sustaining the injury, the claimant had observed the warning placards prohibiting all persons to ride on said elevator, and *Page 1011
he knew it was against the rule of his employer for him to ride on said elevator." A reference to the foregoing testimony is sufficient to convince the reader that there was support for the industrial commissioner's finding in this regard.
Third: "Said rule prohibiting the claimant and all persons to ride on said elevator was well observed for years, and consistently enforced." To repeat here the foregoing evidence would unnecessarily lengthen this opinion. By referring to the evidence set forth under ruling Number One, it becomes apparent that the third ruling has sufficient support.
Fourth: "The claimant arbitrarily and unjustifiably violated the orders of his employer in riding in said elevator on the occasion when he was injured." Without going on the elevator, its operation could be accomplished by the men while standing on the floor. Upon many previous occasions, electric motors had been carried up and down in the elevator, without a man accompanying them. As an excuse for violating the employer's rules against riding on the elevator, claimant's helper testified:
"The chief reason why we [the helper and the claimant] didn't go up the stairs, instead of accompanying this generator up the elevator, is that we wanted to get through, so there would be no delay in starting the mill."
At the time this decision was made by the claimant and his helper, it was about 3 o'clock in the afternoon, and, under the record, the mill was not to be started until 7 o'clock that night. According to the evidence, the work to be done upon the generator was not such as to require much time. From the one floor to the other was a stairway, constructed for the use of the employer's men, including the claimant. Apparently claimant could have placed the generator on the elevator platform, stepped back onto the mill floor, started the elevator from the outside, walked up the stairs, and arrived at the elevator door about the time, or at least soon after, the elevator automatically went from one floor to the other.
Again, it is said by the claimant that he rode upon the elevator because he feared that the motor might "tip" if he were not there to hold it in place. Contrary to this contention, it appears that the generator weighed from 400 to 600 pounds. *Page 1012
It was a compact unit, 18 inches square; hence would not have a tendency to tip. Also, it appears that around the edges of the elevator platform, and fastened thereto, was "a piece of sheet iron, standing up 6 or 8 inches." Against that sheet iron the wheels of the truck were placed, and thereby prevented from running off the elevator. Said truck was the kind used in flour mills, and it had two wheels on the front and two iron legs in the rear. Then, when the truck was "set down," the weight rested on the two legs and the two wheels. No necessity appears for the claimant and his helper to accompany the truck on the elevator. Upon many previous occasions, generators were taken up the elevator on the truck without such accompaniment. Too, the claimant and his helper could have fastened the truck handles to the elevator by chain or wire, and inconvenience was given as the reason for not doing so.
Therefore, the industrial commissioner could properly draw the inference from the foregoing record that the claimant's action was arbitrary and unjustifiable.
Fifth: "The time saved by riding the elevator instead of going up the stairs was so slight as not to justify the claimant's arbitrary conduct in violating said orders of his employer." Sufficient support for this finding may be found in the recitation of facts under Finding Four, above set forth.
Sixth: "The motor could have been made secure on the truck, and it was not reasonable nor necessary for the claimant to violate said rule of his employer by accompanying the motor up the elevator to keep it in place." To repeat at this juncture a part of the record previously given, it appears that machinery was constantly taken upon the elevator without anyone accompanying it. Included among the machinery thus transported were electric motors, which moved both up and down on the elevator. So, too, electric generators were carried up and down the elevator, and they did not tip off the elevator so as to indicate the necessity of an accompanying employee.
Likewise, additional support for this finding may be found in the evidence set forth in Finding Four and the inferences legally to be drawn therefrom. Clearly, those facts and circumstances, together with the legal inferences to be drawn therefrom, are sufficient to support the commissioner's six findings above catalogued. *Page 1013
There remains, however, the question whether or not the foregoing findings and the record involved are sufficient to support the court's finding Number Seven, to wit: "The claimant's injury did not arise in the course of his employment." An answer to that question involves the recognition of the primary elements in the phrase "in the course of employment." Time and place of employment are fundamentally embraced in the phrase "in the course of the employment."
"`* * * an accident arises "in the course of the employment" if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.'"Christensen v. Hauff Bros., 193 Iowa 1084, 1089.
"The test seems to be whether deceased * * * was doing what `a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.'" Griffith v. Cole Bros., 183 Iowa 415, on pages 425 and 426.
In Pace v. Appanoose County, 184 Iowa 498, on page 505, we approved the holding in the Griffith case, supra, by the use of the following language:
"The test in determining whether the injury has arisen in the course of employment is there [in the Griffith case] said to be `whether deceased * * * was doing what "a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time."'"
Beyond peradventure of a doubt, the claimant in the case at bar was not in a place where, under his contract of employment, he could "reasonably be." Claimant was forbidden by his employer to be upon the moving elevator. The prohibition contained no exceptions, and was at all times rigidly enforced. Such prohibition became a part of the contract of employment existing between the claimant and the employer. Within the purview of that contract, claimant was not to be upon the elevator when the same was in motion. Because he violated the aforesaid prohibition, claimant received his injuries. This violation amounted to unjustifiable and arbitrary conduct on his part. *Page 1014
Thus, when riding upon the elevator, the claimant was doing that which, under the, contract, he "may not reasonably do, and" he was not at a place "where one so employed may reasonably be." Wherefore, the injury did not arise "in the course of the claimant's employment." Christensen v. Hauff Bros. (193 Iowa 1084), supra; Hibberd v. Hughey, 110 Neb. 744 (194 N.W. 859);Fournier's Case, 120 Me. 236 (113 A. 270); Schelf v. Kishpaugh,
37 N.J.L.J. 173 (note in 9 N.C.C.A. 653); Reimers v. Proctor Pub.Co., 85 N.J. Law 441 (89 A. 931); Northern Illinois L. T. Co.v. Industrial Board, 279 Ill. 565 (117 N.E. 95); Lumaghi Coal Co.v. Industrial Commission, 318 Ill. 151 (149 N.E. 11); Gacesa v.Consumers Power Co., 220 Mich. 338 (190 N.W. 279); Smith v.Corson, 87 N.J. Law 118 (93 A. 112); Brusster v. IndustrialAcc. Comm., 35 Cal. App. 81 (169 P. 258); Shoffler v. LehighValley Coal Co., 290 Pa. St. 480 (139 A. 192). Quoted excerpts from some of the foregoing opinions will elucidate the discussion. While considering this subject, our court, inChristensen v. Hauff Bros. (193 Iowa 1084), supra, on page 1090, stated:
"No question of willful misconduct [or negligence] arises in the case. The sole question in the case is whether the accident and consequent injury arose out of and in the course of the workman's employment."
Continuing at the bottom of page 1091, we declared:
"In other words, if, upon consideration of all the circumstances, there existed causal connection between the conditions under which Christensen's work was required to be performed and the resulting injury, it could then be said that he was, at the instant of the injury, within the scope of his employment. If the conclusion may be logically reached that the workman's injury followed as a natural incident of his work, and was reasonably contemplated in his employment, then it may be said to have arisen out of the employment. But we think such conclusion not reasonably possible. We think it could not have been contemplated in this relationship of employer and workman, disclosed by the facts and circumstances in this case, that Christensen would do the hazardous and rash act which he did.There was nothing in his engagement requiring such an act." (The italics are ours). *Page 1015
Subsequent to the foregoing, we further stated, on page 1092 of the opinion:
"This employee could not recover for his injuries from the shipper, because there was no occasion arising out of his employment for his being on top of the box car, and his injury would have no causal connection with his employment."
It was said by the Nebraska Supreme Court in Hibberd v. Hughey
(110 Neb. 744 [194 N.W. 859]), supra, on page 862:
"It may be conceded that, if the command of the master had been without any restriction as to the place where the desired operation was to be performed, and claimant had acted as he did, his act might be considered as within the scope and course of his employment, and the only question would be whether he was guilty of willful negligence; for in such case the servant would be invested with a reasonable discretion in the selection of the precise place at which the particular service might best be performed; but where the place is designated, or a certain placeforbidden, the servant has no discretion [the italics are ours]. * * * Compensation is not denied merely as a penalty for disobedience of the order, but because the servant has put himself in a place which the master has not provided, and, therefore, an injury occurring at and growing out of defects of that place cannot be said to arise out of or in the course of the employment."
Upon this subject, the Supreme Court of Maine, in Fournier'sCase (120 Me. 236 [113 A. 270]), supra, concluded:
"Here lies the real test. The phrase `in the course of the employment' is too frequently lost sight of, and is seldom discussed. It is often clear that the accident did not `arise out of' because it did not occur `in the course of,' but only the former reason is assigned for the decision. One is just as essential a condition of the right to compensation as the other. If an accident does not occur `in the course of,' it cannot `arise out of,' the employment. In this particular class of claims the determining factor is, we think, whether the accident occurred in the course of the employment. To discuss spheres of employment and rules of conduct only obscures the real issue. The words `in the course of the employment' relate to the time, place, *Page 1016
and circumstances under which the accident takes place. An accident arises in the course of the employment when it occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. * * * If, then, the employee is in a place where he is prohibited from being by positive orders of his employer by reason of the danger, or has taken a certain course in going from one place to another which he is prohibited from taking by his employer for the same reason, notwithstanding it is within the period of his employment, and his purpose in going to the other place is to perform some of his duties he is engaged to perform, he cannot be said, while in the forbidden place [the italics are ours], or while going by the forbidden route or means, to be acting in the course of his employment, within the meaning of the Compensation Act, because he is not in a place where he reasonably may be in the performance of any of his duties."
Further quotation is not necessary.
Plainly, under the record, the industrial commissioner's findings had ample support in the record, and the district court did not have a right to set them aside.
II. But the claimant argues that his action in the premises amounted to no more than negligence, and that 3. MASTER AND compensation may be allowed under the law, SERVANT: regardless thereof. The only bars to recovery Workmen's under the Compensation Act, claimant urges, are: Compensation First, the willful intention of the employee to Act: working injure himself, or the willful intention on his in prohibi- part to injure another; and second, the ted place: employee's intoxication, which is the proximate effect. cause of his injury.
There is no contention at this place that the claimant was intoxicated, or that he intended to injure himself or another when riding on the elevator. Hence, the claimant declares that his action, at most, amounted to negligence, and that, under the Compensation Act, is not a bar to his recovery. Similar arguments were made in many of the cases above cited. A sufficient answer to claimant's proposition is that he, at the time of his injury, was acting outside of his employment, because the moving elevator was not a place where he might reasonably be. Also, *Page 1017
when the claimant was riding on the elevator, he was not doing what a man "so employed" might reasonably do. Those distinguishing features raise the claimant out of the realm of ordinary negligence, and place him in a position where his alleged injury did not arise in the course of his employment. Forsooth, claimant took himself out of the course "of his employment" by stepping into a place forbidden by the master and not contemplated by the employment contract. Consideration was given to this subject by this court in Christensen v. Hauff Bros.
(193 Iowa 1084), supra, on page 1090:
"That the workman was negligent, even grossly negligent, and acted in flagrant disregard of his bodily safety, is readily apparent. But freedom from negligence is not required to be shown in behalf of the workman, and negligence of a workman is not a defense under the act. To defeat recovery, it must `appear that such negligence was willful, and with intent to cause injury; or the result of intoxication on the part of the injured party.' No question of willful misconduct arises in the case. The sole question in the case is whether the accident and consequent injury arose out of and in the course of the workman's employment."
Then the court continued to hold that Christensen was not entitled to compensation because his injury occurred while he was doing what a man so employed may not reasonably do, at a place where he might reasonably be. Claiming that they contain a contrary holding, the claimant cites Eugene Dietzen Co. v.Industrial Board of Illinois, 279 Ill. 11 (116 N.E. 684); In reClaim of Macechko v. Bowen Mfg. Co., 179 A.D. 573
(166 N.Y. Supp. 822); Decatur R. L. Co. v. Industrial Board, 276 Ill. 472
(114 N.E. 915); State ex rel. Storm v. Hought, 56 N.D. 663
(219 N.W. 213). Those authorities, with the exception of the Hought
case, very largely, if not entirely, sustain the rule above announced. During some of the discussion in the cited cases, there seems to be confusion between the terms "growing out of" and "arising in the course of." In the Hought case, the North Dakota Supreme Court reached a conclusion somewhat contrary to that announced by us in the case at bar. Much of the discussion, however, is consistent with what we have said, and the conclusion in that case was brought about *Page 1018
by following some of the earlier authorities, which confused the terms "growing out of" and "arising in the course of."
While intoxication and willful intent to injure are statutory bars for the recovery of compensation, likewise it is a statutory essential that the injury must arise in the course of the employment, in order to justify compensation. As shown by the many authorities of this and other courts, an employee is not within the course of his employment if he is "not doing what a man so employed might reasonably do, or not at a place where he might reasonably be." Not only was the claimant in the case before us prohibited from being on the elevator while the same was in motion, but, in fact, his contract contemplated that he should not work there under that condition.
Clearly, then, a distinction appears between the facts and circumstances here presented and an ordinary case of negligence.
III. Nevertheless, the claimant contends that, at the time of his injury, he was serving his master's interests and doing what he was employed to do, but in a prohibitive manner. Because thereof, the claimant maintains that his act and conduct, at most, amounted to negligence, and could not bar a recovery.
What has been said in the division above disposes of this contention. Unquestionably, claimant, when riding upon the elevator in violation of the employer's instructions, was not serving the latter under the contract of employment. The claimant's action in riding on the moving elevator was unnecessary, unreasonable, and unjustified, as shown by the record under Division I. In fact, his conduct in that regard was arbitrary, and outside of the terms contemplated by the contract of employment.
Resultantly, the injury did not arise in the course of his employment, as before indicated. We do not decide or indicate what our holding might be, were the employee's violations limited to some rule or regulation which did not amount to a prohibition and become a part of the employment contract.
Because of the reasons above assigned, the judgment of the district court should be, and hereby is, reversed. — Reversed.
MORLING, C.J., and EVANS, FAVILLE, and GRIMM, JJ., concur. *Page 1019 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431156/ | On or about November 26, 1926, Nona Harden O'Brien, appellant herein, obtained a decree of divorce in an action against John Edward O'Brien, in which she obtained custody of three minor children, and an order directing said O'Brien, the defendant, to pay the clerk of the district court of Wapello County the sum of $35 per month for the support of said minor children. The decree of divorce and order for alimony provides more specifically as follows:
"It is * * * ordered, adjudged and decreed that the plaintiff be, and * * * is hereby divorced from the defendant, * * * and * * * is hereby decreed to have the custody * * * of * * * three minor children * * *.
"It is further ordered, adjudged and decreed that the defendant * * * pay * * * the Clerk of the District Court of Wapello County, Iowa, on the 25th day of November, 1926, the sum of Thirty-five ($35.00) Dollars and * * * on the tenth day of each month thereafter the sum of Thirty-five ($35.00) Dollars for the support of said children, * * * said sums so paid shall be turned over by the Clerk * * * to the plaintiff to be expended * * * for such care, maintenance and support, and (judgment is herebyentered) the Clerk of this Court is authorized and directed toenter judgment in favor of the plaintiff and against the defendant for said sums so to become due at any time after thedefault in payment of same, and plaintiff shall be entitled to execution on said judgment when any installment or installments shall remain unpaid for a period of ten (10) days after the same shall have become due under the terms of this decree, and said judgment for * * * payments in default is hereby decreed to be a lien upon any interest the defendant may have or obtain in any real estate."
When the decree was originally presented to the court, the *Page 754
words "judgment is hereby entered", appearing therein were stricken out by the court, and the words in italics were inserted by the court.
The record shows that at the time said decree was entered on November 26, 1926, said John Edward O'Brien was the owner of certain real estate later levied upon by an execution issued under said decree as hereinafter stated.
The record also shows that the real estate so levied on was foreclosed by Alice O'Brien under two certain mortgages executed to her on January 9, and April 14, 1928, respectively, and that said real estate was sold under said foreclosure proceedings to said Alice O'Brien, who received a sheriff's deed therefor after the period of redemption had expired.
The record further shows that said Alice O'Brien died testate on December 23, 1934, devising said real estate to appellees, who are now the owners thereof.
On October 11, 1935, the clerk of the district court, at the request of appellant, issued an execution under said divorce decree, under which the sheriff levied upon said real estate for the purpose of recovering $3,120.
Thereafter, on October 15, 1935, this action was commenced by appellees against the appellant, Nona Harden O'Brien, for an injunction restraining her from levying upon or selling said real estate, upon the grounds that appellees are the absolute owners thereof, and that said decree is not and never has been a lien upon said real estate. Appellees, therefore, asked for and obtained a temporary writ of injunction restraining the sale of said real estate.
Appellant, in answer to said petition, alleges that said John Edward O'Brien was, on April 14, 1928, in default in the sum of $42.78 under the decree in the divorce case, and that the amount in default since that time has increased to $3,120, all of which constitutes a lien upon the real estate in question. Appellant also alleges that she was not made a party to the foreclosure proceedings referred to and is not bound thereby.
Appellant, therefore, filed a motion to dissolve the temporary injunction upon the grounds alleged in her answer, alleging that the decree in the divorce action became a vested lien upon the real estate in question.
On November 23, 1935, the motion to dissolve the temporary injunction was overruled by the court, and appellant appeals. *Page 755
The question presented is whether or not the provisions of the divorce decree in relation to payments for support of the children constitute a judgment in such a sense that execution could be issued upon it before a judgment as authorized by the court was entered by the clerk after said installments became delinquent, and whether said decree became a lien upon the property owned by the defendant, John Edward O'Brien, at the time the decree in the divorce action was entered. Appellant contends that such decree constitutes a final adjudication of the rights between the parties, and as such is a judgment which became a lien upon any property owned by the defendant when entered.
In support of this contention, appellant relies upon Taylor v. Runyon, 3 Iowa 474; Zeigler v. Vance, 3 Iowa 528; Walker v. Walker, 93 Iowa 643, 61 N.W. 930.
A careful examination of these cases, however, will disclose that the judgments entered therein were in fact final adjudications of the questions in litigation, because the exact amounts of the judgments therein rendered were set out and were specifically made a lien upon the defendant's real estate by the decree.
In Walker v. Walker, 93 Iowa 643, loc. cit. 647, 61 N.W. 930,932, strongly relied upon by appellant, this court said:
"It is said by appellee that the record entry is not a `judgment,' within the usual meaning of the word. * * * The record determines that the plaintiffs shall pay the defendant one thousand seven hundred dollars, with interest, and creates a lienon plaintiffs' land to secure its payment. * * * we do not see how the court could have more fully granted the relief prayed. The language of the record is: `It is further ordered, adjudged, and decreed that the said plaintiffs pay to the said defendant * * * seventeen hundred dollars,' making the same a lien, and concluding with the order that `said premises, * * *, be sold to satisfy said judgment, together with costs.' The record shows that an amount should be paid to satisfy a judgment. The record is certainly a final adjudication of the rights of the parties, and our law provides that `every final adjudication of the rights of the parties in an action is a judgment.'"
It is obvious that the language of the decree in that case specifically provides that the defendant shall pay an amount certain, which was specifically decreed to be a lien on defendant's *Page 756
land, and, therefore, clearly constitutes a final adjudication, and judgment.
Appellees contend, however, that in the present case, the court in the divorce decree simply ordered payment of monthly amounts to the clerk for the support of plaintiff's children, and ordered and authorized a judgment to be entered by the clerk after adefault in such payments by defendant; they also contend that such order does not constitute a final judgment until a computation of the payments in default has been made by the clerk and judgment entered by him thereafter, as ordered and directed by the court. The decree itself does not enter judgment, but specifically provides that the defendant pay certain monthly amounts to the clerk of the district court, and that "said sums so paid shall be turned over by the Clerk * * * to the plaintiff to be expended by her for such care, maintenance and support, and(judgment is hereby entered) the Clerk of this Court isauthorized and directed to enter judgment in favor of the plaintiff and against the defendant for said sums so to become due at any time after the default in payment of same, and plaintiff shall be entitled to execution on said judgment when any installment or installments shall remain unpaid for a period of ten (10) days after the same shall have become due * * *, and said judgment for said * * * payments in default is hereby decreed to be a lien upon any interest the defendant may have or obtain in any real estate.''
The judgment referred to in this action as being a lien is the judgment ordered to be entered by the clerk for payments indefault. Appellees contend that no judgment for any payments in default was ever entered by the clerk on the records of the court, and, therefore, does not constitute a lien upon defendant's land.
When the decree was originally presented to the court, it contained the words "judgment is hereby entered". These words, however, were stricken out by the court, and the following words by interlineation were inserted in lieu thereof by the court, viz: "the Clerk of this Court is authorized and directed to enter judgment * * * at any time after the default in payment of same," so that when the decree was finally signed as changed by the court, it contained the language hereinabove set out.
The fact that the court struck out the words that "judgment is hereby entered", contained in the decree as originally *Page 757
submitted, and inserted in lieu thereof the words that "the Clerk of this Court is authorized and directed to enter judgment * * * at any time after the default in payment" occurs, makes it definitely certain that the court did not enter judgment or intend to enter judgment for the monthly payments before they became due. This change conclusively shows that the court did not contemplate that a judgment be entered against the defendant until after default in the monthly payments occurred.
The record also shows that the clerk in that action never did enter judgment for any payments in default, before the execution was issued. As he never computed the amount of the defaulted payments or entered them upon the court records, there was no judgment in existence upon which an execution could issue.
The lower court, in overruling the motion to dissolve the injunction, said:
"From the pleadings and said decree, the court finds that decree relied upon by the defendant is not a judgment upon which an execution can be issued for the sale of any real estate owned by said John Edward O'Brien, at the date thereof, and that it is apparent from the form of the decree that the trial court intended and ordered that judgment should be entered against said John Edward O'Brien, upon his defaulting in the payments of alimony, and, as no judgment has been so entered, an execution should not have been issued. The Motion to dissolve said temporary injunction is therefore overruled."
Although the question involved is apparently not without difficulty, we believe it has been determined by this court in the case of Kennedy v. Bank, 119 Iowa 123, 93 N.W. 71, wherein an identical decree was held by this court not to be a final judgment. The court, in rendering the opinion in that case, speaking through Justice Weaver, said, 119 Iowa 123, loc. cit. 124, 93 N.W. 71:
"The trial court, after hearing the testimony, is shown to have `filed an order' stating in substance that it found the plaintiff entitled to the relief demanded * * *: `Wherefore it is considered, ordered, adjudged, and decreed that the plaintiff have and recover of the defendant the sum of $42.60, with * * * interest * * *, and defendant is directed to pay said amount into *Page 758
the hands of the Clerk of this court within sixty days * * * andin default of so doing the clerk is directed to enter judgmentfor same at the expiration of said sixty days, and to issueexecution for the same.'" (Italics ours.)
In that case it appeared that "at some later date * * * the clerk entered in the judgment docket * * * an abstract or memorandum as follows: `S.B. Kennedy vs. Citizen's National Bank. Amt. of judgment, $42.60. Costs, $18.10. Interest, six per cent.'"
This court in that case further said:
"This entry constitutes the only attempt by the clerk to enter any judgment pursuant to the order of the court. It has frequently been held that neither the mental conclusion of the judge presiding at a trial, nor the oral announcement of such conclusion, nor his written memorandum entered in his calendar, nor the abstract entered in the judgment docket constitutes a judgment, and a judgment cannot be said to be entered until it is spread by the clerk upon the record book. Case v. Plato, 54 Iowa 64,6 N.W. 128; Miller v. Wolf, 63 Iowa [233] 237, 18 N.W. 889; Towle v. Leacox, 59 Iowa 42, 12 N.W. 764; Rogers v. Morton,51 Iowa 709, 2 N.W. 262.
"A memorandum of judgment made by the judge is for the information and guidance of the clerk in making the proper entry, but until such entry is made there is nothing from which an appeal will lie. In other words, while in one sense a judgment is `rendered' when it is announced by the judge, yet until that judgment is entered of record there is no competent evidence of such rendition."
The record in this case shows without dispute that the clerk made no computations whatever of the unpaid installments, andentered no judgment for any amounts found delinquent as directedby the court.
It is our conclusion from the wording of the decree entered, that the court specifically provided that no judgment should be entered for the payments ordered, until after a default in making such payments occurred. This is shown by the language of the decree authorizing "the Clerk * * * to enter judgment * * * atany time after the default in payment of same," and that "plaintiff shall be entitled to execution on said judgment when *Page 759 any installment * * * shall remain unpaid for a period of ten(10) days after the same shall have become due."
Where no judgment for payments in default is ever entered on the records of the court by the clerk, there is no authority to issue an execution. Kennedy v. Bank, 119 Iowa 123, 93 N.W. 71; Seals v. Wright, 37 Iowa 171; Campbell v. Williams, 39 Iowa 646; Case v. Plato, 54 Iowa 64, 6 N.W. 128; Balm v. Nunn, 63 Iowa 641,19 N.W. 810; State v. Wieland, 217 Iowa 887, 251 N.W. 757.
From the decree entered, it is obvious that the court took express pains to provide that no judgment be entered against the defendant until after default in payments occurred.
It is our conclusion that this case is controlled by the ruling in Kennedy v. Bank, 119 Iowa 123, 93 N.W. 71, and under it we are impelled to hold that no final judgment was entered upon which an execution could issue.
For the reasons hereinabove expressed, we are constrained to hold that the decree of the lower court was right, and the same is, therefore, hereby affirmed. — Affirmed.
RICHARDS, C.J., and all Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431158/ | The statutory provisions involved in this case are all set out in Cook v. Hannah, 230 Iowa 249, 297 N.W. 262. The factual situation here is also similar to the one in that case. The distinction attempted to be made by appellant between that case and this will be referred to later.
Code section 7164 provides that the county auditor, in computing the tax rate for any taxing district (necessary to *Page 517
raise the amount required for the certified budget of that district "and no larger amount") shall take into account, and deduct from the total budget to be raised, the "tax to be derived from the moneys and credits and other moneyed capital taxed at a flat rate as provided in section 6985."
Appellant alleges that the county auditor of Polk county failed in the year 1934 to obey this mandate and that as a consequence a higher rate than necessary was levied, and excessive and illegal taxes were collected for that year from appellant's assignors.
We held in 1937 that such excessive taxes could be recovered (under authority of Code section 7235) and that mandamus was the proper remedy. Hewitt Sons v. Keller, 223 Iowa 1372,275 N.W. 94.
Chapter 250 of the Acts of the Forty-eighth General Assembly was thereafter enacted to legalize "all taxes levied, assessed, or collected wherein the county auditor in computing the tax rate" failed to take into account the amount to be derived from the tax on moneys and credits and other moneyed capital and failed to make the required deductions for the years 1934, 1935, 1936, and 1937. We have held this act constitutional. Cook v. Hannah, supra.
In the case just cited, plaintiff urged as one ground of unconstitutionality that the legalizing act was not of uniform operation throughout the state and that it therefore violated section 30, Article III of the State Constitution; also that it denied plaintiff's assignors the equal protection of the laws guaranteed by the Fourteenth Amendment to the Federal Constitution. He based this contention, not upon any language in the act itself, but upon the fact that in some counties the auditors had observed the requirement of section 7164 by deducting the moneys-and-credits tax, and upon the further fact that in some counties, where the auditor did not observe the requirement, refunds to some taxpayers had already been made. And it was argued that, therefore, the legalizing act in question, if upheld, would not and could not have uniform operation but would result in inequalities and discriminations as between the citizens of the various counties. *Page 518
This contention was rejected by the decision in that case upon the authorities therein cited and upon the considerations therein set forth. These need not be restated here.
Appellant now makes the same argument but attempts to distinguish between the case of Cook v. Hannah and this case. This constitutes the sole question to be determined in this case. His contention may be fairly and concisely stated by quotation from his brief:
"Under the facts presented in that case [referring to Cook v. Hannah], the alleged discrimination was between the taxpayers of the several counties, the taxpayers of some counties in which Section 7164 was strictly complied with, having been taxed under one plan of taxation, while the taxpayers of other counties, including Crawford County, had been taxed under a different plan, and upon a higher tax rate basis. There was no discrimination as between the taxpayers within Crawford County. While in Crawford County the tax rates were excessive, the excessive rates were applied alike, and in the same proportion against all of the taxpayers in Crawford County. It was contended in that case that the legislature cannot prescribe one plan of taxation or one basis for fixing tax rates in one group of counties, and a different plan of taxation or basis for fixing tax rates in another group of counties, and that the legislature, therefore, could not legalize the result existing where two different groups of counties employ two different methods in fixing tax rates, one lawful and the other unlawful."
And again:
"We now have presented the question of whether a county can levy one tax rate against one group of taxpayers within the county, and levy a different and higher rate against other taxpayers within the same county for the same county and municipal purposes."
We do not think the decision in Cook v. Hannah can be distinguished upon any such narrow ground. We are unable to see any difference in principle to justify such attempted distinction. Lack of uniformity between citizens of one county *Page 519
and citizens of another is not essentially different from lack of uniformity between citizens of one given county or between citizens of different taxing districts within a given county. If there is really lack of uniformity in operation, the fact that the victims are all in the same county can make no difference.
Appellant might with equal logic urge a similar distinction as to cases involving want of uniformity among citizens of different taxing districts in the same county. If the auditor in a given county failed to deduct the tax to be derived from moneys and credits in computing levies for the various taxing districts in his county, it is manifest that all taxpayers in his county would not be alike affected. In no two taxing districts would the amount which he failed to deduct on account of moneys and credits be the same.
By the same token, in no two taxing districts would the legalizing act in question operate to produce the same result. Citizens of one taxing district where the amount of moneys and credits was large would be affected in greater degree than would those in districts where moneys and credits were relatively small. When the argument is thus pressed to its logical extreme it becomes apparent that the attempted distinction is not sound.
The explanation is, that while the law operates uniformly in the constitutional sense, the results of its operation are not and cannot possibly be uniform. See the language of Chief Justice Cole in Von Phul v. Hammer, 29 Iowa 222, quoted by the opinion in Cook v. Hannah, 230 Iowa, at top of page 255, 297 N.W. 265. The constitution requires "uniform operation throughout the State,"
not uniformity of consequences resulting from such operation. Such lack of uniformity in result is due to the fact that the law applies to persons differently situated. The constitutionality of a statute cannot be made to depend upon the fact that some taxpayers have received refunds prior to the passage of the act while others have not. Therein lies the vice in appellant's argument. He states his proposition thus:
"When citizens identically situated, have been taxed disproportionately, there is a lack of uniformity in taxation, and a denial of the equal protection of the laws." *Page 520
The trouble is that the citizens are not "identically situated." Some are in districts where there are no moneys and credits or the amount of such property is relatively small or where some may have claimed and received refund of the excess payment before the legalizing act was passed. Others are in districts where the amount of money and credits is relatively great or where some have failed to recover the excess before the right of recovery was taken away. Nevertheless, the operation of the law is uniform.
As said in Cook v. Hannah at page 252 of 230 Iowa, page 264 of 297 N.W.:
"If the law operates upon every person within the relation or circumstances provided for in the act, the requirement of uniformity is met."
We have examined the authorities relied on by appellant. They do not apply to the situation here. In Iowa-Des Moines Nat. Bk. v. Bennett, 284 U.S. 239, 52 S. Ct. 133, 76 L. Ed. 265, the plaintiff banks complained that the taxing officers exacted from them taxes on shares of stock at rates higher than were exacted of competing moneyed capital, in contravention of the equal-protection clause of the Fourteenth Amendment.
The opinion in effect held that the Iowa assessment statutes were not applied uniformly to property of the same character held by different owners. As applied to taxpayers identically situated the law was not of uniform operation. In that respect the United States Supreme Court reached the same conclusion as this court had reached in the same case. See Iowa Nat. Bk. v. Stewart,214 Iowa 1229, 232 N.W. 445. The case is not in point here.
Nor is the case of Pierce v. Green, 229 Iowa 22, 294 N.W. 237, 131 A.L.R. 335, pertinent to our present problem. It was an action to compel members of the State Tax Commission to perform their duties in the assessment of certain property. With the language quoted from that opinion by appellant here we have no quarrel, but it is not in point. It pertains to the matter of uniformity in the application of the law in assessing property. *Page 521
As we have already pointed out, the lack of uniformity complained of here is an inequality in result due to the fact that at the time the legalizing act took effect the various taxpayers were differently situated. A remedy that had been available was taken away from those who had not availed themselves of it. That was not due to any lack of uniformity in the operation of the law nor did it deny to any the equal protection of the laws. All taxpayers who had not availed themselves of the right of refund were alike thereafter barred from that remedy.
The other cases cited by appellant are, in effect, disposed of by what we said in Cook v. Hannah, supra, supplemented by the views expressed here. The decision of the trial court is right and is hereby affirmed. — Affirmed.
GARFIELD, C.J., and OLIVER, BLISS, HALE, and MANTZ, JJ., concur.
MULRONEY, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431161/ | [1] The submission herein consists of two appeals that have been argued and submitted together. One appeal challenges the court's decision, which annulled a writ of habeas corpus that had been issued on petition of Louis Burry. The other appeal challenges a similar decision regarding a writ that had been issued on petition of Richard Dwight Ringler. Ringler's *Page 1211
appeal involves exactly the same question as Burry's and an additional question. The trials were had primarily upon record evidence which was not disputed. We will review the record in Burry's case first.
On September 12, 1938, an information was filed at Sigourney, in the office of the clerk of the district court of Keokuk county, as follows:
"Comes now Ralph H. Goeldner, as the County Attorney of Keokuk County, State of Iowa, and in the name and by the authority of the State of Iowa, accuses Louis Burry of the crime of entering a Bank with intent to rob and charges that the said Louis Burry on or about the 1st day of September A.D., 1938 in the County and State aforesaid did unlawfully, willfully and feloniously enter the Hedrick Savings Bank at Hedrick, Keokuk County, Iowa, with the intent to hold up and rob said Bank and did take, steal, rob and carry away $1210.00 of United States Currency belonging to said Bank, contrary to and in violation of Section 13002 of the 1935 Code of Iowa.
Ralph H. Goeldner, County Attorney by Robert J. Shaw."
The information was verified as follows:
"STATE OF IOWA, Keokuk County, ss: I, Ralph H. Goeldner, being duly sworn, do depose and say that I am the County Attorney of Keokuk County, Iowa; that I have made a full and careful investigation of the facts upon which the above charge is based, and that the allegations contained in the above and foregoing instrument are true as I verily believe. Ralph H. Goeldner, by Robert J. Shaw.
"Subscribed and sworn to by Robert J. Shaw, before me, the undersigned, this 12 day of September, A.D. 1938. Margery Snakenberg Deputy Clerk of the District Court."
Previously on the same day the board of supervisors of Keokuk county had adopted a resolution as follows:
"Be it resolved by the Board of Supervisors of Keokuk County, Iowa by the authority of Section 5243 of the Code of *Page 1212
Iowa, Robert J. Shaw of Sigourney, Iowa, is employed for the State of Iowa and County of Keokuk in the prosecution in the cases of State of Iowa vs. Louis Lawrence Burry, State of Iowa vs. Richard Ringler, State of Iowa vs. William McDonald and State of Iowa vs. Norma McDonald, who are charged with violation of Section 13002 of the Code of Iowa."
The information was presented to Judge Bechly, presiding judge, and was approved by him. Defendant Burry appeared to the information, entered a plea of guilty, waived time, was sentenced to life imprisonment, and is now serving such sentence.
The record in Ringler's case is, to all intents and purposes, the same as in Burry's case except that Ringler entered a written plea of guilty before Judge Bechly at Washington, Iowa. The record in reference to this latter feature of Ringler's case will be referred to later.
I. The only error assigned in Burry's case is also assigned in Ringler's case. Counsel assert that, in each case, the court erred in annulling the writs because each information "was void for the reason that it was not promulgated and signed by the County Attorney of Keokuk County, Iowa, or by a Deputy or Assistant County Attorney, or by any Attorney appointed by the Court to act as County Attorney in the absence, sickness, or disability of the County Attorney, but on the contrary was promulgated, signed, and verified by a private citizen, one Robert J. Shaw." Appellants assert that Shaw's appointment by the board of supervisors to participate in the case was made, according to its express terms, pursuant to section 5243, Code, 1935, and that this statute is insufficient to confer authority to make an appointment that would authorize Shaw to sign the information in the name of the county attorney.
Section 5243, Code, 1935, provided as follows:
"The county attorney may with the approval of a judge of the district court procure such assistants in the trial of a person charged with felony as he shall deem necessary and for such assistants upon presenting to the board of supervisors a certificate of the district judge before whom said cause was tried, certifying to the services rendered, shall be allowed a *Page 1213
reasonable compensation therefor, to be fixed by the board of supervisors, but nothing in this chapter shall prevent the board of supervisors from employing an attorney to assist the county attorney in any cause or proceeding in which the state or county is interested."
This statute was originally enacted in 1886 as section 4, chapter 73, Acts of the Twenty-first General Assembly. The later changes in the statute do not affect the question now presented to us. Upon that proposition the statute is practically word for word as originally enacted. In the early case of Hopkins v. Clayton County, 32 Iowa 15, we held that, under a statute reading much like the last clause of the present statute, the board of supervisors might employ an assistant district attorney. The power of the board of supervisors to employ special counsel was reaffirmed in Jordan McCallum v. Osceola County, 59 Iowa 388, 13 N.W. 344, and Seaton v. Polk County, 59 Iowa 626, 13 N.W. 725.
In speaking of implied powers of the board in civil cases, we state in Taylor County v. Standley, 79 Iowa 666, 670, 44 N.W. 911, 912, as follows:
"We are of the opinion that the board of supervisors was authorized to employ counsel on behalf of the county by virtue of the general powers given them by statute to manage the affairs of the county, and that their right to do so, and to cause proceedings to be instituted in the name of the county, in cases of this kind, does not depend upon the consent of the county attorney, nor upon his willingness or ability to appear for the county."
We have also held that it is proper for the court to permit an attorney to assist the county attorney who is not employed by the board of supervisors and is not a deputy county attorney but is a private prosecutor. State v. Shinner, 76 Iowa 147, 148, 40 N.W. 144. In the case of State v. Shreves, 81 Iowa, 615, 623, 624, 47 N.W. 899, we held that the enactment of the statute now before us did not change this rule. These cases were expressly followed in State v. Crafton, 89 Iowa 109, 116, 56 N.W. 257. *Page 1214
In view of the fact that the enactment of the statute now before us did not change the law in reference to the right of the court to permit a prosecuting witness to employ counsel to assist the county attorney in the trial of a criminal case, we are satisfied that the enactment of such statute did not take away the right of the board of supervisors to employ a special prosecutor for a criminal case. The last clause of the statute as it now reads preserves that right to the board. It applies to any cause wherein the state or county is interested, civil or criminal. It is applicable herein. Accordingly, Robert J. Shaw was not an intermeddling private citizen. He was a special prosecutor, duly appointed by the board of supervisors to represent the county and the state in the prosecution of the criminal cases against the appellants herein. When the court approved the informations, it permitted Shaw to act as assistant county attorney.
Section 13674, Code, 1935, indicates that an information should be signed by the county attorney. It provides: "Information shall be, substantially, in the following form: * * *". The form which follows contains a blank line for the signature of the county attorney. This statute is directly analogous to section 4297, Code, 1873, which set forth the form of an indictment and indicated a signature by the district attorney thereto. In the case of State v. Ruby, 61 Iowa 86, 87, 88, 15 N.W. 848, we held that the signature of the county attorney was not indispensable to the validity of the indictment. Such pronouncement was expressly followed in State v. Wilmoth, 63 Iowa 380, 381, 19 N.W. 249; State v. Kovolosky, 92 Iowa 498, 501, 61 N.W. 223; and State v. Mathews, 133 Iowa 398, 399, 109 N.W. 616. Section 13655, Code, 1935, provides: "The information shall be drawn and construed, in matter of substance, as indictments are required to be drawn and construed." Applying this language to our interpretation of the informations herein, the signing of the county attorney's name thereto by Shaw did not deprive the court of jurisdiction to accept pleas of guilty thereon.
[2] Section 13646, Code, 1935, did require the county attorney's signature to an endorsement to the information. It provided as follows: "Such information shall be indorsed, `a true information', which indorsement shall be signed by the *Page 1215
county attorney." And section 13649 required a verification by the county attorney. But section 13659 provided: "A motion to set aside the information may be made on one or more of the following grounds: 1. When it is not indorsed `a true information', and the indorsement signed by the county attorney. * * * 4. When the information has not been verified or filed in the manner herein required." And section 13660 provided: "Such motion must be made before a plea is entered by the accused. If not so made, the objection shall be deemed waived."
In the case of State v. Voss, 201 Iowa 16, 206 N.W. 292, the endorsement required by section 13646, Code, 1924 (identical with that of the Code, 1935), was not signed by anyone. We held that, pursuant to sections 13659 and 13660, Code, 1924 (identical with statutes of similar number in Code, 1935), the defect was waived by a plea of guilty. See, also, State v. Fortunski, 200 Iowa 406, 204 N.W. 401. In addition to this, section 13657, Code, 1935, provided:
"Wherever the words county attorney appear in this chapter, the same shall be construed to mean county attorney or the assistant county attorney."
Under our statutes as interpreted by our decisions, any irregularity in the signature, verification, and filing of the two informations by Robert J. Shaw, acting as assistant county attorney, was waived by the pleas of guilty herein. The court was right in so holding. Appellants contend, however, that the question has never been previously determined by this court and they cite a number of decisions from other jurisdictions. Such contention narrows the question too much. We are satisfied that the statutes of this state and the decisions of this court are controlling. A reversal would require us to overrule decisions which we think are sound and to modify statutes by interpretations amounting to judicial legislation. This we will not do. Accordingly, we do not prolong this opinion to discuss and distinguish the decisions from other jurisdictions relied upon by appellants.
[3] II. The foregoing disposes of Burry's appeal. In Ringler's case, additional assignments of error are asserted because *Page 1216
of the fact that Ringler's judgment was signed at Washington upon a written plea of guilty. Later the written plea was filed and the judgment was entered at Sigourney. Washington and Sigourney are in the same judicial district, of which Judge Bechly was one of the district judges. The facts are in dispute and the dispute arises because of the manner in which the record was made.
The information against Ringler was marked filed by the clerk of the district court of Keokuk county at 2:56 p.m. September 12, 1938. Judge Bechly's approval thereof and Ringler's written plea of guilty bear the same date. The judgment entry, of the same date, recites that Ringler appeared before Judge Bechly in chambers at Washington, presented his written plea of guilty, waived appointment of attorneys, waived time, and sentence was imposed. The record of proceedings at Sigourney recited that previously, on September 8, 1938, "the Bailiff by an order of the Judge, adjourns court until 9:00 o'clock A.M. on the 12th day of September, 1938." The record further recited: "And now on this 12th day of September, 1938, at 9:00 o'clock A.M. court met pursuant to adjournment with same officers as at commencement of term, when were had, done and entered of record the following proceedings, to-wit:" Then follows the judgments against Burry and Ringler and the record recites: "And now at 5:00 o'clock on this 12th day of September, 1938, the Bailiff, by an order of the Judge, adjourns court until 9:00 o'clock A.M. on the 16th day of September, 1938." This record was approved by Judge P.J. Siegers on September 16, 1938.
Thereafter, on June 20, 1942, a nunc pro tunc order was entered by Judge Bechly correcting the foregoing record of proceedings at Sigourney on September 12, 1938, to read as follows: "And now on this 12th day of September, 1938, at 4:00 o'clock P.M. court met pursuant to adjournment with same officers as at commencement of term, when were had, done and entered of record, the following proceeding, to-wit:" Then follow the judgment entries on appellants' pleas of guilty herein.
Ringler objected to the introduction in evidence of the *Page 1217
nunc pro tunc correction of the record and assigns error here on the ground that Judge Bechly was without jurisdiction to change and impeach the record made during the April 1938 term, after said term, because the record did not disclose any evident mistake on the face thereof. Error is also assigned on the ground that Judge Bechly had no jurisdiction to pronounce sentence at Washington on a Keokuk county information when the court at Sigourney was not in recess or vacation.
Reliance is had upon the case of Dayton v. Bechly, 213 Iowa 1305, 241 N.W. 416. That was an original proceeding in certiorari. Dayton had been charged by information filed in Keokuk county. The information was approved by Judge Bechly at Oskaloosa, in Mahaska county, which is in the same judicial district. Upon a plea of guilty, the accused was sentenced forthwith at Oskaloosa. We held that, under the statutes as they then read, sentence could be thus imposed only during vacation, stating (213 Iowa at pages 1311 and 1312, page 419 of 241 N.W.) as follows:
"As a result of this conclusion, it is apparent that the respondent acted without jurisdiction when sentencing the petitioner, and therefore that action is null and void. When the respondent sentenced the petitioner, it was not vacation time in the Keokuk County district court, but rather term time thereof. Because it was not `vacation time,' the respondent would have no jurisdiction in the premises, and the petitioner could not, by pleading guilty to the county attorney's information, confer jurisdiction upon the respondent. * * * There is no provision in the statute indicating that the jurisdiction of the respondent can be conferred by agreement upon a Judge sitting at the usual place of holding court in Mahaska County, while it is still term time in Keokuk County. Every inference in the legislation in question is to the contrary."
Since the foregoing pronouncement was made, chapter 187 of the Acts of the Forty-fifth General Assembly amended section 13671, Code, 1931, to read as in the 1935 Code, to wit:
"Judgments in vacation, or during a recess of the court, can only be rendered by a judge of the district court sitting in *Page 1218
chambers at the usual place of holding court in the county where the information was filed, or in any other county of the judicial district, or in any county to which the cause may be transferred on change of venue." (Italics supplied.)
The same chapter also amended section 13669, Code, 1931, to read as in the 1935 Code, to wit:
"Judgments may be rendered in vacation or during a recess ofthe court, on written pleas of guilty of the offense charged, or of any degree or grade thereof, or of any offense included therein, with the same force and effect as though rendered in term time." (Italics supplied.)
The foregoing statute is followed by section 13670, Code, 1935, to wit:
"Said written plea of guilt, together with the judge's entry of judgment in reference thereto, shall be forthwith filed with the clerk of the court of the county wherein the information was filed and entered at length in the records of said court, and, after such entry, be executed as in case of judgments on indictment."
Appellant Ringler contends, however, that Dayton v. Bechly, supra, interpreted section 13667, Code, 1931, which read the same in the 1935 Code, to wit:
"Arraignments can be made and pleas required, in vacation, only before such judge sitting in chambers at the usual place of holding court in the county in which the information was filed, or in any other county of the judicial district, or in any county to which the cause may be sent on change of venue."
Appellant contends that section 13667 controls as to arraignments and that an arraignment can be had in another county of the district only in vacation. But section 13770, Code, 1935, permitted waiver of arraignment and the written plea of guilty expressly waived it. Section 13671, Code, 1935, applicable to judgments on informations, permits a judgment during recess at any county seat in the district. Sections 13669 and 13670 provide for recording and enforcing judgments rendered during recess on written plea of guilty and are broad *Page 1219
enough to include a judgment on written plea of guilty rendered in another county. Judgment on a written plea of guilty could be rendered during recess at any county seat in the district. Accordingly, if the court at Sigourney was in recess when Judge Bechly signed the judgment on Ringler's written plea of guilty at Washington, Judge Bechly acted within the jurisdiction provided by the 1935 Code.
[4] This brings us to the nunc pro tunc order of June 20, 1942. The order was entered after notice to appellant. Hearing was had, at which hearing appellant was represented by the same counsel that now appear for him. The sufficiency of the evidence to justify the correction of the record is not challenged. We have held repeatedly that, in a proper case for correcting the record nunc pro tunc, the lapse of time is no obstacle. Arnd v. Poston,199 Iowa 931, 933, 203 N.W. 260, 261, and cases cited therein. The only question remaining is whether the mistake appears on the face of the record sufficiently to come within the provisions of section 10803, Code, 1939, to wit: "Entries made and signed at a previous term can be altered only to correct an evident mistake."
In the case of State v. Frey, 206 Iowa 981, 984, 221 N.W. 445, 447, the judgment recited that defendant's motion for new trial and in arrest of judgment was sustained, and then proceeded to impose sentence of confinement for ten years. At a subsequent term the court corrected the judgment to show that the motion for new trial, etc. was overruled. We held that the correction was proper, stating as follows:
"The mistake appearing is an evident mistake, within the meaning of the aforesaid statute; for the court pronounced judgment committing the defendant to the reformatory, and it is apparent, or evident, that such commitment would not have been made, had he sustained the motion for new trial and in arrest of judgment."
The situation herein is analogous. Counsel contend that the journal entry of the proceedings had on September 12, 1938, shows on its face that the judgment, which recited that it was signed at Washington, was void because court was in session from 9:00 a.m. to 5:00 p.m. at Sigourney. But the presumption is *Page 1220
that the proceedings were regular. State v. Hartwick, 228 Iowa 245, 253, 290 N.W. 523. It is evident from the face of the record that a mistake occurred. The evidence established that the judgment was valid because court was in recess. The correction was proper nunc pro tunc.
Appellant contends that the record fails to show when Judge Bechly signed the judgment at Washington. This does not aid him. It was his duty to have the record show the error, if an error occurred. The record shows that the court at Sigourney was in recess until 4:00 p.m. on September 12, 1938. In the absence of any showing, it will be presumed that the action taken at Washington on that day occurred while the court at Sigourney was in recess.
The challenge here made, in each proceeding in habeas corpus, constitutes a collateral attack upon the convictions of bank robbery. Such attack must stand upon a defect so vital as to render the conviction void. Nothing of that kind appears herein. The causes are — Affirmed on both appeals.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431162/ | Appellant is the owner of certain real estate subject to taxation in Marshall County. Appellee Gilbert is the county treasurer of said county. On or about March 29, 1926, the appellant ascertained the amount of the first half of the taxes assessed against his property in said county for the year 1925, the amount being $712.44. On said date, the appellant executed and delivered to the county treasurer his check drawn on the Marshalltown State Bank for said amount. Thereafter, to wit, on April 3, 1926, the county treasurer duly made out tax receipts, four in number, aggregating the amount of said check, and representing the full payment of the first half of the 1925 taxes upon the appellant's said property. At that time, the appellant was not present in the treasurer's office, and the receipts so made out were placed in an envelope, and marked with the appellant's name, and were laid aside for delivery to him. The record shows that, had the appellant been present at said time, said receipts would have been delivered to him. Nothing further appears to have been done in the matter until April 14th, at which time the treasurer deposited said check, with others, in the First National Bank of Marshalltown. The Marshalltown State Bank, upon which said check was drawn, closed on the same day on which the check was deposited by the county treasurer in the First National Bank, and payment was not made thereon. It further appears that, at all times between the execution and delivery of said check and said 14th day of April, the time the bank closed, the appellant had on deposit in said bank *Page 727
sufficient to pay said check in full, had the same been presented. On the said 14th day of April, 1926, the county treasurer entered upon the tax list of said county an entry showing that the said taxes, amounting to $712.44, had been paid in full. Later, a pencil notation was made upon said books, to the effect that said tax receipts were "canceled and not paid." The receipts themselves were never canceled. It further appears that the county treasurer has treated the said sum of $712.44 as though it had been paid to him in cash by the appellant. The entries in his books have been made in the same manner as though the said sum of $712.44 had been paid into the hands of the treasurer in cash. The various funds have received proper credit for their proportionate share of said amount. The cash book carries a debit against these tax receipts for the full face thereof, and shows such amount "paid in full, as though it were cash in the drawer." By stipulation and arrangement subsequently made between the parties, the sum of $498.69 was realized as dividends paid by the bank upon which said check was drawn, and the treasurer received said sum; but it appears that no entry whatever has been made in respect thereto in the books of the treasurer. So far as the treasurer's cash book is concerned, the amount shown by such receipts has been distributed, and a portion of the money spent.
We have recently had before us the question of the payment of taxes to a county treasurer in Rundel v. Boone County, 204 Iowa 965. We therein recognized the general rule that it is the duty of every person subject to taxation to attend at the office of the county treasurer and pay his taxes, and that such payment must be made in money only, with the exceptions expressly provided in the statute. In said case we said:
"It was the statutory duty of the county treasurer to have required that the actual money should be paid to him in cash, before the delivery of the tax receipt to the taxpayer or to the bank. A public interest is here involved, and the public are entitled to have the taxes paid in the manner pointed out by the statute. The public revenues must be collected by the county treasurer substantially in the manner provided by the statute, and accounted for in full by him."
The question involved here is: Did the appellant in fact *Page 728
pay his taxes, under the circumstances shown? The giving of the check to the county treasurer was not a payment of taxes, as required by the statute, because it was not a payment in money or in any of the means of payment of taxes recognized by the statute. It was, in a sense, a conditional payment. The check was not honored, and the county did not receive the money for the taxes. The negligence of the treasurer in failing to present the check within the proper time is not chargeable to the county. The transaction differs essentially from the ordinary commercial transaction. It was the duty of the appellant, under the statute, to attend at the treasurer's office and pay his taxes in cash. He attempted to do so by a check, instead of by the payment of cash. If the treasurer was negligent in presenting the check and receiving the money, his negligence must be charged to the appellant, in so far as the public is concerned. Appellant, in a sense, made the county treasurer his agent to collect the check, and the right of the public to receive the taxes in cash cannot be prejudiced by the negligence of the treasurer in failing to present the check expeditiously.
A more difficult situation, however, confronts us regarding the conduct of the treasurer in treating the check, as the testimony shows, as "cash in the drawer," and in making distribution of the amount to the various funds in exactly the same manner as though the treasurer had received the actual cash from the appellant. The tax receipts were properly made out, and, as the treasurer says, would have been delivered to the appellant at the time, had he been present. They were laid aside for his demand. The amount of taxes due from the appellant has been distributed by the treasurer to the various funds in which it belonged, as shown by his books, exactly as though the treasurer had received the cash therefor, and a portion of the fund so distributed has been spent. This, however, was a matter of bookkeeping by the treasurer. It may have a bearing on the question of his personal liability, but it does not affect the ultimate question that the appellant has not in fact paid his taxes in money to the county. The Rundel case differs essentially from the case at bar, in the fact that the taxpayers in said case did pay their money to the county treasurer, or his agent, in full, and received their tax receipts. The fact that the county treasurer made an improper deposit of said money in an unauthorized depositary did not *Page 729
require the taxpayers, who had in fact complied with the statute, and paid their taxes once in cash, and received their receipts, to pay the same again. But no such situation faces us in the instant case. A public right is here involved, and not a mere matter of bookkeeping on the part of the treasurer. The ultimate fact remains that the appellant has not paid his taxes in the manner required by the statute. Until this is done, he is not entitled to a discharge from the lien that arises by reason of such nonpayment. Suppose that the county treasurer had made out the tax receipts exactly as he did, had placed the same in an envelope, and had marked the taxes on his book as being paid, and had made the entries in his several books showing the same as having been received by him in cash, and had even made distribution of the amount upon his books, without receiving any check whatever from the appellant, and without receiving any money from him, — could the appellant successfully contend that his taxes had been paid? We think not. What recourse, if any, the appellant may have against the treasurer, under the circumstances of this case, is a question with which we have no concern. We must decide but one proposition: namely, did the appellant in fact pay his taxes as the statute requires? There is but one answer to that question, and that must be in the negative. It therefore follows that the judgment of the district court is correct, and it is — Affirmed.
ALBERT, C.J., and STEVENS, MORLING, KINDIG, and WAGNER, JJ., concur.
EVANS and De GRAFF, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431163/ | There is involved in this case the question of the right of an independent school district having funds on deposit in an insolvent state bank to be preferred over other depositors in the distribution of the assets of the bank in the 1. RECEIVERS: hands of the state superintendent of banking, as allowance receiver. The question argued by counsel for and payment both parties is broader than this, and goes to of claims: the right of the state and municipalities to be, statutory under such circumstances, preferred over other priority to depositors. While there is some contention that municipali- an independent school district is not a ties: municipal corporation, in view of the nonapplica- concessions of counsel that the ultimate bility. question involved is whether *Page 187
the state and its municipalities are entitled to such preference, we shall assume, without deciding, that the independent school district is such a body politic as to come within the express terms of Section 3825-a, Code Supplement, 1913 (Section 12719, Code of 1924), if that section is controlling.
Section 3825-a, so far as material, is as follows:
"When the property of any person, partnership, company or corporation has been placed in the hands of a receiver for distribution, after the payment of all costs the following claims shall be entitled to priority of payment in the order named: * * * Second. Debts due or taxes assessed and levied for the benefit of the state, county or other municipal corporation in this state."
This statute was enacted by the thirty-first general assembly, and in its terms is of general application.
The contention of the appellee is grounded upon this statute, as construed and applied in connection with Section 1877 of the Code of 1897 in the case of In re Receivership of Marathon Sav.Bank, 198 Iowa 692.
Section 1877 provided, in substance, that the auditor of state, if satisfied that a bank was in an insolvent or unsafe condition, or that the interests of creditors required the closing of the bank, might authorize a bank examiner to take possession of the bank, and might forthwith, with the assent of the attorney-general, apply to the district court for the appointment of a receiver for the bank, and its affairs should "be wound up under the direction of the court, and the assets thereof ratably distributed among the creditors thereof, giving preference in payment to depositors." By Chapter 40, Acts of the Thirty-seventh General Assembly, the banking department of the state was created, with the superintendent of banking as its chief officer, in whom were vested all the powers relating to banks theretofore vested in the auditor of state.
We held, in the Marathon Bank case, upon a consideration of these statutes, that, where a state bank was being wound up and its assets distributed by a receiver appointed at the suit of its officers, a county having funds on deposit in the bank was entitled to be preferred over other depositors. *Page 188
Subsequent to the appointment of the receiver in the MarathonBank case, the legislature, by Chapter 189, Acts of the Fortieth General Assembly, amended Section 1877 by striking out the provisions above referred to, and enacting in lieu thereof that the superintendent of banking may "appoint an additional bank examiner to assist him in the duty of liquidation and distribution, whereupon the right of levy, or execution, or attachment against said bank or its assets shall be suspended, and the superintendent of banking may apply to the district court for that district in which said bank is located, or a judge thereof, for the appointment of said superintendent as receiver for such bank, and its affairs shall thereafter be under the direction of the court, and the assets thereof after the payment of the expenses of liquidation and distribution shall be ratably distributed among the creditors thereof, giving preference in payment to depositors. The attorney-general of the state, or such assistants as may be appointed by the court, shall represent the superintendent of banks in all proceedings provided for hereunder. No general assignment for the benefit of creditors shall be of any validity. The superintendent of banking henceforth shall be the sole and only receiver or liquidating officer for state incorporated banks and trust companies, and he shall serve without compensation other than his stated compensation as superintendent of banking, but he shall be allowed clerical and other expenses necessary in the conduct of the receivership. All expenses of supervision and liquidation shall be fixed by him, subject to approval by the court or a judge thereof, and shall upon his certificate be paid out of the funds of such bank in his hands."
The last mentioned statute was in force at the time of the appointment of the receiver in the instant case; and the question is presented whether under it the rule of the Marathon Bank case is to be applied, or whether the legislature has thereby provided for a ratable distribution of the assets of an insolvent bank in the hands of the superintendent of banking as receiver, notwithstanding the provisions of Section 3825-a.
Banks chartered by the state are under state supervision. Elaborate and detailed provision is made by statute for their organization and control, and their powers and obligations are *Page 189
strictly defined. A separate department of the state government is provided, charged with the duty of administering the laws with respect to banks. The statute controls the amount of their capital, and regulates the manner of its investment. They are required to make periodical reports to the department of banking, covering exhaustively their condition and exhibiting their resources and obligations, and are subject to examination by the department. Provision is made for their dissolution, and the state assumes and exercises, through the superintendent of banking, the right to enforce their involuntary dissolution, when they are found to be insolvent or in an unsafe condition. These provisions are in the interest and for the protection of their depositors and those who transact business with them. There is no occasion to state here either exactly or fully the statutory provisions referred to. It suffices to say that, prior to the enactment of Chapter 189 of the Acts of the Fortieth General Assembly, the state had, in a series of legislative enactments relating alone and exclusively to banks, made provision for their organization, management, operation, and dissolution, and placed the administration of these laws, with an important exception to be presently noted, in the hands of the superintendent of banking. These enactments, save in the one particular, have a close similarity to the Federal statutes relating to national banks, with such differences as the nature of the subjects required.
There are other and collateral aspects in which the situation of state banks in relation to their depositors is, under the state law, similar to that of national banks, as governed by Federal statutes. National banks are permitted to receive deposits of money at the hands of the Federal government and its agencies, upon giving certain stipulated security therefor. The funds belonging to the state and its municipalities and their officers may be deposited in banks, upon the execution by the banks of depository bonds securing their return. Again it is unnecessary, for our present purpose, to make exact reference to the statutes.
Federal statutes also contain a provision, general in character, to the effect that, whenever any person indebted to the United States is insolvent, debts due to the United States shall *Page 190
be first satisfied. Section 3466, Revised Statutes. This statute is, in effect, the same, as respects debts due the United States, as Section 3825-a in respect to debts due the state or any municipality from a corporation in the hands of a receiver.
It has long been settled that this last mentioned Federal statute is not effective, as against a provision of the National Bank Act providing for a ratable distribution of the assets of an insolvent national bank, after the redemption of its outstanding circulating notes, to give a preference to the payment of deposits of the Federal government or its agencies. Cook CountyNat. Bank v. United States, 107 U.S. 445 (27 L. Ed. 537); Davisv. Elmira Sav. Bank, 161 U.S. 275 (40 L. Ed. 700).
The decision in the Cook County Nat. Bank case was bottomed upon the doctrine that the Federal act relating to national banks constituted by itself a complete code of laws for the organization, control, and dissolution of national banks, and the manner of payment of their debts. The court, speaking by Justice Field, said:
"We consider that act as constituting by itself a complete system for the establishment and government of national banks, prescribing the manner in which they may be formed; the amount of circulating notes they may issue; the security to be furnished for the redemption of those in circulation; their obligations as depositaries of public moneys, and as such to furnish security for the deposits, and designating the consequences of their failure to redeem their notes; their liability to be placed in the hands of a receiver; and the manner, in such event, in which their affairs shall be wound up, their circulating notes redeemed, and other debts paid, or their property applied towards such payment. Everything essential to the formation of the banks, the issue, security, and redemption of their notes, the winding up of the institutions, and the distribution of their effects, are fully provided for, as in a separate code by itself, neither limited nor enlarged by other statutory provisions with respect to the settlement of demands against insolvents or their estates."
At the time a rehearing was denied in the Marathon Bank case, a supplemental opinion was filed, which dealt with the contention that the banking laws of this state, in connection with *Page 191
Section 3825-a, presented a situation so like that found in the Federal statutes as to require us to then adopt the reasoning and apply the rule of the Cook County Nat. Bank case. We declined to do so, under the statutes controlling in that case and then under consideration.
At that time, the banking laws of the state, as appearing in those statutes, presented a marked and, we think, controlling distinction, when compared with the Federal statutes relating to national banks. Section 1877, as modified by the statute creating the office of superintendent of banking, provided that, whenever that officer should become satisfied that a bank was in an insolvent or unsafe condition, or that the interests of creditors required its closing, he might authorize a bank examiner to take possession of the bank; and that he was authorized, with the assent of the attorney-general, to apply forthwith to the district court for the appointment of a receiver for the bank; and that its affairs should be wound up under the direction of the court and its assets ratably distributed among its creditors, giving preference in payment to depositors. This statute required the affairs of the bank to be wound up and its assets distributed under the direction of the court, acting through a receiver, and gave to the superintendent of banking only the authority to take possession of the bank and ask for the appointment of a receiver by the court; but gave him no authority, independently of such action by the court, to himself wind up its affairs and distribute its assets. When the superintendent of banking took possession of a bank, there his authority stopped, so far as dissolution was concerned, unless he applied to the court for the appointment of a receiver, by whom, under the direction of the court, its affairs should be wound up. He might take possession of the bank, in a proper case, and hold it for the protection of all parties interested. If, in that situation, the bank, through the efforts of its officers, directors, or stockholders, was able to so adjust its affairs that it could re-open, and continue business with safety, dissolution would not be required, and no receiver would be necessary. But if dissolution was necessary, that could only be accomplished through a receivership under the direction of the court; for it was further provided that he might apply to the court for the appointment *Page 192
of a receiver, and that the affairs of the bank should be wound up under the direction of the court. In brief, the power and authority of the superintendent of banking to liquidate an insolvent bank and distribute its assets were much short of those conferred by Federal statutes upon the comptroller of the currency over national banks; and in that respect the statute differed materially from the Federal statute governing national banks, and the state did not then have such a separate and complete code of laws governing the involuntary dissolution of state banks as to take the subject out of the operation of a general law; but the matter was left in the hands of the court, with authority to wind up the bank's affairs through its receiver, which brought it within the express terms of Section 3825-a, a general and subsequently enacted statute. Furthermore, we had held, in Dickerson v. Cass County Bank, 95 Iowa 392, that statutory provisions for the appointment of a receiver of an insolvent bank on application of the auditor of state were not exclusive, and that the right still existed, under the general law, in any proper interested party, and upon a proper showing, to have a receiver appointed.
It was in this state of the law that we declined, in theMarathon Bank case, to hold that the statutes of the state provided such a complete and separate code for the organization, management, and dissolution of state banks and the distribution of their assets as to take them out of the general provisions of Section 3825-a, applying to all corporations in the hands of a receiver.
It cannot be questioned, we think, that the only respect in which the state statutes failed to make such separate and complete provision was in regard to the involuntary dissolution of banks and the distribution of their assets. The accomplishment of these things, under the statutes then under consideration, required the intervention of the court through a receiver, who might be any person selected by the court, and was not required to be the superintendent of banking. The situation is well illustrated by the facts involved in the Marathon Bank case, where the suit was instituted by the bank's officers, the receiver was the attorney for the bank, and the superintendent of banking had no connection with the closing of the bank or the subsequent proceedings. *Page 193
Chapter 189 of the Acts of the Fortieth General Assembly has, we think, supplied the necessary statutory requirements to bring our banking laws to such a parity with the Federal statutes relating to national banks as to no longer afford reasonable or logical basis, because of differences in the statutes, for denying them the effect, as against general provisions, accorded to the Federal statute. The act in question gives to the superintendent of banking, independently of the appointment of a receiver, the power to liquidate an insolvent bank and distribute its assets. After providing that he may, in a proper case, take possession of a bank, it gives him authority to appoint an additional bank examiner to assist him in the duty of liquidation
and distribution. It is then further provided that he may apply to the court for the appointment of himself as receiver for the bank, and that its affairs shall thereafter be under the direction of the court. The change here is significant. Whereas formerly it was only upon the appointment of a receiver that the bank's affairs were to be wound up, and then under the direction of the court, under the instant statute the superintendent is first authorized to appoint an additional bank examiner to assisthim in the duty of liquidation and distribution, and then given permission to apply for a receiver; and thereafter the bank's affairs shall be under the direction of the court. It is not difficult to see that many of the affairs of a bank might require the services of a receiver and the direction of the court in their settlement; but the actual "winding up" of its affairs and the distribution of its assets do not, under this statute, necessarily require either the services of a receiver or judicial direction. Furthermore, the present statute expressly provides that the superintendent of banking shall be the "sole and only receiver or liquidating officer." If it was not the legislative purpose to give to the superintendent of banking, as such, and without his being appointed receiver, power to liquidate an insolvent bank, — if a receiver was still to be the only liquidating officer, — why was it thought necessary to provide, and in the alternative, not only that the superintendent should be the only receiver, but that he should be the only liquidating officer? It is the superintendent of banking, and not the receiver, who is made the only liquidating officer. It is true, the authority given in *Page 194
both statutes to apply for the appointment of a receiver is permissive, rather than mandatory. In the former statute, however, this had reference to the necessity for liquidation; while in the present act it refers, not to the necessity for liquidation, — for the superintendent is given authority to liquidate the bank, — but to some exigency arising in the affairs of the bank that makes a receiver desirable or necessary. We would not be understood as saying that, where the superintendent of banking is not appointed receiver, his actions in the winding up of the affairs of a bank and distributing its assets are beyond the control of the court, or as expressing any doubt of the power of the court, in a proper case, to afford appropriate relief, as against the superintendent of banking, when, in that capacity only, he undertakes the liquidation of an insolvent bank. We may add that the propriety of this enlargement of the power and authority of the superintendent of banking to include the liquidation and distribution of the assets of an insolvent bank without being appointed receiver, is a matter for legislative, rather than judicial, concern. We are called upon only to construe the statute as we find it. That it does so enlarge his power, we think is plain. Whether these provisions operate to take away the right, heretofore recognized, of an individual to ask for the appointment of a receiver for a banking corporation, we do not determine; but that they do deprive the court of the power to deny to the superintendent of banking the right expressly conferred upon him to act as receiver, if one is needed, and, in any event, to liquidate the bank and distribute its assets, is clear.
We think that, to say the least, these changes in the statute, and the enlargement of the powers and duties of the superintendent of banking, and the corresponding exclusion of the necessity for a receiver and judicial direction in the distribution of an insolvent state bank's assets, would fully warrant, if not in fact require, if recognized rules of statutory construction will permit, a holding, in accord with the doctrine announced in Cook County Nat. Bank v. United States, supra, that the general statute providing for a preference on behalf of the state and its municipalities, in the distribution of the assets of a corporation in the hands of a receiver, is no longer applicable to banks. *Page 195
As a general rule, a later law which is merely a re-enactment of a former is not regarded as repealing an intermediate act which has qualified or modified the first one; but the intermediate act will be deemed to remain in 2. STATUTES: force and to qualify or modify the new act in construc- the same manner as it did the first. But the tion: rule is subject to the limitations or exceptions repeal and that, where a law is amended and re-enacted, any re- intermediate law inconsistent with the new enactment: matter introduced or change made by the effect. amendment will be regarded as repealed, so far as they are in conflict, and that, when a law is substantially re-enacted, it shows that the legislature did not regard it as repugnant to an intermediate act to some extent covering the same subject. 1 Lewis' Sutherland on Statutory Construction (2d Ed.) 524, Section 273; Hawes v. Fliegler, 87 Minn. 319 (92 N.W. 223);Lynch v. Chase, 55 Kan. 367 (40 P. 666).
The amendment of Section 1877 by striking out a portion, including the provisions for a ratable distribution of assets, with preference to depositors, and the re-enactment of that provision, with the enactment of others that placed the duty of liquidation and distribution of assets upon the superintendent of banking, irrespective of whether he had been appointed receiver, and the omission of the former provision that the winding up of the affairs of the bank should be under the direction of the court, clearly evinced a legislative intent to provide, in the case of banks, for a ratable distribution of assets, with preference to depositors, whether a receiver was appointed by the court or not. It could not be contended that Section 3825-a required that a preference be given state or municipal deposits in the case of liquidation of a bank by the superintendent of banking where he had not been appointed receiver. That section neither in terms nor by implication so provides. It requires such a preference only when the property is in the hands of a receiver. Can it be said that, by the re-enactment of the provisions of Section 1877 for a ratable distribution of assets, with preference to depositors, and the granting of power to the superintendent of banking to make the distribution without being appointed receiver, the legislature intended that, when distribution was made by him in that capacity, there should be no preference among *Page 196
depositors, but that, when made by him as receiver, the provisions of Section 3825-a should control, and state and municipal deposits be given a preference? Should we not rather conclude that, when the appointment of a receiver ceased to be an essential and a necessary preliminary step to the distribution of assets, and was made merely a permissible incident in the administration of the insolvent estate, it should also cease to be the determining factor in the manner of distribution? The mere statement of the proposition is sufficient to demonstrate that it was not the legislative intent that the mere fact that the superintendent of banking was appointed receiver, when such appointment was not a necessary preliminary to the distribution of the assets of a bank, should nevertheless work a radical change in the rights of depositors; or that, with full power to make distribution as superintendent of banking, he could, by procuring himself to be appointed receiver, give a preference to one class of depositors over another.
If we regard the later act, as we do, as much more than the 3. RECEIVERS: mere re-enactment of Section 1877, it was a allowance clear relinquishment of any common-law right of and payment preference which inheres in the state and its of claims: municipalities as an attribute of sovereignty, right of and which may be said to have been reasserted by governmental Section 3825-a, the intermediate act, and was a sovereign: subsequent declaration of legislative purpose to waiver. provide for a ratable distribution of the assets of insolvent state banks, with preference to depositors generally.
The contention that the state is not to be bound by the words of a statute unless expressly named therein, if the statute tends to restrain or diminish the powers, rights, or interests of the sovereign, is fully answered in Cook County Nat. Bank v. UnitedStates, supra.
Certain considerations of public policy weigh strongly against a construction of the statutes involved that would make Section 3825-a applicable to insolvent state banks. Not only has the right of the United States to a preference for claims due from an insolvent national bank been denied, but it has been held that a state statute giving a preference to one class of bank depositors over another is inoperative in the case of a national *Page 197
bank. Palo Alto County v. Ulrich, 199 Iowa 1; Davis v. ElmiraSav. Bank, supra; Easton v. Iowa, 188 U.S. 220 (47 L. Ed. 452);First Nat. Bank v. Selden, 56 C.C.A. 532 (120 Fed. 212, 62 L.R.A. 559). The state is powerless to enforce a statutory preference in respect to its own deposits or those of its municipalities in insolvent national banks. This results in an obvious discrimination, as between depositors in insolvent state and national banks, not alone with respect to public funds so deposited, but as affecting individual depositors as well. If deposits belonging to the state and municipal corporations are preferred in one class of banks and not in the other, it follows that the payment of individual depositors in one case must be postponed until the depositors of public funds are paid in full, with the probability that the remaining assets will be insufficient to pay unpreferred depositors in full; while in the other, all depositors stand upon an equal footing. The possibility of this result to the individual depositor might well, especially in times of financial stress, work a serious discrimination against state banks. They must either forego any advantage to be had from the deposit of public funds, or offer less security to the individual depositor than a national bank otherwise similarly situated, and therefore be at a disadvantage in the field of competition in general business. Moreover, the risk assumed by the surety on the depository bond required of a state bank to secure the deposit of public funds is reduced to the possibility that its total assets may not pay such deposit; while in the case of a national bank, the surety assumes the greater risk that its assets may not pay its total deposits. That these results are matter of grave public concern goes without saying; and that they should be permitted to be brought about only by the most unequivocal legislative enactments, and not at all by judicial construction of existing statutes, unless established canons of statutory construction imperatively require it, is plain. These considerations are persuasive upon us to adopt that construction of the statutes, where their language and history and the settled rules of construction permit, that will result in the application to insolvent state banks of the same rule we are required to enforce in the case of national banks.
Still another consideration, and one entitled to weight, not *Page 198
only upon the question of public policy involved, but upon the legislative intent in re-enacting, with Section 3825-a upon the statute books, the provision of a prior statute for the ratable distribution of the assets of an insolvent state bank, with preference to depositors, is the fact that the statutes make ample provision for the security of public funds on deposit in banks, by requiring depository bonds; and that, in the case of a failure to comply with these requirements, under established principles of equity, the deposit would be wrongful, and, if traceable as augmenting the bank's assets, would be recoverable as a trust fund. The proper protection of public funds, recognized as a salutary purpose to be accomplished, is not jeopardized by a holding that the statute in question provides for a ratable distribution of the assets of an insolvent state bank, with preference to depositors.
We therefore hold that Chapter 189 of the Acts of the Fortieth General Assembly, in connection with the statute thereby amended and prior statutes on the subject, constituted a separate and complete code of laws governing the organization, operation, and liquidation of state banks, and controlled the distribution of their assets, notwithstanding the general provisions of Section 3825-a. These statutes are now to be found under Title XXI of the Code of 1924.
It follows that the demurrer to the petition of intervention should have been sustained. The case is — Reversed and remanded.
FAVILLE, C.J., and EVANS, J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431167/ | The petition averred that the plaintiff-bank had become insolvent prior to April 21, 1927; that, on that date, under the supervision of the state banking department, it transferred all its assets to the Farmers Savings Bank of Slater; that the said Farmers Savings Bank of Slater assumed the 1. BANKS AND payment of all the plaintiff's deposits; that, BANKING: in order to induce such assumption by the stockhold- Farmers Savings Bank, certain directors of the ers: super- plaintiff-bank gave to the said Farmers Savings added Bank their obligation to hold it harmless; that double said directors thereby became creditors of the liability: insolvent bank; that said insolvent bank has not improper sufficient assets to pay its creditors. Hence plaintiff- this proceeding to enforce an assessment. The right to bring the action was predicated upon a formal order issued by the superintendent of banking, which order was set forth as an exhibit to the petition, as follows (omitting formalities):
"Whereas, in the sale of the Home Savings Bank of Slater to the Farmers Savings Bank of Slater, on the 21st day of April, 1926, there was executed a bills payable note of the Home Savings Bank of Slater to cover any deficiency between the assets of the said Home Savings Bank and the deposit liability assumed by the Farmers Savings Bank,
"And, whereas, in a recent examination of the Farmers Savings Bank of Slater, the examiner found that the assets of the Home Savings Bank of Slater have been exhausted and that they were insufficient to meet the liabilities of the bank,
"Now, therefore, I, L.A. Andrew, superintendent of banking for the state of Iowa, do hereby order and direct that an assessment be made upon the several stockholders of said bank, namely, Home Savings Bank of Slater, Iowa, amounting to one hundred per cent (100%) of the capital stock, being one hundred dollars ($100.00) per share of the stock held by each stockholder, *Page 699 for the purpose of paying the obligations of the said HomeSavings Bank to its creditors, as provided by Sections 9251 and9252 of the Code."
It will be noted from the foregoing that the order above set forth purports to declare an assessment pursuant to Sections 9251 and 9252. These sections relate to the superadded liability of stockholders for the debts of an insolvent bank. The bank itself has no right to maintain such an action. Such action accrues to the creditors, and not to the bank. Plaintiff recognizes this state of the law and the incongruity of its petition. It contends, however, that the reference to those sections in the order was a manifest error, and that the same should be disregarded as surplusage.
It contends that the real purpose of the superintendent of banking was to order an assessment under the provisions of Section 9248, which provides for an assessment to restore impaired capital. This, however, is a mere inference or deduction, and is not made apparent in the 2. BANKS AND record. It is argued that, inasmuch as the state BANKING: superintendent of banking had no right to order stockhold- an assessment under Sections 9251 and 9252, this ers: assess- is a sufficient reason for saying that he must ment: non- have intended, rather, to order an assessment power of under Section 9248. But he had no better right superinten- to order an assessment under Section 9248 than dent. he did to order one under Sections 9251 and 9252. Section 9248 has no application to insolvent banks. It applies only to solvent banks whose capital has been impaired. It does not contemplate the restoration of the capital of an insolvent bank. When a bank becomes insolvent, it becomes the duty of the superintendent of banking to proceed against it, as such. No power is conferred upon the superintendent under Section 9248 to impose an assessment upon the stockholders of an insolvent bank. Moreover, the order above set forth purports to be for the benefit of the creditors of the plaintiff-bank. Such is the function of Section 9251. It is not the function of Section 9248.
Plaintiff's petition was properly dismissed, and the order of the district court is — Affirmed.
De GRAFF, ALBERT, MORLING, KINDIG, and WAGNER, JJ., concur. *Page 700 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431187/ | The case of McCloud v. Bates et al. was tried in the district court of Delaware county, Iowa, and decree was entered, dismissing the plaintiff's petition. Plaintiff appealed to the Supreme Court of Iowa and the cause was reversed. See McCloud v. Bates, 220 Iowa 252, 261 N.W. 766. Procedendo was duly issued and filed in the office of the clerk of the district court of Delaware County, Iowa, on the 24th day of September, 1935. Thereafter the plaintiff filed in said cause a motion for judgment and decree. The trial court found that the plaintiff was entitled to entry of decree only in compliance with the contract pleaded and testified to by her and tenders made by her in pleadings and testimony; and further found that upon the payment by plaintiff to the defendant-receiver of the sums of money obtained by her as dividends upon her deposits, and upon assigning to the receiver all claims to further dividends, decree would be entered in accordance with her original petition.
Plaintiff was not satisfied with this and has appealed to this court.
This is the second time that the writer of this opinion has been confronted with the record in this case, and, while a Supreme Court judge may not understand the record at the first reading, after reading it twice even he becomes familiar therewith.
Asenath McCloud in November of 1933 instituted an action in the district court of Delaware county, Iowa, against the receiver of the Delaware County State Bank and the sheriff of said county, asking that the title to certain real estate, described in her petition, be quieted as against the adverse claims of the defendants, and that a certain judgment which the receiver of the Delaware County State Bank had obtained against her husband be decreed not to be a lien upon said real estate, and that the *Page 1049
defendants be enjoined from enforcing said judgment against said described property. In her petition she alleged that she was the absolute owner of the real estate and that it had been transferred to her some time before by her husband, Edward McCloud, pursuant to an oral arrangement, in which she claimed that her husband was indebted to her in a certain amount, and in addition thereto, as a part of the consideration for the transfer by her husband to her of the 380-acre farm, she would permit any deposit which she then had in the Delaware County State Bank to be applied upon any indebtedness which her said husband then owed said bank. This was the allegation of her petition. She tendered into court the amount which she had received by way of dividends upon her deposit in the Delaware County State Bank and offered to assign and turn over to the bank her certificates in said institution. Not only did she state this in her petition but she came into open court, and, taking the witness stand, testified as follows:
"The money I refer to was deposited in the Delaware County State Bank and that is the bank to which my husband owed the money. I am willing that the dividend that is declared by the Delaware County State Bank should be applied on my husband's note, as I agreed with him it might be."
Mrs. McCloud had two certificates of deposit. One was in the sum of $2,020, and the other in the sum of $1,300. At no time during the first trial in the lower court, or during the submission of the appeal in this court, or in any of the written briefs, did Mrs. McCloud ever claim that the receiver was not entitled to the dividends she received upon the deposits she had in the bank and to an assignment of the certificates. It was upon that basis that the case was submitted in this court, and it was upon that theory that the first opinion in this case was written and the case reversed and remanded. The relief which Mrs. McCloud asked in this court in the first submission of this case was that the title to the real estate involved be quieted in her. She did not claim she had any interest in these certificates in the Delaware County State Bank, and proclaimed that a part of the consideration for the transfer of this 380-acre farm was the assignment and turning over by her of these certificates to her husband. This court said at page 256 of 220 Iowa [261 N.W. 768]: *Page 1050
"In addition to that, she had certain money on deposit in the Delaware County State Bank, which she was turning over to her husband in consideration of this transfer."
At no time did Mrs. McCloud or her counsel make any claim that she was entitled to the dividends upon the certificates of deposit in the Delaware County Bank, until after this case had been reversed by this court and sent back to the lower court. At all times she claimed that the receiver was entitled to these dividends and she tendered them into court and so testified upon the witness stand. After the procedendo was returned from this court Mrs. McCloud asked that she be given not alone the land free and clear from any claim of the receiver, but that she also was entitled to the dividends paid upon these certificates of deposit, which she several years before had turned over to her husband as part of the consideration of the transfer of the 380-acre farm. The maxim that "he who seeks equity must do equity" has direct application to the situation here presented. Mrs. McCloud in this case seeks to uphold her title to real estate which she alleges was conveyed to her under an oral arrangement, one of the terms of which she pleads was that "she would permit any deposit which she then had in the Delaware County State Bank to be applied upon any indebtedness which the said Edward McCloud then owed said bank."
In 10 R.C.L., at pages 392-3 we find the following:
"Anyone going into a court of equity and asking its aid, whether that aid be such as could be obtained in a court of law, or whether it be of a character obtainable only in a court of equity, submits himself to the jurisdiction of the court, and in asking its aid subjects himself to the imposition of such terms as well-established equitable principles would require. This principle expressed in the form of the maxim, `he who seeks equity must do equity,' is almost as old as the tribunal to which it applies, and since courts of equity refuse to recognize and protect equitable rights unless such rights are based on conscience and good faith, it may be regarded as one of the cardinal rules of equity. It pervades the entire field of equity jurisprudence. Thus, one who seeks by a bill in equity to rescind a contract of sale for fraud on the part of the purchaser must, as a condition precedent, offer to repay the purchase price. So where a person in peaceable possession under claim of lawful title has in good *Page 1051
faith paid assessments and made permanent improvements, the true owner who seeks the aid of equity to establish his title will be compelled to reimburse the occupant for his expenditures. That an infant must restore the property which he obtains on a contract where he has been guilty of deceit or fraud before he can avoid it is also the universal rule in equity. The maxim is also applicable to all complainants seeking relief from judgments against them. And the doctrine of equitable elections rests on the same principle. Where a litigant asks affirmative equitable relief, he will be required to honor the maxim, irrespective of the statute of limitations which in such cases is no bar to the imposition of equitable conditions."
The Supreme Court of the United States in the case of Central Kentucky Natural Gas Company v. Railroad Commission of Kentucky,290 U.S. 264, 54 S. Ct. 154, 157, 78 L. Ed. 307, at pages 312-3, said:
"The power of a court of equity, in the exercise of a sound discretion, to grant, upon equitable conditions, the extraordinary relief to which a plaintiff would otherwise be entitled, without condition, is undoubted. It may refuse its aid to him who sees relief from an illegal tax or assessment unless he will do equity by paying that which is conceded to be due. * * * It may withhold from a plaintiff the complete relief to which he would otherwise be entitled if the defendant is willing to give in its stead such substituted relief as, under the special circumstances of the case, satisfies the requirements of equity and good conscience. * * * It may prescribe the performance of conditions designed to protect the rights of the parties pending appeal * * * or to protect temporarily the public interest while its decree is being carried into effect."
The appellant takes the narrow position that the trial court under the procedendo was required to enter a decree in the form prepared by her counsel regardless of her failure and refusal to perform the conditions of the arrangement pleaded by her and the offers and tenders made by her. The pleadings in which these tenders and offers are found have never been withdrawn and are the pleadings upon which the decree is asked to be entered. Her petition has never been changed; she is still before this court with that petition, asserting to the court the arrangement *Page 1052
between her husband and herself, and asserting that one of the considerations of the arrangement was the application of this bank deposit upon her husband's debt to the bank. The trial court in its ruling gave the plaintiff all that she asked in the pleadings before the court. The only condition the trial court imposed as necessary to be performed by the appellant before the entry of the decree as asked by her were conditions in exact accordance with the arrangement that Mrs. McCloud asserted in her petition had been made by her. She was required to pay over to apply upon the receiver's judgment the total amount of the dividends which she had received on the bank deposit, which she had offered into court, and to assign the remainder of that deposit to the receiver, all of which in her original petition she had said she was willing, ready and able to do. She was told that when she did that, decree would be entered.
This is not a case, as appellant seems to believe, where the lower court is refusing to carry out the judgment of this court. The trial court did not proceed, as appellant contends, to review the record and enter such decree as in its judgment it thought proper; it recognized that it was bound by the opinion of this court and gave to that opinion the only interpretation which, in the light of the record, it could receive.
The appellant also argues that she was not bound to tender into court the amounts of money received by her as dividends upon the deposit in the Delaware County State Bank. The truth of the matter is that it was Mrs. McCloud's claim that she turned over to her husband as part of the consideration for the transfer of the 380-acre farm, her certificates in the Delaware County State Bank. Until Mrs. McCloud obtained a favorable holding she deemed it material to allege as a necessary part of her cause of action, that, as a part of the consideration for the transfer of the land, she had agreed to permit the deposit she had in the Delaware County State Bank to be applied upon her husband's indebtedness to the bank; and further, to allege that she brought into court the dividends received by her on the deposits in the Delaware County State Bank and tendered the same to the receiver for application upon her husband's debt in accordance with the arrangements with her husband. She cannot now, under these facts, argue that she was not required to plead or make a tender. She was in a court of equity. She was claiming the benefits of the alleged agreement, the terms of which she set *Page 1053
forth. She deemed it necessary, and it was essential to her case, to plead and prove her willingness and ability to perform that agreement.
Other questions are raised which we do not deem it necessary to go into. Mrs. McCloud commenced this lawsuit. She secured the relief that she asked for. The decree which the lower court entered is just exactly what she claimed she was entitled to.
It therefore follows that this case must be, and it is hereby, affirmed. — Affirmed.
Chief Justice and all Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431189/ | Ida B. Korner, deceased, obtained judgment against Charles D. McKirgan. The appellants are the husband and the adult daughter of said Ida B. Korner, and are her sole *Page 516
heirs at law. The appellants procured an execution to issue on said judgment, and levy of the same was made by garnishment of Anderson. Charles D. McKirgan was the tenant upon the farm of his father, the intervener, A.R. McKirgan. There were two chattel mortgages upon the personal property of the said Charles, and the said personal property was subject to a landlord's lien for rent due the intervener, A.R. McKirgan. Charles D. McKirgan and A.R. McKirgan entered into an oral agreement which provided that the said Charles should hold a public sale on said farm, and that the proceeds of said sale should be held by the clerk, Anderson, and used to pay off the mortgages upon said personal property first; that the said Charles was to receive therefrom an amount necessary to move him to the town of Indianola, being about $30; and that the remainder of the proceeds of said sale should be turned over by said Anderson to A.R. McKirgan, to apply upon the rent due to him. This agreement was communicated to Anderson prior to the said sale. Anderson was garnished after the sale, and before the money in his hands had been paid by him to A.R. McKirgan.
I. There is no dispute in the record with regard to the arrangement between the father and the son respecting the sale of the property, and that the proceeds, after the satisfaction of the two outstanding mortgages and the amount to be paid the son to move into Indianola, were to be paid by the clerk of the sale to the father, to apply on his landlord's lien on said property. That such an arrangement is valid and will be upheld, and that the clerk of the sale holds the said funds as trustee for the use and benefit of the lien holder, under such an arrangement, and that said funds in the hands of the clerk are not subject to garnishment at the instance of the creditors of the debtor, has been expressly held by us, under a similar state of facts. Hoytv. Clemans, 167 Iowa 330. See, also, Bergman McKinley v.Guthrie, 89 Iowa 290; Barrett v. Martzahn, 186 Iowa 548; Bank ofHinton v. Swan, 156 Iowa 715; Minneapolis Threshing Mach. Co. v.Calhoun, 37 S.D. 542 (159 N.W. 127).
II. Appellee A.R. McKirgan, on his cross-appeal, is not entitled, in any event, to the $30 which, under the agreement between himself and his son, was to be turned over to the latter for the purpose of enabling him to move to Indianola. The son has not appealed, and does not contest the right of the appellants *Page 517
to hold this sum. This disposes of all the questions necessary to a determination of this appeal. The order of the district court was correct, and it is in all respects affirmed. — Affirmed.
De GRAFF, C.J., and STEVENS and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431221/ | [1] Both mortgages in this case cover the same land. It is not claimed that either contained in the granting clause a chattel mortgage provision. Both mortgages contained, remote from the granting clause, a pledge of the rents, issues, and profits to the payment of the mortgage debt and a stipulation that in event of foreclosure a receiver might be appointed to collect such rents, issues, and profits and apply them on the mortgage debt. The holder of the second mortgage filed a petition to foreclose and prayed for the appointment of a receiver in 1931. The holder of the first mortgage commenced such an action on his mortgage in March, 1934. The priority of their respective claims to the rents, income, and profits of the mortgaged premises for 1934 are involved. It is well settled in this state by a long line of cases that a pledge of rents and profits remote from the granting clause does not, in itself, create any lien upon such rents and profits. Owen v. Fink, 218 Iowa 412, 255 N.W. 459; Andrew v. Home Savings Bank, 215 Iowa 401, 246 N.W. 48; Sheakley v. Mechler,199 Iowa 1390, *Page 418
203 N.W. 929. It is equally well settled that such a clause does become effective and creates a chattel mortgage lien when the payments on the mortgage are in default and action is brought to foreclose and for the appointment of a receiver. Andrew v. Haag, 215 Iowa 282, 245 N.W. 436; Equitable Life Ins. Co. v. Read, 215 Iowa 700, 246 N.W. 779. It follows that where there are two mortgages covering the same property and containing such a clause, the one which first starts action to foreclose obtains the first lien. Andrew v. Haag, supra. These general propositions do not seem to be seriously in dispute between the parties, nor to have been ignored by the trial court.
The trial court found that they were not applicable to this situation, however, for two reasons: First, because the provisions of chapter 181 of the Acts of the 45th General Assembly (§ 12383-e1, C., '35) changed the rule and made the lien of pledges of rents and profits in real estate mortgages covering the same land of the same priority as the lien of the mortgages on the real estate in which they are contained; and, second, that the lien of such provision in the second mortgage in the case at bar became junior to such provision in the first mortgage by reason of the fact that there was incorporated in the second mortgage a provision that it was, "subject to a first mortgage to the First Trust Joint Stock Land Bank of $10,000.00". The correctness of the court's ruling on these two propositions is the battleground of this appeal.
I. If chapter 181 of the Acts of the 45th General Assembly (§ 12383-e1, C., '35) is applicable in this situation, it has the effect of making the pledge of the rents and profits in the second mortgage junior to the pledge of the rents and profits in the first mortgage. See Section 1, chapter 181, Acts of the 45th General Assembly. That act became effective on March 2, 1933. It provides, in terms, that it shall not affect pending litigation. Section 4. Long before it became effective and on December 5, 1931, L.A. Andrew, who was the predecessor of D.W. Bates, as receiver for the Agency Savings Bank, had commenced an action to foreclose the second mortgage in this case and for the appointment of a receiver to collect the rents and profits, and such action was pending when chapter 181, Acts of the 45th General Assembly, became effective. Appellee's contention is that the pendency of that action was not "pending litigation" within the meaning of the saving clause in the Act of the 45th General *Page 419
Assembly, because appellee was not a party to that action. But the only necessary party to the action brought by the holder of the second mortgage was Armstrong, who gave the mortgage and who owned and lived upon the land covered by the mortgage at the time the action was instituted. There was no need of making appellee, the holder of the first mortgage, a party at the time the action was commenced. Where an action has been commenced and all parties necessary at the time of its institution are made parties thereto, it is difficult to see why it is not pending litigation. If we say now that chapter 181 applies in this case, and that by reason thereof the plaintiff in that action has lost a right which he had when his action had been commenced, we would be holding that the act of the legislature took away from a plaintiff in a pending case something which he had when the act was passed. Such a holding would necessarily be a holding that pending litigation was affected by the act. That is the very thing forbidden by the terms of the act itself. It is obvious, therefore, that we cannot so apply the act as to take away from a plaintiff in an action pending when the act was passed a right which he had acquired by the institution of such action without violating the provisions of the act that it shall not apply to pending litigation. It is equally obvious that to hold that the saving clause of the act applies only to pending litigation between the holders of mortgages covering the same land would be to write into the saving clause of the act something which is not there.
Counsel for appellee argues, however, and the trial court seems to have been intrigued by the idea, that by the application of the act of the 45th General Assembly nothing would be taken away from appellant; that he did not acquire a lien on the crops or income for the year 1934, by his action started in 1931, and did not have such a lien in 1933, when the legislative act was passed; that he could not have such a lien because the crops for 1934 were not then in existence. The argument necessarily assumes that the holder of a real estate mortgage containing a pledge of the rents and profits who has started action to foreclose and to have a receiver appointed has no greater claim to future rents and profits than the holder of such a mortgage who has not started action to foreclose. Therein lies its fallacy.
It is true that there can be no lien upon crops not in *Page 420
existence. It is equally true, however, that a mere pledge of rents and profits in a real estate mortgage does not create any right to rents and profits whatever. Such a clause is construed with the defeasance clause and has no life breathed into it until there has been default, and action to foreclose and have a receiver appointed has been commenced. It is well settled, however, that when the holder commences such an action, as the holder of the second mortgage did in this case, that such a pledge then comes to life and begins to speak and is a lien from that date, not only upon the crops in being, but those to be grown thereafter until the expiration of the period of redemption. Of course, as to crops and rents not yet in existence, there can be no actual lien, but there is a definite right created. That right may not be easy of definition or description, but its existence has been repeatedly recognized by this court. It has been called a potential lien, an equitable lien, and lien on property having a potential existence. But whatever it be called, and whatever be the philosophical process by which it is carried over from the time it is created until it attaches to crops in being, there is no mistaking the fact that during that interval the structure of the lien is there as to future crops. Nothing remains but for the crops to grow into it. All our cases dealing with the question recognize that the lien created by the action to foreclose and the application for a receiver is not limited to crops then in existence. No distinction is made in any of those cases between the crops in being when action is commenced and crops to be grown thereafter. Under the rule of those cases, including the case of Equitable Life Insurance Co. v. Read, 215 Iowa 700, 246 N.W. 779, the right to the lien becomes fixed as of the time the action to foreclose is commenced and is applicable to crops to be grown in the future and is superior as to those crops to any other right to such a lien not previously created. Appellee's argument concedes, and the trial court held that the holder of the second mortgage under our decision would be ahead (except for the provisions of chapter 181, Acts of the 45th General Assembly). This, in itself, is a recognition that the holder of the second mortgage by his action to foreclose acquired something more than has the holder of a mortgage containing a pledge of rents and profits on which no action to foreclose has been commenced, and that such holder obtained a superior claim on *Page 421
future crops, rents, and income until the expiration of the period of redemption.
Obviously, if it be said that the holder of the second mortgage in this case had no superior right to the crops of 1934 because of the provisions of chapter 181, Acts of the 45th General Assembly, then it cannot be said that said chapter is applicable because it does not affect the rights of the holder of the second mortgage. To do that would be to argue in a circle. We come back to the proposition that, unless we apply the act, we must recognize the superior right of the holder of the second mortgage who started his foreclosure action first. If we apply the act, we take away from a plaintiff in an action pending when the act was passed a right which he had acquired by virtue of having started said action. We are forbidden to do that by the clause in the act which says it shall not affect pending litigation.
This case is ruled by the decision of this court in First Trust Joint Stock Land Bank of Chicago v. Smith, 219 Iowa 658, 259 N.W. 192. The holders of the mortgages and the form of the mortgages in that case are identical with the case now at bar. While the fact is not stressed in the opinion, the record in that case fails to show that the holder of the first mortgage was a party to the action to foreclose the second mortgage pending when chapter 181, Acts of the 45th General Assembly was passed. It further appears from the record in that case that a part of the rents or issues there in controversy was not in being when the action to foreclose the second mortgage was commenced and when chapter 181, Acts of the 45th General Assembly became effective.
[2] II. The second proposition on which the trial court based its ruling involves the proper interpretation of the provision of the second mortgage immediately following the description of the land in the mortgage. It is as follows: "Subject to a first mortgage to the First Trust Joint Stock Land Bank of $10,000.00." It will be noticed that the provision subjecting the grant of the lien to the mortgage of the First Trust Joint Stock Land Bank is inserted immediately following the description of the land and before the attempted grant of the lien upon the crops grown on the land. Strictly, therefore, it is the grant of the lien on the land which is made subject to the *Page 422
Land Bank's mortgage, and not the grant of any lien on the crops.
The argument is that by reason of accepting a second mortgage containing the foregoing provisions, the holder is equitably estopped from now asserting that he holds the lien on the crops superior to that of the first mortgage. The short answer to that argument is that we have repeatedly held that as against the maker of such a mortgage who specifically promises and pledges the crops to the payment of the debt, there is no lien until action to foreclose has been commenced. Such, we say, is the correct interpretation of the promise or grant. If the man who makes the grant is not equitably estopped, how can it be claimed that the holder of a second mortgage who takes a right subject to the grant is equitably estopped? If the pledge, properly interpreted, does not create a right against the maker of it until action to foreclose has been commenced, it creates no such right against a third person who did not make the pledge, but who accepted a grant subject to it.
The case is not substantially different from that of Lynch v. Donahoe, 205 Iowa 537, 215 N.W. 736, 218 N.W. 144, where the second mortgage contained a covenant that the land was free from encumbrance except a mortgage in favor of the Midland Mortgage Company. It is true that in that case we recognized that the parties might by appropriate language make the pledge of rents and profits in the second mortgage junior to any right which the holder of the first mortgage might subsequently acquire therein. The quoted language from the second mortgage in this case, however, does not even deal with that subject. It would be an unusual case, indeed, where the provisions of the second mortgage could be relied upon as extending and enlarging the right which the holder of the first mortgage acquired under his own mortgage. The obvious purpose of the quoted language from the second mortgage in the instant case was to give notice of the existence of the first mortgage on the land. It probably would estop the holder of the second mortgage from asserting there was no lien on the land in favor of the First Trust Joint Stock Land Bank of Chicago for $10,000. It might even estop the holder of the second mortgage from asserting that the first mortgage was not in all respects what it purported to be. But it would be a rare case, indeed, where a *Page 423
provision of a second mortgage would enlarge the rights which the first mortgage purported to vest in the holder.
The cases on which appellee relies at this point are all cases where the holder of the second mortgage has been held to be estopped from asserting the invalidity of the first mortgage lien when he has taken his lien subject to it. They are not applicable in the present situation because no question of the validity of the lien is involved. The holder of the first mortgage here is not denied a lien on the rents, crops, issues, and profits because the attempt to grant such a lien is invalid. On the contrary, we have held the grant of such a lien is valid, as where there is a chattel mortgage provision in the granting clause. The refusal to recognize that a lien on rents and profits has been created where there is a mere pledge, as in plaintiff's mortgage, is based on the interpretation of the instrument. It is held that the parties, by their contract, did not intend that pledge to become operative until there had been a default and action to foreclose had been commenced. The pledge is construed as a part of the remedy provided in the mortgage in case of default. It is obvious, therefore, that the holder of the second mortgage is not challenging the validity of the first mortgage, nor is he even claiming that it does not do what it purports to do. There is no dispute here but what the land is subject to a mortgage of $10,000 in favor of the First Trust Joint Stock Land Bank, but that mortgage, properly interpreted as between the parties to it, gives the holder of the mortgage no interest in the rents and profits until default and action to foreclose and have a receiver appointed has been commenced. That contract cannot be held to mean one thing as between the parties and another thing as between one of the parties and a third person. The interpretation of the mortgage applicable between the parties to the mortgage is equally applicable between the holder of the mortgage and a subsequent owner or subsequent mortgagee who takes subject to the mortgage.
We are of the opinion, therefore, that the trial court was in error in holding that the rule ordinarily applicable would not apply in this case because of the provisions of chapter 181, Acts of the 45th General Assembly, and because of the further fact that the second mortgage contained a provision that it was subject to a first mortgage in favor of the First Trust Joint Stock Land Bank of Chicago for $10,000. It follows that the *Page 424
judgment of the trial court must be, and it is hereby, reversed. — Reversed.
KINTZINGER, C.J., and ALBERT, ANDERSON, MITCHELL, and HAMILTON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431227/ | Plaintiff-appellant has been engaged in the practice of dentistry since 1906. The last ten years he has confined his practice to plate work only. He owns and maintains a chain of five dental offices in Iowa. It has been his practice to advertise extensively through the newspapers by means of narratives or short stories extolling the superiority of his work, illustrating *Page 615
his advertisement with a photograph or cut of his plate work. Special sales were featured and special prices quoted. Attractive signs were used at his several offices. Each office was in charge of a regular licensed dentist and a laboratory technician. In connection with his practice his several offices were furnished with equipment valued at approximately $10,000. By this means he had acquired a large practice and established a substantial business.
In May, 1935, the legislature enacted a law placing more stringent limitations on advertising by those engaged in the practice of dentistry and dental hygiene in this state. Chapter 24, Acts of the 46th General Assembly, now contained in Chapter 121, Title VIII, Code of Iowa, 1935, and more particularly section 2573-g16 of said Code defines "Unprofessional conduct". This section reads as follows:
"2573-g16. As to dentists and dental hygienists `unprofessional conduct' shall consist of any of the acts denominated as such elsewhere in this title, and also any other of the following acts:
"1. All advertising of any kind or character other than the carrying or publishing of a professional card or the display of a window or street sign at the licensee's place of business; which professional card or window or street sign shall display only the name, address, profession, office hours and telephone connections of the licensee.
"2. Exploiting or advertising through the press, on the radio, or by the use of handbills, circulars or periodicals, other than professional cards stating only the name, address, profession, office hours and telephone connections of the licensee.
"3. Employing or making use of advertising solicitors or publicity agents or soliciting employment personally or by representative."
Acts of misconduct mentioned in the last section as being found "elsewhere in this title" are not involved in this contest. It is the limitation placed on advertising that raises the serious question which we are called upon to determine.
After the passage of this act, plaintiff contacted H.B. Carlson, Attorney, Director of Investigation of the State Department of Health, and was told by him that he would have to comply with this law or subject himself to the penalties which the statute *Page 616
provided. In October, 1935, plaintiff brought this suit in equity, attacking the law on constitutional grounds, alleging that as a result of said law and the impending threats, he was precluded from advertising, and as a consequence has lost substantial sums in his practice, and if forced to abide by this law, will suffer irreparable injury and damage; that much of his valuable office equipment will be rendered worthless, for the recovery of which he is afforded no adequate remedy at law; that he will be deprived of liberty and property without due process of law; that the limitation upon the scope of advertising is unreasonable, arbitrary, whimsical and capricious and has no fair or reasonable relationship to the protection of the public health, safety, morals, or general welfare of the people of this state; that it unnecessarily, unjustifiably and illegally restrains and prevents freedom of speech, is indefinite, ambiguous, and uncertain in its terms, is an invalid exercise of the police power, and is class legislation, discriminatory in character as against those engaged in the practice of dentistry, granting unto others privileges and immunities not granted to plaintiff, all in violation of sections 1, 6, 7, and 9, Article I, and section 9, Article III, of the Constitution of Iowa, and the Fifth and Fourteenth Amendments to the Constitution of the United States; that said law constitutes an unreasonable restraint of trade, and illegally impairs and abridges, and is in derogation of plaintiff's right of contract and violative of sections 9 and 21, Article I, of the State Constitution, and the Fifth and Fourteenth Amendments to the Federal Constitution; also that Rules 25, 26, 27 and 28 of the Department of Health are unintelligible and confusing, arbitrary and unreasonable, and have no fair or reasonable relationship to the protection of the health; that the state had no authority to delegate power to promulgate such rules to the State Department of Health, and said rules constitute a usurpation of legislative authority and are void, and in contravention of sections 1, 6, 7, and 9 of Article I and section 1, Article III of the State Constitution and the aforesaid Fifth and Fourteenth Amendments to the Federal Constitution; that section 1 of chapter 24, Acts of the 46th General Assembly is unconstitutional and void, in that it attempts to repeal section 2448 of the 1931 Code of Iowa, and there is no proper mention of this in the title to the act, and that said act contains more than one subject and which subject is not expressed in the title to said act, as required by section 29, *Page 617
Article III, of the Constitution of the State of Iowa; and praying that said law and rules be held unconstitutional and void as violating the aforesaid provisions of the State and Federal Constitutions; that an injunction issue restraining the defendants from enforcing said law and rules, and for general equitable relief. Separate answers were filed, denying generally the allegations of petition.
Statutes regulating the practice of medicine clearly fall within the police power of the state, Smith v. Medical Examiners,140 Iowa 66, 117 N.W. 1116. The practice of dentistry naturally falls under the same rule of law. Concerning constitutional limitations as affecting the exercise of police power of the state, this court said (Fevold v. Board of Supervisors, 202 Iowa 1019, 1026, 210 N.W. 139, 142):
"Neither the Fourteenth Amendment nor any other amendment was designed to interfere with the police power of the state to prescribe regulations to promote health, peace, morals, education, and good order of the people."
This court also said (Peverill v. Board of Supervisors,208 Iowa 94, at pages 115, 116, 222 N.W. 535, 545):
"The due process rule is not a limitation upon the right of the state to exercise its police power unless the attempted exercise of such power is arbitrary or unreasonable or an improper use of such power."
"Police power is constantly exercised by the state; yet a definition of such power has never been definitely and precisely formulated. In fact, public policy rather demands that there be no specific definition. See Stettler v. O'Hara, 69 Or. 519, 139 P. 743, L.R.A. 1917C, 944, Ann. Cas. 1916A, 217. Each case as it arises must be determined according to its own facts. State v. Schlenker, 112 Iowa 642, 84 N.W. 698, 51 L.R.A. 347, 84 Am. St. Rep. 360." Loftus v. Dept. of Agriculture, 211 Iowa 566, 571, 232 N.W. 412, 415.
In State v. Hanson, 201 Iowa 579, at page 584, 207 N.W. 769, 771, this court said:
"The delegation by the legislature to inferior tribunals of authority to revoke certificates or licenses to practice medicine has been uniformly sustained by the courts of this country, as *Page 618
within the police power. Green v. Blanchard, 138 Ark. 137, 211 S.W. 375, 5 A.L.R. 84; Smith v. State Board of Medical Examiners,140 Iowa 66, 117 N.W. 1116; Thompson v. State Board of Medical Examiners, 59 Colo. 549, 151 P. 436; Indiana Board of Pharmacy v. Haag, 184 Ind. 333, 111 N.E. 178. The function of the board in the proceedings under the statute is ministerial or quasi judicial. Smith v. State Board of Medical Examiners, supra; Traer v. State Board of Medical Examiners, 106 Iowa 559, [76 N.W. 833]. * * * Due process of law requires only that the proceedings shall be uniform and regular, and that notice be given the accused, together with opportunity to be heard. Smith v. State Board of Medical Examiners, supra; Louisville N.R. Co. v. Schmidt,177 U.S. 230, 20 S. Ct. 620, 44 L. Ed. 747."
[1] The possession by the plaintiff of a certificate to practice the profession of dentistry is a valuable right which cannot be taken away without due process of law. Smith v. Medical Examiners, supra. The constitutional requirement of due process, the essential elements of which are notice and an opportunity to be heard, is not invaded where the statute provides for notice and hearing before a legally constituted tribunal, with a right of appeal to the court. The statutes of this state, relating to revocation of licenses or refusal to renew the license of one engaged in the practice of dentistry, make ample provision for notice and hearing. In this state two methods are provided by which one who is already the holder of a license to practice dentistry may be deprived of such privilege: (1) By direct action in the district court of the county in which the licensee resides to revoke the same, based upon certain grounds enumerated in the statute. See section 2492 et seq. of the Code of Iowa, 1935. This procedure applies to all the basic sciences, including dentistry, and is not challenged in this suit. (2) The second method has reference to the procedure by which the commissioner of the State Department of Health may refuse to renew such license. It will require but a casual reading of the provisions of this amendment dealing with the practice of dentistry and dental hygiene to disclose that ample provision has been made for notice and hearing and for appeal to the court. On appeal the case is triable de novo, thereby in every respect meeting the requirements of due process. See Code section 2573-g2 et seq. *Page 619
[2] Appellant contends that there is a third method by which he may be deprived of his license without a hearing of any kind, which is found in section 2441 of the 1935 Code, which reads as follows:
"The department may refuse to grant a license to practice a profession to any person otherwise qualified upon any of the grounds for which a license may be revoked by the district court."
This statute, in substance, was included in the Code of 1897. It must be construed with the other provisions of the law contained in Title VIII of the Code which have been more recently enacted, and when this is done, section 2441 must be held to apply to the granting of a license to practice dentistry in the first instance, and since the plaintiff is now the holder of a license duly and legally issued, he is not concerned with this section of the Code. Unless he has violated some of the provisions of the statute applicable to his profession, he is entitled to a renewal of his license as a matter of right, by complying with sections 2573-g2, 2573-g3, 2573-g4 of the Code of 1935. Manifestly, if, after a hearing in either of the two above mentioned statutory methods, one's license has been revoked or it has been found and determined that the holder of such license is not entitled to have the same renewed, it would amount to a judicial determination that he was not entitled to the possession of a license to practice his profession, and if thereafter he seeks re-admission or re-instatement, it would be a matter within the sound discretion of the State Department of Health whether he is again granted a license to practice his profession, and under section 2441, a license might then be refused upon any of the grounds for which a license may be revoked by the district court. Provision is made in chapter 121, Title VIII of the 1935 Code, relating to the practice of dentistry, for re-instatement of a former licensee whose application for renewal of license has been rejected by the commissioner, and who has not successfully prosecuted an appeal therefrom, and also for re-instatement of a lapsed license, where any former licensee has allowed his license to lapse by failing to file application for renewal of the same. See sections 2573-g13 and 2573-g14 of the Code, 1935.
There is no merit in appellant's contention that chapter 24, Acts of the 46th General Assembly, attempts to repeal section *Page 620
2448, Code of 1931, and in the title to the act this section is not mentioned. The amendment which affected section 2448 was in fact attached to section 2447 and section 2447 is mentioned in the title to the act. Neither is appellant entitled to complain on the ground of class legislation, or that the act is in derogation of plaintiff's right of contract. Both of these questions were involved in the recent case of Semler v. Oregon State Board of Dental Examiners, et al., 148 Or. 50,34 P.2d 311, 313, and the law was upheld by the Oregon court and on appeal to the United States Supreme Court (294 U.S. 608, 55 S. Ct. 570, 572, 79 L. Ed. 1086) was likewise upheld by this court. Hence, there is no basis for appellant's charge of unconstitutionality on either of these grounds. See also, Priest v. Whitney Loan Trust Company, 219 Iowa 1281, 261 N.W. 374.
[3] There is but one constitutional question of sufficient merit to warrant our serious consideration, namely, whether or not the limitations upon advertising are so arbitrary and unreasonable as to constitute an unlawful restraint and infringement and interference with the plaintiff's inherent right to carry on a lawful vocation. We do not understand that appellant questions the right of the state, under the police power, to reasonably regulate the practice of dentistry; but appellant strenuously contends that such legislation must bear a fair relation to the public health, morals, safety or general welfare of the people, and he contends that so long as there is nothing untruthful in the advertising matter, that the public welfare is not affected adversely.
The burden of proof is upon the appellant to show that the act of the legislature in question violates some of the constitutional provisions relied upon by him. This proof must be clear and satisfactory. All presumptions are in favor of its constitutionality, and a statute will not be held unconstitutional unless its contravention of constitutional guaranties is so clear, plain and palpable as to leave no reasonable doubt on the subject, and where the language is reasonably susceptible of different meanings, the courts will lean to that construction which is consistent with its validity. City of Des Moines v. Manhattan Oil Company, 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322; State v. Manning,220 Iowa 525, 259 N.W. 213; Priest v. Whitney Loan Trust Company, supra, at page 1286; Loftus v. Department of Agriculture, supra. *Page 621
We have given careful consideration to this phase of the matter and have carefully read and considered all the authorities cited, and we are satisfied that the weight of modern authority is against the appellant's contention. The most conclusive answer to all of plaintiff's contentions is found in the opinion of Justice Hughes of the United States Supreme Court, recently handed down in the Oregon case, Semler v. Oregon State Board of Dental Examiners, supra. It is true that the Oregon statute is not in the same language, but it does strike at the same evil as the Iowa statute. The Oregon statute undertakes to limit advertising by specifically barring all advertising methods enumerated, which include practically every means by which a dentist could publicize his business, except by professional card, or ordinary window or street sign. The Iowa statute takes the other way around and bars all advertising except those methods specified in the statute. This Oregon statute was attacked on the very grounds that appellant has raised in this case, and special consideration was given to the question of truthful advertising and in respect to this matter the opinion of the United States Court states:
"Recognizing state power as to such matters, appellant insists that the statute in question goes too far because it prohibits advertising of the described character, although it may be truthful. He contends that the superiority he advertises exists in fact, that by his methods he is able to offer low prices and to render a beneficial public service contributing to the comfort and happiness of a large number of persons.
"The state court defined the policy of the statute. The court said that while, in itself, there was nothing harmful in merely advertising prices for dental work or in displaying glaring signs illustrating teeth and bridge work, it could not be doubted that practitioners who were not willing to abide by the ethics of their profession often resorted to such advertising methods `to lure the credulous and ignorant members of the public to their offices for the purpose of fleecing them.' The legislature was aiming at `bait advertising.' `Inducing patronage,' said the court, `by representations of "painless dentistry," "professional superiority," "free examinations," and "guaranteed" dental work' was, as a general rule, `the practice of the charlatan and the quack to entice the public.' *Page 622
"We do not doubt the authority of the State to estimate the baleful effects of such methods and to put a stop to them. The legislature was not dealing with traders in commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the market place."
The Dental Practice Act of Illinois (Smith-Hurd Ill. Stats. ch. 91, section 72b) is more rigid and exacting with reference to advertising than the Iowa law and in the case of Winberry v. Hallihan, 361 Ill. 121, 197 N.E. 552, 555, the supreme court of Illinois sustained the law. The Illinois statute limited the size of a professional card and the height of the letters on the window card. It is a well-considered case, and follows the reasoning of the Oregon case and distinguishes the holding in these modern cases from some of the older cases relied upon by appellant. We quote with approval the following from said case:
"The question is presented whether the size, style, and manner of dental advertising and advertising prices bear such a relation to the public health as to justify legislative control through the police power. That power has repeatedly been held to include detailed regulation of surgery, medicine, and dentistry. Dent. v. West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623; Hawker v. New York, 170 U.S. 189, 192, 18 S. Ct. 573, 42 L. Ed. 1002; Reetz v. Michigan, 188 U.S. 505, 23 S. Ct. 390, 47 L. Ed. 563; Douglas v. Noble, 261 U.S. 165, 43 S. Ct. 303, 67 L. Ed. 590; People v. Witte, 315 Ill. 282, 146 N.E. 178, 37 A.L.R. 672; People v. Walsh, 346 Ill. 52, 178 N.E. 343. The practice of professions has generally been held to be subject to licensing and to regulation under the police power. Professions are not subject to commercialization or exploitation. People v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901; Painless Parker v. Board of Dental Examiners, 216 Cal. 285, 14 P.2d 67. The argument that this legislation nullifies a right to pursue a trade or calling is unsound, because appellants have failed to distinguish between a trade and a profession. The advertising restrictions contained in this act bear a direct relation to public health and are well calculated to protect it. They are therefore within the legislative power to proscribe and prohibit." *Page 623
The state of Washington has a statute very similar to our own which specifically mentions certain kinds of advertising that may be done and prohibits all other kinds in a law regulating the practice of osteopathy, and the constitutionality of this law was challenged and upheld in the case of Laughney v. Maybury,145 Wash. 146, 259 P. 17, 54 A.L.R. 393, and the following pertinent language was used by the Supreme Court of Washington:
"We have no doubt that the regulation or prohibition was in response to the prevailing opinion and demands of the public, including the vast majority or nearly all of the osteopathic physicians and surgeons themselves, and that the legislature so understood it, not simply from the standpoint of professional ethics as argued on behalf of the appellant, but as suited and necessary for the common welfare. The view of the legislature as to the facts and necessity for the regulation we will not review or question. * * *
"`It may be stated generally that any one has a right to pursue any lawful calling, yet, in respect to certain vocations not in themselves unlawful, including the practice of medicine and surgery, the right is necessarily and properly subject to legislative restrictions or regulations from consideration of public policy.'"
Wisconsin also has a similar statute which was upheld by the Supreme Court of that state in the case of Modern System Dentists v. State Board of Dental Examiners of Wisconsin, 216 Wis. 190, 256 N.W. 922. The Wisconsin court correctly says that "such statutes are not passed for the purpose of promoting the personal ends of individuals, but are statutory enactments in the exercise of the police power of the state to legislate for the safety, health, and welfare of the people." Rust v. State Board of Dental Examiners, 216 Wis. 127, 256 N.W. 919, 921; Ex Parte Whitley,144 Cal. 167, 77 P. 879, 1 Ann. Cas. 13. See, also, Thompson v. Van Lear, 77 Ark. 506, 92 S.W. 773, 5 L.R.A. (N.S.) 588, 7 Ann. Cas. 154.
Appellant also argues that in an attempt to regulate the practice of dentistry, which is a lawful vocation, the legislature is destroying the plaintiff's right to practice the same. The weakness of this contention is found in the undoubted fact that these laws restricting advertising have the sanction of the dental *Page 624
profession as a whole. They are intended to preserve the profession, not to destroy it. Such laws are not enacted for the benefit of any class of individuals, but in the interest of the general public. In the sense that they tend to prevent an unseemly rivalry in a race for business, and preserve a rational, reasonable and ethical approach to the public and aid the profession in maintaining its service upon a high plane of efficiency, such laws may be said to be beneficial to the profession as a whole; but this is not the primary purpose of the law. It is but one of the beneficial and beneficient fruits of the law. By making unlawful all methods of advertising calculated to bait or allure the public, the quack, the charlatan and exploiter are deprived of any means of plying their art. Likewise, the member of the profession who would seek to commercialize the same by boosting himself through extensive use of methods of publicity, extolling the superiority of his services, thereby forcing his competitors into a race for business, to the demoralization of the high standards and established ethics of the profession — all of which worketh ill to the public — is successfully thwarted in his purpose. It is quite true that the authorities are not uniform in relation to this matter of truthful advertising, and many of the earlier cases may be cited to the effect that legislation of this character can only be directed toward eliminating advertising which is false and fraudulent, and intended to deceive the public. More recent cases seem to go deeper into the philosophy and purpose of such legislation. Justice Hughes in his opinion in the Oregon case hereinbefore referred to, calls attention to the fact that:
"The community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. And the community is concerned in providing safeguards nol only against deception, but against practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous. What is generally called the `ethics' of the profession is but the consensus of expert opinion as to the necessity of such standards."
The experience of mankind has shown that human greed and avarice, untrammeled and uncontrolled by law, will not *Page 625
hesitate to prey upon the frailties of over-credulous human beings. Those affected by real or imaginary ills are an easy prey and the unscrupulous as well as some of the more honorable but avaricious members of the profession, in disregard of the ethics of their profession, are many times overcome by the great temptation to become rich at the expense of humanity, with all its afflictions, and such have resorted to all the devices of the faker on the street corner and the skillful artisan of expert advertising and radio propaganda, some even going beyond the borders of the United States with their broadcasting stations, where they may exploit their victims without hindrance. Such methods are demoralizing to the profession and detrimental to society. The underlying purpose of legislation of this character is not especially aimed at the honest and honorable member of the profession who might be prone to use unethical means of calling attention to his superiority and indulge in what is referred to in some of the cases as "bait" advertising, truthful in itself. The object and aim of the statute is to strike at the charlatan and unscrupulous practitioner who makes use of the same or similar methods to entice and allure an unsuspecting and credulous public and by means of which they become victims of his quackery. Obviously, no legislation can be upheld which would apply alone to the quack, but such legislation must be general in its application and rest alike upon all members of the profession concerned, and it is the general aspect of the practice that must be dealt with. And if legislation of this kind, limiting the character and methods of advertising by members of the dental profession, becomes necessary to reach the unscrupulous in the interest of the public welfare — and this is a matter for thelegislature to determine — the adoption by the legislature of such rules and regulations does not invade or contravene the constitutional rights of the plaintiff, even though in particular instances some practitioner, like the plaintiff, may have been actuated by honest motives and no actual deception was used or misstatements made. The best interests of the public demand that members of a profession affecting the public health stand or fall on the merits of their services, and not on their skill in advertising.
Many laws intended to protect the public generally appear to, and in fact do, place unnecessary restraints upon the acts and conduct of men of honest motives and purposes. Pure food and drug acts and bulk sales acts almost universally adopted by *Page 626
the states prohibit the doing of things harmless in themselves in order to close the door against the commission of fraud, and such laws have been sustained as a valid exercise of the police power of the state. These laws are made necessary because there are those in society who must be restrained. Likewise, in our judicial procedure we find limitations and restrictions in regard to the methods of proof, such as the statute of frauds, and the commonly called "dead man's" statute, intended to shield the public against the perpetration of fraud. Quite often these limitations prevent the introduction of actual truth. These laws and regulations are deemed essential because without them the opportunity to commit fraud would be left open to the unscrupulous and dishonest individuals. Such laws and rules are the outgrowth of the experiences of mankind and represent the combined judgment and wisdom of the lawmakers of all time. As stated by the Oregon court in the Semler case, supra:
"Courts, with good reason, have refused to define police power for to do so might thus limit it to the detriment of the public welfare in the light of changing social and economic conditions. The law should follow closely in the wake of an advancing civilization. Regulation of professional conduct deemed unduly drastic ten years ago might well be considered reasonable under present-day conditions."
So, in relation to those vocations of life having to do with the health of individuals, such as the practice of any of the basic sciences, the sovereign state, through the exercise of its police power may enact such laws regulating and restricting the practice of such professions as the legislature in its wisdom may deem expedient, so long as such legislation is reasonable and appropriate to accomplish the legitimate purpose of the safeguarding of the public health. It was for the legislature to say whether or not it was necessary, in order to close the door against the unscrupulous practitioner, against perpetration of fraud and deception upon his patients, that all advertising except that designated in the statute be prohibited. That is the real pith of the controversy in this case. There is no claim that in itself there is anything harmful in advertising prices for dental work or displaying signs illustrating bridge work, or running stories in the newspapers, but we think it must be admitted that there are some dishonest and disreputable members of the profession who *Page 627
are not willing to abide by what is commonly called the ethics of their profession, and who make use of such methods of advertising, and the unsuspecting public and over-credulous members of society, unable to distinguish the true from the false, or the honest from the dishonest, are lured to the offices or lairs of the professional charlatans, who point to their array of expensive office equipment and over-stuffed furnishings to convince their unsuspecting patients of their superiority, and use this as an excuse for "fleecing them". In order to reach this evil and attempt to correct it, in the interest of the public welfare, individual rights must give way to the greater rights of the whole people. State v. Schlenker, supra; Priest v. Whitney Loan Trust Company, supra.
In the last analysis, when the legislature speaks through a valid exercise of the police power, it is the voice of the people speaking in defense or preservation of its own well-being, and while, under the Iowa statutes, the limitations on advertising are rigid, they are not too rigid when the purpose or aim of the law is considered. Plaintiff is not deprived of his right to practice his chosen profession. All advertising is not prohibited, and as applied to a profession, as distinguished from a trade or commercial business, considering the evil sought to be remedied, we cannot say that the limitations of the statute are arbitrary or unreasonable. We think the law bears a fair relation to matters of public health and the moral and physical welfare of the people. There is a presumption in favor of the validity of the act, and also a presumption that the legislature in enacting the same did so with a view of promoting the public welfare. The burden was on the plaintiff, and he has failed to sustain that burden. People v. Griswold, 213 N.Y. 92, 106 N.E. 929, L.R.A. 1915D, 538.
Appellant's contention that the law is ambiguous and uncertain is without foundation. The very purpose of enacting a statute prohibiting all advertising except certain definite kinds of advertising was to provide against uncertainty. Statutes of this character, containing language much more indefinite and uncertain have been upheld against the charge of uncertainty. For list of cases see annotation, 54 A.L.R. 400.
[4] Directing our attention to the appellant's claim that the rules of the Department of Health transcend the provisions of the statute, we find the rules complained of are as follows: *Page 628
"Rule 25. The Board of Dental Examiners recommend that dentists be permitted to carry or publish a professional card and to display a window or street sign at the licensee's place of business.
"Rule 26. A dentist may place on his professional card or window display a statement that he is limiting his practice. In that event the Board recommends that any words, other than the word `Dentist' be confined to the following: Dentist, practice limited to Orthodontia; Dentist, practice limited to Exodontia; Dentist, practice limited to Prosthodontia; Dentist, practice limited to Peridontia; Dentist, practice limited to Radiodontia; Dentist, practice limited to Pediodontia; these being the divisions recognized by the American Dental Association.
"And, furthermore, that in the affidavit form prescribed in 2573-g2 there will be a place provided where the dentist shall make a declaration of his practice limitations if he so states on his professional card or window display.
"Rule 27. The State Board of Dental Examiners interprets a professional card in a newspaper to mean a card one column wide and one inch deep.
"Rule 28. The Board interprets the law to mean that only one outside sign or window sign be permitted, the letters of which shall not exceed six inches in height, wording to be such as set out in Rule No. 26." (Italics ours.)
A casual reading of these rules will reveal that they are in the nature of recommendations to the dental profession to aid and guide them in interpreting and following the statutory law, relating to the practice of dentistry and dental hygiene, and do not in any sense transcend the standard fixed by the statute, and can in no just sense be said to be a law in and of themselves promulgated by the State Department of Health.
The case of Goodlove v. Logan, 217 Iowa 98, 251 N.W. 39, relied upon by appellant, is not a parallel case.
Certain opinions of the attorney general in reference to the interpretation of the statute were introduced in evidence and disclose some discrepancies between the interpretation made by the attorney general and that placed upon the law by the rules of the Department of Health. These discrepancies should be reconciled, and the rules should be revised to correspond with the interpretation placed upon the law by the legal advisor of *Page 629
the Department. The evidence shows that the Department of Health relies for its interpretation of the statute on the opinions of the attorney general, and in its dealings with the plaintiff has not insisted upon the recommendations and interpretations made by the Board of Dental Examiners, and approved by the Department of Health. We agree with the interpretation placed on the rules by the legal department, to the effect that the statute does not limit the size of professional cards or the height of the letters on the sign which may be used. This is a matter of taste. Likewise, the technical words in the recommendation contained in Rule 26 with reference to advertising practice limited to some specialty, may or may not be used, according to the tastes of each individual dentist. Simpler words, meaning the same thing, confined to the particular specialty to which the dentist limits his practice, could, of course, be used. It is suggested in argument that this law, and these rules would prohibit a dentist from giving notice of removal or change of location. Such interpretation of the law is not warranted. As well say he could not have his name in a telephone directory.
[5] Appellant's final complaint that the penalty provided for violation of section 2573-g16 of the Code is so drastic, severe and unconscionable as to render the entire act unconstitutional and void, is not well founded. If the acts of the legislature fixing the standard of conduct are valid, the resulting penalty of refusal to renew the license of one who has failed to comply with the statute has been uniformly upheld by the courts, and this is the only penalty imposed by statute for unprofessional conduct, as defined by section 2573-g16 of the Code. The provisions of section 2522 relating to fine and imprisonment have no application to unprofessional conduct by way of advertising. It would be just as logical to say that a member of the profession of dentistry or medicine or any other of the basic sciences could be fined and imprisoned for incompetency in the practice of his profession.
[6] Appellee's contention that plaintiff has no standing in a court of equity is wholly without merit. The enforcement of this law undoubtedly amounts to a serious restraint of plaintiff's prior methods of conducting a lawful vocation, and is a direct financial injury and damage to his business and if the law is unconstitutional and void, he certainly has a right to restrain its enforcement. Solberg v. Davenport, 211 Iowa 612, *Page 630
232 N.W. 477; Huston v. City of Des Moines, 176 Iowa 455, 156 N.W. 883; Cook v. Davis, 218 Iowa 335, 252 N.W. 754. Surely he isn't required to take the risk of forfeiting his license and forever being deprived of practicing his profession before he may proceed in equity, as he has in this case, to challenge the constitutionality of the law. Such course is the only adequate and safe method open to the plaintiff if he desires to be assured of the right to practice his profession, and it would indeed be an unjust and arbitrary rule which would require him to first proceed to openly violate the law and thus place himself and his property rights in jeopardy in order to place himself in a position to have determined the question of the constitutionality of the statute. The cases cited and relied upon by appellee are not parallel. In all of said cases the remedy at law was adequate, and under such circumstances it was held that a suit in equity for injunction would not lie. This practice seems to be quite general. It was the procedure used in both the Oregon and Illinois cases cited with approval herein. For other cases bearing on the questions involved in this opinion reference may be had to annotations in 5 A.L.R. 94; 74 A.L.R. 323; 54 A.L.R. 400.
The decree of the trial court is affirmed. — Affirmed.
PARSONS, C.J., and DONEGAN, RICHARDS, ALBERT, STIGER, and MITCHELL, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431229/ | Appellant is a resident of the city of Oskaloosa and has for many years been engaged in the business of making and selling photographs in said city. Having entered into a contract with a local theater to furnish it photographs of children living in said city to be displayed at said theater, he employed four persons to take photographs of children in the city to be developed and completed by appellants. The four employees, all of whom were nonresidents of the city, visited the homes of the city procuring photographs and delivering them to appellant. They were paid compensation upon a percentage basis. All the instrumentalities of the business and the photographs belonged to appellant. While thus employed, the four employees were arrested upon a charge of violating an ordinance of the city of Oskaloosa defining and providing punishment for peddlers and itinerant merchants operating within such corporate limits without first having procured a license. The parties arrested were convicted and a fine of $100 assessed against each of them, together with the costs incident to the prosecution.
This action to restrain the mayor of said city from further interfering with or prosecuting the employees of appellant under the ordinance referred to was commenced in July, 1932. A temporary writ of injunction was promptly issued. Final order and decree dissolving the temporary injunction was entered February 21, 1933. In the meantime, the appellee Davis, who was mayor at the time this action was commenced, had surrendered his place of power to George Burdock, his successor to the office of chief executive of said city. The municipality is not a party to this action.
It is the contention of the appellant that the ordinance complained of is, in part at least, invalid, and that, when properly construed, is not applicable to the situation presented in this case. On the other hand, it is contended by appellee that an action in equity will not lie to restrain the enforcement of a penal ordinance for the reason that the party aggrieved has a speedy and adequate remedy at law, and that, assuming the invalidity of the ordinance, full relief had already been given appellant under the temporary writ. *Page 337
As a general rule, a suit in equity will not lie to restrain the enforcement of a penal statute or ordinance, but, if it is made to appear that the plaintiff will suffer irreparable injury, and that there is no other speedy and adequate remedy at law, an injunction will lie. If the enforcement of an ordinance claimed to be invalid amounts to an invasion of property rights or results in irreparable injury to the plaintiff, such enforcement may be restrained by a court of equity. Huston v. City of Des Moines, 176 Iowa 455, 156 N.W. 883; Bear v. City of Cedar Rapids,147 Iowa 341, 126 N.W. 324, 27 L.R.A. (N.S.) 1150; Ewing v. City of Webster City, 103 Iowa 226, 72 N.W. 511; Mart Son v. City of Grinnell, 194 Iowa 499, 187 N.W. 471.
The record in this case is brief and not quite explicit as to some material matters. We gather, however, therefrom that no prosecution has been threatened or is contemplated by the former or present mayor of said city against appellant upon the theory that he has in any way violated the ordinance in question.
The contract between appellant and the local theater was, in virtue of the purpose thereof, necessarily, more or less, temporary in character. We find nothing in the record tending to show that any of the alleged offending employees were present in said city or contemplate further solicitation or violation of the ordinance, if their acts amounted to such.
It is conceded that appellant is a resident of and has his principal place of business in the city of Oskaloosa. The former mayor repeatedly threatened to rearrest appellant's nonresident employees if they continued soliciting for photographs, but not appellant. There is nothing in the record in any way tending to show that the present mayor has in the past, or is now, threatening to in any way interfere with appellant in his business or to prevent his employees from soliciting and making photographs for him. The construction of the ordinance is an important question in this case. The right of municipalities to enact ordinances making reasonable provisions requiring peddlers and transient merchants to pay a license thereto is not only authorized by the statutes of this state, but has been many times upheld by the decisions of this court. The citation of authorities at this point is unnecessary. In so far as appellant may have a remedy in equity to enjoin the mayor of Oskaloosa from invading his property rights or working some irreparable injury to him under said ordinance, there is no apparent present occasion for invoking *Page 338
such remedy. There is no evidence of any threatened unlawful invasion of any of appellant's property or other rights in the proper conduct of his business. The present mayor, so far as the record shows, may place the identical construction upon the ordinance assailed for which appellant now contends. This court will not, in such situation, grant a permanent writ, nor decide hypothetical or moot questions of law. The judgment is affirmed. — Affirmed.
CLAUSSEN, C.J., and ANDERSON, MITCHELL, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431194/ | We confine our attention to the defense that by contract limitation the action is barred. The certificate sued on declares that no suit or proceeding "at law or in equity shall be brought to recover any benefits under this article after six months from the date claim for said benefits is disallowed by the Supreme Executive Committee." The accident alleged to have resulted in disability for which the benefits are claimed, occurred on July 22, 1919. Notice was given to defendant August 9, 1919, and the formal claim was received by it August 19, 1919. It appears that, on September 8, 1919, the Supreme Executive Committee took action upon the claim, and on September 11, 1919, defendant wrote the insured a letter, denying liability. The abstract and amendment are not as specific in setting out the evidence as they might be; but that the claim for benefits was *Page 429
disallowed in September, 1919, and that the insured received due notice thereof, is not disputed. The insured lingered until November, 1923, when he died. This action was commenced shortly thereafter.
Both parties make their references to the Code of 1924, the provisions of which, including the separation and titles of the chapters, so far as the questions here raised are concerned, are not different from those of the Code of 1897 and supplements. Following their example, our references will be to the Code of 1924.
Plaintiff takes the position that the defendant is an association under Sections 8685 and 8686, and that the limitation stipulation of the contract is void under Section 8774, providing as follows:
"No stipulation or condition in any policy or contract of insurance or beneficiary certificate issued by any company or association mentioned or referred to in this chapter, limiting the time to a period of less than one year after knowledge by the beneficiary within which notice or proofs of death or the occurrence of other contingency insured against must be given, shall be valid."
It will be noted that Sections 8685 and 8686 are a part of Chapter 400, entitled "Assessment Life Insurance." Section 8774 is by its terms limited to companies or associations "mentioned or referred to in this chapter," which is Chapter 401.
The defendant's articles of incorporation, its constitution, and the uncontradicted evidence show that the defendant is a fraternal beneficiary association, as defined by Section 8777. The plaintiff's petition alleges it to be "a mutual benefit association or fraternal order." By Section 8791 it is provided:
"Such associations shall be governed by this chapter, and shall be exempt from the provisions of the statutes of this state relating to life insurance companies, except as hereinafter provided."
The chapter containing these latter sections is Chapter 402, entitled "Fraternal Beneficiary Societies, Orders, or Associations." Section 8774, relied upon by plaintiff, is found in Chapter 401, entitled "Provisions Applying to Life Insurance Companies and Associations." By the express provisions of Section 8791, therefore, fraternal beneficiary associations are exempt *Page 430
from the provisions of Chapter 401, including Section 8774. It has also been decided by this court that the provisions of Chapter 401 are not applicable to fraternal beneficiary societies, and that they are governed by Chapter 402. Werner v.Fraternal Bankers' Reserve Soc., 172 Iowa 504; Smith v. SupremeLodge, 123 Iowa 676; Knapp v. Brotherhood of Am. Yeomen, 128 Iowa 566. Chapter 402 contains no restrictions upon the right of fraternal beneficiary societies to prescribe contract limitations. In the absence of statute (no question of reasonableness being involved), the contract limitation is valid, and must be enforced. Farmer's Co-op. Creamery Co. v. Iowa StateIns. Co., 112 Iowa 608. The defendant is a foreign association, but plaintiff makes no point because of that fact; and foreign, as well as domestic, associations are within the terms of the statute. Sections 8797, 8811. The action was brought long after the lapse of the time allowed therefor by the contract, and must be held to be barred. This conclusion renders it unnecessary to discuss defendant's further contention that the disability of the insured was not produced by any cause within the scope of the certificate.
The judgment is — Affirmed.
EVANS, C.J., and De GRAFF and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431199/ | The facts in this case are stipulated. H.J. Switzer died testate on October 11, 1921, leaving his surviving spouse, Cornelia Switzer, and two children, Mary May Morris, forty-one years of age, and Charles Clyde Switzer, thirty-nine years of age, both married and still living. The only children of Mary May Morris were Bonnie Boothe, Ruth Salyers, Dwight Morris, and Mary Edwards; and the only child of Charles Clyde Switzer was Olma Johnston, the plaintiff. Of these children of Mary May Morris, Mary Edwards died intestate in April 1930, leaving a husband, Ralph Edwards, but no children. Warren County is a defendant only as relates to taxes. Other parties named are wives and husbands of the children of Mary May Morris and Charles Clyde Switzer.
The will of H.J. Switzer, among the devises and bequests, has the following provision:
"Fifth. I give, devise and bequeath unto my wife Cornelia Switzer for and during the term of her natural life or as long as she remains my widow all of my real estate * * * [describing it] to have and to hold and to use the income and profits therefrom, but she is not to dispose of any of the real estate described in this clause, the said real estate described in this clause at the death of my wife Cornelia Switzer or at the time of her marriage should should she marry again to go to the children of my Daughter Mary May Morris and to the children of my Son Charles Clyde Switzer or to trustees for said grand children if any be not of age as provided in clause Six hereof, the said grand children to share equally in said property."
The sixth clause of the will provides that if the children, or any of them, of Mary May Morris or Charles Clyde Switzer, be not of legal age at the time of death of such parent or testator's wife, then the share of such grandchild or grandchildren *Page 203
be placed in the hands of the trustees named therein until such grandchild or grandchildren become of age.
The widow, Cornelia, died March 21, 1942. The interest of Ralph Edwards, surviving husband of Mary Edwards,in the land, was conveyed by quitclaim deed to Bonnie Boothe, Ruth Salyers, and Dwight Morris on June 30, 1942. The question to be determined is whether plaintiff is entitled, as she claims, to one fourth of the real estate, or, as defendants Bonnie Boothe, Ruth Salyers, and Dwight Morris assert in their counterclaim, only to one fifth thereof. The court ruled in favor of defendants and plaintiff appeals. No question is made here as to other provisions of the decree except attorney's fees.
Was the remainder to the grandchildren under the will vested at death of the testator or was it contingent, not vesting until the termination of the life estate? If vested, then the property should be divided into five shares, one share going to plaintiff, as decreed by the court. If contingent, then, Mary Edwards being dead at the termination of the life estate, the property should be divided into four shares, of which plaintiff would be entitled to one share.
I. The question of vested and contingent remainders has been the subject of much discussion. This court has been by no means consistent, and, as stated by the author of the annotations to Skelton v. Cross, 222 Iowa 262, 268 N.W. 499, in 109 A.L.R. 129, 154: "The Iowa decisions show * * * a decided variance in result." One division of such annotations, of several pages, is devoted entirely to Iowa decisions.
In Skelton v. Cross, supra, the terms of the will then under discussion transferred only a contingent remainder, and in his opinion Justice Hamilton reviews the difficulty had by this court in previous decisions as to the nature of remainders devised, citing many authorities.
[1] After considerable controversy, with decided variations in the results obtained from the language in the instruments considered and construed, we believe this court has of recent years more definitely and consistently determined the rules applicable to the character of vested interests of estates. The primary object in all cases is to determine the intent of the testator, and this, once determined, is controlling. *Page 204
The cases decided by this court are in great number, have been frequently reviewed, and it is unnecessary and would be a mere repetition to review herein all or many of the decisions of this court in relation to the question involved. However, a case of interest historically is Atchison v. Francis, 182 Iowa 37, 165 N.W. 587, L.R.A. 1918E, 1087, an opinion by Justice Weaver in 1917, in which the whole subject of vested and contingent remainders is fully discussed, citing practically all of the Iowa decisions up to that date, with many authorities from other jurisdictions, and the case is itself cited in many of our recent decisions:
"A vested remainder is one whereby the estate passes by the conveyance, but the possession and enjoyment are postponed until the particular estate is determined, — one where the estate is invariably fixed, to remain to certain determinate persons." In re Estate of Phearman, 211 Iowa 1137, 1144, 232 N.W. 826, 829, 82 A.L.R. 674.
Where the terms of the grant do not come within such definition we have frequently held that the remainder is contingent, as in our recent case of Jones v. Coon, 229 Iowa 756, 295 N.W. 162. The court there, in an opinion by Justice Oliver, found the devise not within the definition of a vested estate, providing, as it did, a contingency — the survival and solvency of the beneficiary — at the expiration of a trust period. The uncertainty of the beneficiary in that case is evident.
In Smith v. Harris, 227 Iowa 127, 133, 287 N.W. 255, 258, an opinion also by Justice Oliver, the provision of the will was that after a life estate the property should go to testator's surviving children, and the subject is thoroughly reviewed, with many citations, including Skelton v. Cross, supra. The decision approves the holding in that case and again upholds what is known as the common-law definition of contingent and vested remainders and repudiates certain older cases not in accord therewith, saying that:
"* * * the common law definitions had been adhered to by a majority of the court for a considerable length of time and that to again `turn about face' and apply the former rule `would render the confusion all the more confounding.'" *Page 205
The rule which we have cited has been adopted by this court after much controversy and, with some exceptions, has been held to be fully established. The cases cited thoroughly review our holdings.
Our last expression on this subject, found in the case of Peters v. Thoning, 231 Iowa 755, 759, 2 N.W.2d 76, 78, in an opinion by Justice Stiger, reaffirms the doctrine in a case wherein the questions were mainly equitable conversion or reconversion:
"There is no merit to the suggestion in the record that the gift to the children was contingent. The beneficiaries of the remainder interest are definite and certain and they had a present right at the death of the testator to the enjoyment of the gift at a certain time in the future — the death of the life tenant."
This has been the trend of our more recent holdings, and we are satisfied that, following and in line with such decisions, the will here in question provides that at the death of the testator the beneficiaries described had a vested interest in the land of the remainder estate, the grandchildren — that is, the children of Mary May Morris and Charles Clyde Switzer — to share equally. There is nothing in the language of the will to indicate to the contrary. There is no provision here that the share shall go to the testator's children "if living," "then in being," "surviving children." "if he survive," or language of similar import expressing contingency, such as is frequently found in the cases where the interest devised was held to be a contingent remainder, as in Smith v. Harris, supra. Nor is there any gift over of the interest of any grandchild who dies before the termination of the life estate. We are satisfied that the will indicates the intention that the children specified did, at testator's death, take a vested interest subject to the life estate. This holding is in conformity with the rulings in the cases cited by appellee: In re Estate of Phearman, supra; Blair v. Kenaston, 223 Iowa 620, 273 N.W. 184; Boehm v. Rohlfs, 224 Iowa 226, 276 N.W. 105.
[2] Appellant argues that the remainder here being to a class, such a contingency is created that the estate would not *Page 206
be vested. However, we believe it to be the rule that when there is an immediate gift to a class of persons it vests in members of that class who are in existence at the time of the testator's death, unless a definite intention to the contrary appears from the context of the will — as is argued by appellees. It is not uncommon that a vested interest occurs in certain members of a class subject to reopening to let in after-born children or others of the same class as devisees.
"Where there is an immediate gift over to a class of persons, it vests in the members of the class who are existent at the time of the execution and delivery of the deed, unless a different intention appears from the context of the instrument, and such vested remainder will open to let in members of the class who may be born during the continuance of the precedent estate. The birth of other children to the life tenant would not change the quality or character of the estate, but only the extent of it." Blair v. Kenaston, supra, at page 626 of 223 Iowa, page 187 of 273 N.W., citing cases.
See, also, Restatement of the Law, Property, Vol. 2, 541, 552, section 157m.
[3] It is a principle long established that the law favors the vesting of estates when not in contravention to some established rule of law or public policy, and unless it clearly appears the devise was intended to be conditional it would tend to vest upon the death of the testator. Boehm v. Rohlfs, supra, and cases cited therein; Atchison v. Francis, supra. We are satisfied that under the rules heretofore established the estate devised by the will in remainder is vested and not contingent. We conclude each of the five grandchildren received a one-fifth interest in the land, which, in the case of the three appellees, was augmented by the one-fifth interest conveyed by the husband of the deceased grandchild, making each of said three appellees the owners of four fifteenths, or four fifths in all, and the appellant thus being the owner of three fifteenths, or one fifth.
[4] II. A second objection to the decree is made by appellant, that is, to the refusal of the court to allow attorney's fees in favor of plaintiff's attorney. Appellant argues that under the facts in this case the court was in error in refusing to *Page 207
allow attorney's fees in favor of plaintiff's attorney. Appellant cites no authority for her position except section 12340, Code of 1939, which provides for attorney's fees. However, in a partition suit where the only contest is over the title it has been definitely held in this state that no attorney's fees can be allowed to plaintiff's attorney. While a different provision appears in Rule 293 of the new Rules of Civil Procedure, this appeal was perfected prior to the taking effect of such rules and would be governed by the provisions of sections 12339 and 12340 of the Code of 1939. Under the former Code rule this matter came up at various times.
In the case of Everett v. Croskrey, 101 Iowa 17, 18, 69 N.W. 1125, cited by appellees, the court says: "The issue tried was whether the defendant owned one-sixth of the land, as stated in the petition, or one-half thereof, as alleged in the answer." The court refused to allow attorney's fees, citing and quoting from McClain v. McClain, 52 Iowa 272, 275, 3 N.W. 60, 63:
"`While in form this is an action for partition, yet it is essentially an action to determine the title, which was in dispute. We do not think, in such a case, the fees of plaintiff's attorneys should be taxed as part of the costs.'" Citing further, Duncan v. Duncan, 63 Iowa 150, 18 N.W. 858. The court goes on to say: "The statutes contemplate the payment of plaintiff's attorneys for services essential to the accomplishment of actual partition of the real estate, by all parties, in proportion to their interests. Attorney's fees, however, for services rendered in the determination of issues wherein the title to, or some interest in the property is in controversy, should not be allowed or taxed as part of the costs."
See, also, Todd v. Stewart, 199 Iowa 821, 202 N.W. 844, and cases cited; and Oziah v. Howard, 149 Iowa 199, 128 N.W. 364.
The court properly held that attorney's fees should not be taxed.
The decree of the district court should be, and is, affirmed. — Affirmed.
All JUSTICES concur. *Page 208 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431200/ | Decedent, Ralph Birch, transported and sold products of defendant by truck on a regular route. On July 24, 1938, on his return trip, Birch was traveling south on the west side of a graveled highway. There was a ridge of gravel about twelve inches high and twelve inches wide made by a road scraper on the west side of the highway and about two feet from a ditch on the west side of the highway about two feet deep and ten feet wide. When Birch was a mile and a half south of Treynor his left rear tire went flat. After the tire was repaired and he had driven south a quarter of a mile his right front wheel entered and traveled in the ridge of gravel for about 20 feet. The truck then traveled from 30 to 40 feet with the right wheels between the ridge of gravel and the ditch and then went into the ditch where the car overturned and crushed Mr. Birch who died before he could be removed from under the car.
The accident happened about 6:20 P.M. The material parts of sections 1376 and 1453, 1939 Code read:
"1376 Wilful injury — intoxication. No compensation under this chapter shall be allowed for an injury caused:
"2. When intoxication of the employee was the proximate cause of the injury."
"1453 Decision on appeal. Any order or decision of the industrial commissioner may be modified, reversed, or set aside on one or more of the following grounds and on no other:
"4. If there is not sufficient competent evidence in the record to warrant the making of the order or decision."
The defense to the claim is that Birch was intoxicated and his intoxication was the proximate cause of the injury.
The industrial commissioner found that the evidence was not sufficient to show that the injury sustained by the deceased was due to intoxication and that the injury was "due to an inadvertence of the right front truck wheel coming in contact with a row of loose material along the right hand side of the roadway which pulled the truck westward into the ditch." *Page 359
The issue is whether the evidence supports the finding of the commissioner.
Plaintiff's claim is based on circumstantial evidence referring principally to the condition of the road and the tire tracks. We will refer briefly to plaintiff's evidence:
Birch had driven on the west side of the highway and along the east side of the ridge for 60 or 70 feet when the right front wheel "caught" or "hooked" the ridge and traveled therein for about 10 or 15 feet. The right wheels of the truck then traveled for about 20 to 40 feet between the ridge and the ditch and then went into the ditch.
One witness testified:
"I saw the tire tracks. It seemed that one wheel caught the ridge and went over the rocky side, and then made a straight run for 30 or 40 feet. It seemed like the right wheel caught far enough down in the ditch to pull the other wheel on the rock, and then in the ditch, and then the car turned over. The track that I followed was on the east side of the mound of rock on the west side of the road. The ridge of gravel was made by the grader, and was about two feet from the west bank of the road. Where the tire caught the gravel I could see the track plain. I could follow the track next to the ditch because the wheel ran pretty close to the ridge along the edge of the ditch. Evidently the right front wheel went into the ridge of the gravel, and followed the gravel ridge down twenty or thirty feet about straight. The right wheel went in the gravel about six or eight or ten feet. Then it cut across the gravel and in that two foot space, then it went down the two foot space between the ridge of the gravel and the west edge of the road 30 or 40 feet, with left wheel on the west side of the gravel, to where the left wheel went over the rock. The ridge of gravel is about one foot and a half wide. The tire track showed the right wheel going catercornered for six or eight feet across the gravel and then the tracks showed the car going 30 or 40 feet straddling the gravel ridge to where the left front wheel went through the gravel." *Page 360
The steering apparatus was loose, and, as a witness for defendant stated, "the play in the wheel was not too safe for driving."
The injury arose out of the employment and claimant is entitled to an award unless defendant has established its defense that intoxication was the proximate cause of the injury. On this issue, the defendant's evidence is substantially as follows:
About 12:30 on the afternoon of the day of the accident Birch had a pint or quart bottle of whiskey one-half full in a customer's store in the town of Neola. Birch took one drink about 1:00 or 1:30 in this store. Three other persons in the store drank from the bottle. Birch left the store about 2:00 o'clock. The customer saw Birch on the streets of Neola about 4:30 and testified that he was not intoxicated when in his store or when he saw him on the street and that his speech and actions were normal.
A dentist of Neola testified that Birch saw him in a pool hall about 2:00 and asked him to take out some teeth and whether he could take a drink before having them extracted. The doctor stated that he could take one drink. Birch then left the pool hall and later returned, played pool with the doctor and at 3:00 P.M. had five teeth extracted. The doctor testified he left his office at 4:00 o'clock; that he was not intoxicated at any time; that he observed him during the afternoon and that he appeared to be normal. So far as shown by the record, Birch took one drink of whiskey in Neola. He reached the town of McClelland at 5:00 o'clock P.M. where he had a small glass of whiskey.
A witness observed Birch driving his Chevrolet panel truck south on the graveled highway at 5:30 P.M. about one and one-half miles north of Treynor and about 3 miles north of the place of the accident. He testified that the road was rough and uneven; that the car was traveling from 60 to 65 miles per hour and that it was bouncing and jumping over the road and weaving.
When Birch had traveled south of Treynor about a mile and a half his left rear tire went flat. Henry Kohl, a mechanic, changed the tire for Birch. He testified on direct examination: *Page 361
"Q. How did he talk?
"A. Well, he didn't seem to want to talk very much.
"Q. Well, did he talk like a drunken man would talk, thick?
"A. Yes, he did.
"I didn't notice him walking any; he was leaning against the truck, and, of course, I was busy with my work. I didn't notice that he staggered, but he walked around on the west side and sat down on the running board. He started to take the tire off from the panel. I couldn't get it off. He could not be of any assistance to me. I asked him what was the matter, and he said he wasn't feeling well. I thought he was intoxicated. He appeared to me as if he were sick, and told me he had had some teeth taken out, but he didn't complain that they were bothering him. The thickening of the speech could have been from his having teeth pulled. My thought that he was intoxicated was based upon the way he talked and the way he acted. He didn't seem to want to talk to me or anything, and kind of walked away from me. The average man is inclined to talk.
"I didn't smell any liquor. He didn't seem to stagger. He was back against the truck. When he walked around from the running board, around back of the truck, he seemed to walk natural.
"I put the spare tire onto his truck, and put the punctured tire inside. I noticed him drive off, and he drove normal when he left there. He got into the cab, I gave him a cigarette and lit the cigarette for him in the truck. I was about two feet from him. I struck the match and held it up to his cigarette, and didn't smell any liquor at that time. I imagine I saw him go south about 300 feet."
The witness then testified his opinion that Birch was intoxicated was based solely on the facts that he talked a little thick and acted like he didn't want to talk with him.
Claimant offered the following testimony in rebuttal on the issue of intoxication: *Page 362
Mr. Baxter, a salesman, saw Birch in the town of McClelland about 5:00 o'clock in the evening and visited with him. He testified:
"His face was altered a little bit, and he told me he had some teeth out, his front teeth, that morning. Naturally his talk was a little different. He talked a little thick. I didn't smell any liquor on him. I didn't see anything outside of his speech unusual about his demeanor. I saw him get out of his truck and walk over to the street, and he walked normal. He said his teeth were bothering him, and I don't think he was talking quite so free for that reason. I would say that he looked like he hadn't had anything to drink that day."
Albert Mayer, age 14, and Russell Mayer, age 12, attempted to aid Birch in fixing his tire. The jack that Birch had in his car would not work. Albert then phoned Mr. Kohl, the mechanic, to come out to the truck and fix the tire. They both testified they didn't smell liquor on Birch and that he talked in a normal manner.
All of the above evidence was introduced at the hearing before the deputy commissioner. Defendant gave notice that it would introduce additional testimony at the hearing before the commissioner. Pursuant to this notice, Albert and Russell Mayer, who had testified for claimant at the hearing before the deputy commissioner and Chester Mayer, father of the boys, testified for the defendant on the issue of intoxication of Birch. The testimony of Albert and Russell Mayer before the industrial commissioner was in direct contradiction to the testimony at the prior hearing. They testified that they smelled liquor on the breath of Birch at the time they were trying to help him fix the tire; that "when he tried to walk he would walk close to the side of the truck and hang on it so he could have something to balance himself so he wouldn't fall down, stagger all over the road, something like that," and that in their opinion he was intoxicated. The reasons given by the boys for repudiating their testimony before the deputy commissioner are inconsistent, contradictory and unsatisfactory. *Page 363
Chester Mayer observed Birch at the truck when it was parked because of the flat tire from a distance of 60 to 80 feet. He concluded Birch was intoxicated because "he started back along side of the truck and he kept one hand leaning on the truck and he walked unsteady like a person that was dizzy or didn't have very good control of himself. He wasn't steady on his feet. Just like a person who had to have a little support to get along."
Albert and Russell Mayer stated, among other reasons for changing their testimony, that their father told them not to state Birch was intoxicated because it would get some of the neighbors in trouble. Chester Mayer gave the following reason for advising his sons "to forget it all."
"Q. To what do you refer and mean when you said you told your son Albert to forget it?
"A. Just so he wouldn't be even thinking about liquor or anything of that kind at all. I don't like for them to be around it and I don't want them to be if I can keep them from it.
"Q. That was your only reason for mentioning that to Albert at that time?
"A. That is right."
The commissioner, after reviewing the testimony of Albert and Russell Mayer, at both hearings, and the circumstances and evidence bearing on their credibility, stated in his opinion:
"We are, therefore, compelled to conclude that their testimony relating to intoxication is not worthy of belief for or against the proposition of intoxication."
The record is that Birch had a drink of whiskey about 1:30 in the afternoon out of the bottle and a small drink of whiskey at 5:00 o'clock. Several witnesses stated that he was not intoxicated at 5:00 o'clock. Mr. Kohl, a witness for defendant, stated that after he fixed the tire he watched Birch drive south for about 300 feet and "he drove normal when he left there." The truck went into the ditch about a thousand feet beyond the place Kohl saw Birch driving in a normal manner. *Page 364
In Serrano v. Cudahy Packing Co., 194 Iowa 689, 691,190 N.W. 132, 133, the opinion states:
"Evidence offered before the industrial commissioner is subject to the usual tests of credibility and this is true although no witness contradicts. The finding of the commissioner has the same force and effect as the finding of a jury. * * *. A jury takes into consideration the means and the opportunity of a witness to know the facts to which his testimony relates. This is also the privilege of the commissioner and it is for him to determine the consistency of the testimony and in the light of all proven facts and circumstances to weigh the credibilty thereof."
Birch was driving his truck in the course of his employment and the circumstantial evidence relied upon by claimant reasonably tends to support the decision of the commissioner, who, in passing on the weight of the evidence, found that the injury was caused by the accidental contact of the wheels of the truck with the loose gravel. The commissioner also found, in substance, that the judgment and faculties of Birch and his ability to drive the truck with care were not impaired by intoxicating liquor, and that defendant had failed to establish the intoxication of Birch as the proximate cause of the injury.
The following language in Young v. Mississippi R.P. Co.,191 Iowa 650, 652, 180 N.W. 986, is applicable to this case:
"While there is testimony in the record tending to show that the deceased had drunk intoxicants to some extent on the day of his death, it falls far short of that measure of proof which would justify a finding that he was drunk, or incapable of attending to his usual duties in a reasonably careful and efficient manner."
The evidence warrants the finding that Birch was not intoxicated.
We are of the opinion there is sufficient evidence to sustain the decision of the commissioner and the case is affirmed. — Affirmed.
HALE, C.J., and SAGER, GARFIELD, OLIVER, MILLER, WENNERSTRUM, and MITCHELL, JJ., concur. *Page 365 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431215/ | On August 29, 1932, the appellant, Smith Huxley, owned the land in controversy, an unincumbered fractional eighty acres of land in Montgomery county, and also an adjoining forty acres across the road in Cass county. It was also clear. He also owned another farm of one hundred and forty-two acres in Montgomery county on which there was a mortgage, which he was fearful would be foreclosed, and leave a deficiency judgment, which would be a lien on his unincumbered land. His wife was seriously ill with cancer, and was in need of doctoring and nursing. The defendants are wife and husband, the former being a daughter of the appellant's wife by an *Page 821
earlier marriage. There were other children of this marriage. The appellant had no children. The defendants occupied the mortgaged farm. The evidence shows without dispute that on August 28, 1932, he asked the defendants to come to his home, where he told them that he was afraid he might lose his unmortgaged land, and that he would have no home for himself and wife for their remaining years. He was seventy-two years old and his wife was sixty-four years old. He then asked Jessie if she would not take a deed to the fractional eighty as a protection from the threatened deficiency judgment, and to save the home for himself and wife. She demurred somewhat and suggested that someone else take the deed. However, upon the appellant's further insistence, she agreed. Nothing was said about any reservations for the appellant, nor was anything said about a conveyance back to the appellant after the foreclosure was completed. After this meeting, the appellant consulted attorneys, and under his direction they prepared a warranty deed for the conveyance of this land, by the appellant and his wife, to Jessie Liess. It contained no reservations, and recited a consideration of one dollar and other valuable consideration. The attorneys also prepared a written lease, by which the appellees, as lessors, leased the premises, in controversy, to the appellant and his wife, for a term of twenty-five years, from March 1, 1933, but to terminate on the death of both the appellant and his wife. The lease appears to have been the common form, known as the Ellsworth lease. The only rent stipulated in the lease was the payment of the taxes for the year 1932, and each year thereafter, during the term. On the following day, the appellees met at the home of the appellant. There were present the appellant and wife, their lawyer, who was also a notary public, and the appellees. The deed was signed by the appellant and his wife, and they and the appellees signed the lease. The execution of both instruments was duly acknowledged by their makers before the notary. There was nothing said by anyone about any reservations, conditions, or contingencies relative to the transfer of the land. The instruments contained the whole agreement. The appellant testified:
"Yes, I told Mr. DeWitt to have this recorded at once. He took it to Attorney Bryant — Mr. Bryant was the attorney and Mr. DeWitt was the Notary — so he took it to Mr. Bryant *Page 822
and Mr. Bryant sent it to Red Oak to be recorded and returned to Mr. Bryant to be taken the proper care of. They kept it until the institution of this law suit. I think they have it yet: Yes, I gave a copy to Mr. and Mrs. Liess. Yes, the revenue department came later and claimed there should be a revenue stamp on the deed. They was made out through an oversight. I put $5.00 of revenue stamps on the deed and had it re-recorded. I immediately took it right back on the same afternoon to Mr. DeWitt's office to have him take care of this deed. The second recording was in August, 1935. Three years after the original transfer."
The instructions and the delivery by the appellant took place in the presence of all of them.
The appellant has had possession of the land ever since and has paid the taxes on it. There is no dispute about the matters above stated. The appellees testified that one of the conditions and considerations of the transfer was that they were to take the appellant's wife into their home and care for her as long as she might live. The appellant denies this. But the appellant's wife was taken to the home of the appellees, a day or so after the above-mentioned transaction, and was cared for by the appellees until her death on December 30th, following. The appellant contributed to the care of his wife and the expense thereof, by having another daughter of his wife assist in her care.
The appellant made no claim that the transaction was not as related herein, until the summer of 1937, when, through his attorney, he demanded that the property be conveyed back to him. When this was refused he brought this action. The trial court denied the appellant any relief and decreed that the appellee, Jessie Liess, had absolute title under the deed, subject to the life use of the appellant.
[1] We fully agree with the trial court. Under this record every element essential to the conveyance of title to land by deed has been established. The appellant relies upon but one point for reversal, and that is "that there was no delivery of the deed, actual or symbolic, and that there was no existing intention at any time that title was to be transferred." No authority which he cites supports his contention. It is also fully refuted by the facts. The signing, acknowledging, delivery, and *Page 823
acceptance of the deed, are beyond any question of doubt, under this record.
[2] The intent of the grantor is the controlling element in the delivery of a deed. There can be no doubt of the appellant's intention to deliver the deed and to part with title.
[3] Acceptance is a necessary element, and it is oftentimes presumed where the conveyance is beneficial to the grantee, and carries no onerous obligations. The appellees need not depend solely upon the presumption, because it is undisputed that she agreed beforehand to accept the deed, and it was executed, and in her presence, was delivered by the appellant to the notary, for her, to be recorded. It was not necessary that the deed be handed to her, or come into her possession, either before or after the recording. The fact that the deed was delivered to a lawyer or notary whom he had employed, and who thereafter retained physical possession of the recorded instrument, does not aid the appellant. Keating v. Augustine, 213 Iowa 1336, 241 N.W. 429. As a matter of fact the notary was acting for all parties. Even though the recorded deed had been returned to and kept by the appellant, it would not better his cause. Robinson v. Gould,26 Iowa 89. Since the title vested in Jessie Liess, when the deed was delivered to the notary, not even its subsequent destruction would have divested her title. Matheson v. Matheson, 139 Iowa 511,117 N.W. 755, 18 L.R.A. (N.S.) 1167. If there could be any doubt about the execution, delivery, or acceptance of the deed, the execution of the lease, and the subsequent conduct of the appellant for five years, remove it. A copy of this deed was delivered to Jessie Liess.
[4] The original deed was recorded, and even re-recorded, three years later. While recording, in itself, does not constitute delivery, it is evidence of, and creates a presumption of, delivery. This presumption is rebuttable, but it places upon the appellant the burden of proving nondelivery, and this presumption is so strong and persuasive that only clear and satisfactory evidence will overthrow it. Gibson v. Gibson, 205 Iowa 1285,217 N.W. 852; Robinson v. Gould, 26 Iowa 89; Jones v. Betz, 203 Iowa 767,210 N.W. 609, 213 N.W. 282; Johnson v. Lavene, 196 Iowa 471,192 N.W. 885; Davis v. Hall, 128 Iowa 647, 105 N.W. 122; Tucker v. Glew, 158 Iowa 231, 139 N.W. 565; Robertson v. Renshaw,220 Iowa 572, 261 N.W. 645; *Page 824
Browne v. Johnson, 218 Iowa 498, 255 N.W. 862; Burch v. Nicholson, 157 Iowa 502, 137 N.W. 1066.
[5] The deed was executed and delivered without reservations, or subject to recall. The sisters of Mrs. Liess seemed somewhat displeased because they could not share in the property. Some of them testified that their mother said it was the intention that all of the children should share after the life use was exhausted. This alleged remark was made sometime after the transfer. It is a well-known principle that a grantor in a warranty deed cannot by subsequent declarations impeach the title conveyed. Jones v. Betts, supra; Shepherd v. Delaney, 191 Iowa 138,181 N.W. 753; Mathers v. Sewell, 193 Iowa 35, 186 N.W. 636. Especially is this true when not made in the presence of the grantee.
[6] It is our judgment that the appellant has fallen short of carrying the burden which he has undertaken. He seeks to divest a title that he had acquiesced in for over five years. To do so he must establish a case plain, clear, and decisive. He has not done so. The case of Orris v. Whipple, 224 Iowa 1157,280 N.W. 617, relied upon by appellant, is not applicable.
Other cases supporting the trial court's decree are Lathrop v. Knoop, 202 Iowa 621, 210 N.W. 764; Goodman v. Andrews, 203 Iowa 979,213 N.W. 605; Hinson v. Bailey, 73 Iowa 544, 35 N.W. 626, 5 Am. St. Rep. 700; Bohle v. Brooks, 225 Iowa 980, 282 N.W. 351. The decree appealed from is affirmed. — Affirmed.
MITCHELL, C.J., and RICHARDS, SAGER, STIGER, HAMILTON, HALE, OLIVER, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431217/ | The certificate sued on contains the following proviso:
"I agree that my disappearance or long continued absence, unheard of from my family or place of residence, shall not be regarded as evidence of my death, or of any right to recover under my certificate, until after the expiration of my expectancy of life, according to the mortality tables of the National Fraternal Congress."
The foregoing provision was supported by an existing by-law to the same effect. The fighting question in this case is whether the foregoing provision was valid and binding upon the insured and his beneficiary.
The effect of seven-year disappearance upon the rights of the insured and his beneficiary has been considered in a series of our cases, as follows: Olson v. Modern Woodmen, 182 Iowa 1018;Richey v. Sovereign Camp of W.O.W., 184 Iowa 10; Haines v. ModernWoodmen, 189 Iowa 651; Fryer v. Modern *Page 1140 Woodmen (Iowa), 179 N.W. 160 (not officially reported); Flemingv. Merchants' Life Ins. Co., 193 Iowa 1164.
In the four cited cases of Olson, Richey, Haines, and Fryer,
by-laws were involved which repudiated the presumption of death from the fact of disappearance and a seven-year absence. In each case, such by-law was not in existence at the 1. INSURANCE: time of the issuance of the policy, but was mutual enacted thereafter. In each case, the policy benefit issued purported to bind the policyholder to insurance: future by-laws. In each case we held that the contract in enactment of such future by-laws was not a re reasonable exercise of the power conferred by evidentiary the terms of the policy, in that it operated to effect of reduce materially the scope of insurance disappear- otherwise contracted for. Such is not the ance: question involved in the case at bar. The validity. present by-law was not only in existence at the time the insured became a member, but its provision was incorporated in the certificate itself. It is a part of the instrument upon which plaintiff predicates her action.
However, in the Fleming case, 193 Iowa 1164, the by-law relied on in defense was in existence as a previous enactment, and was incorporated in the policy sued on. To that extent, the Fleming
case involved the conditions present herein. The distinction between the facts of the Fleming case and those of the case at bar is that in the former the by-law purported to cut off from the insured all remedy in a disappearance case and all right of recovery at any time; whereas, in the case at bar, the right of remedy and recovery was postponed until the expiration of the period of the expectancy of the insured. The effect of such provision in this policy is to retard the maturity of the cause of action upon the policy until July 1, 1941, unless there be evidence of death other than disappearance and continued absence.
In our judgment the distinction is a very material one, and warrants differentiation in the legal effect of the respective policies. Notwithstanding this fact, it is contended that our holding in the Fleming case was effective, nevertheless, to foreclose such differentiation now. Whether we are thus foreclosed by the Fleming case is the first difficulty now confronting us. If nay, we could readily agree that the provision of policy and by-law *Page 1141
now under consideration is a valid one, and is, therefore, enforcible according to its terms.
In the Fleming case, one ground of condemnation of the proviso under consideration herein is that it is an attempt to abrogate a rule of evidence, and is, therefore, an infringement upon the functions of the court in future litigations 2. CONTRACTS: upon the contract. This ground of condemnation, requisites if valid, is applicable to the case at bar. To and follow this ground of condemnation, however, validity: involves us in another conflict of precedents. legality of It is in conflict with our previous holding in object: Roeh v. Business Men's Prot. Assn., 164 Iowa contract in 199. In that case we had under consideration the re rule of question whether contractual provisions relating evidence. to future procedure were contrary to public policy, and therefore void. We held definitely in the negative. In that case we said:
"It is contended that the by-law is contrary to public policy, in that it attempts to modify and control the procedure of courts of justice. It does not in any manner deprive courts of their jurisdiction, but simply provides a rule of evidence or a condition precedent or subsequent to a right of recovery. We see nothing in the by-law contrary to public policy. Contracts relating to procedure have frequently been sustained. The parties may, by contract, fix their own statute of limitations. SeeHarrison v. Insurance Co., 102 Iowa 112. They may also specify the terms and conditions of liability, even though, without the contract, recovery might be had. Griswold v. Railroad, 90 Iowa 265. A contract may be made, waiving a jury trial. Columbia Bankv. Okely, 4 Wheat. 235 (4 L. Ed. 559). A by-law much like the one now before us was applied in National Ass'n v. Ralstin, 101 Ill. App. 192; Kelly v. Supreme Council, 46 A.D. 79 (61 N.Y. Supp. 394). A contract providing a rule of evidence was also upheld by this court in Russ v. The War Eagle, 14 Iowa 363. The legislature has not spoken upon this subject, and, until it does so, we see nothing inimical to public policy in the by-law now before us."
Our foregoing pronouncement has been consistently followed by us ever since, in the "eyewitness" cases. See Pride v.Inter-State Bus. Men's Acc. Assn., 207 Iowa 167. We are confronted *Page 1142
with the necessity of overruling the Roeh case or of overruling the third ground of the Fleming case. It is our present judgment that the Roeh case presents the sounder view on that question. It has the support of the overwhelming weight of authority in other jurisdictions.
In so far, therefore, as the Fleming case holds that the policy provision therein under consideration was void as an interference with court procedure, it is now overruled.
The only other ground urged against the validity of the policy provision is that it is unreasonable. Some courts have so held. In our judgment, the weight of authority is clearly to the contrary. On principle, we see little ground for such holding. To permit a life policy to be constructively matured by the mere disappearance of the insured clearly introduces into the risk a moral hazard. It creates a motive to disappearance. Insurance companies must take account of moral hazards, and it is their natural duty to make reasonable provision against them. A life insurance policy does not ordinarily mature within seven years. The policy proviso under consideration gives to the insured the benefit of his presumptive expectancy, even in case of disappearance. It thereby removes from him the motive to accelerate maturity by disappearance. It works no fraud upon him, when it is made known to him by the terms of his policy. It exacts nothing more from him than the actual cost of his insurance. By means of a medical examination, the insurance company assures itself of the character of the risk it assumes and of the fact that the physical condition of the insured is such as to warrant a normal expectancy of life. Without such medical examination, no insurance company could safely issue policies. Nor would the public authorities permit its transaction of business without such safeguard. But a medical examination is worthless against the prospective or possible disappearance. Assurance against constructive death by disappearance must be had, if at all, by other means. Such is the function of the policy provision under consideration. The net effect of the provision in the case at bar is that the medical examination of the insured disclosed a physical state indicating an expectancy of 25 years. The insured and the insurer bargained upon the basis of this expectancy, in lieu of any rule to the contrary. Why such a provision should be *Page 1143
deemed unreasonable, or void, as against public policy, is not apparent to us. We hold the same to be valid.
The judgment below is, accordingly, — Reversed.
All the justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431243/ | Testator, John Telsrow, a bachelor, age seventy-six, died March 16, 1944. He left as heirs two sisters, Matilda Telsrow, age sixty-one, and Emma Korthaus, age seventy-one; three brothers, Louis, age seventy-three, Ed, age sixty-nine, and Gus, age sixty-four; four children and five grandchildren of testator's brother Will, who died in 1925. Testator left a farm of one hundred eighty acres in Cedar county, worth at least $27,000, and bank deposits, government bonds, and postal savings of something over $51,000. *Page 674
John's will, made June 30, 1942, devises the farm to Alvena and Rosie Telsrow, wives respectively of the brothers Ed and Gus, and bequeaths the bank deposits, bonds, and postal savings in three equal shares to Eleanore and Howard Telsrow, daughter and son of Ed and Alvena, and Harold Telsrow, son of Gus and Rosie. The will nominates Eleanore, then twenty-six years old, executrix without bond.
Proponents of the will are the sisters-in-law, Alvena and Rosie, who are also sisters, and the nephew, Harold. Eleanore and Howard did not appear as proponents but were witnesses for contestants upon the trial. Contestants are testator's two sisters, three brothers (including Ed and Gus), and two sons of the deceased brother.
[1] I. Proponents contend the evidence is insufficient to support the jury's finding of undue influence and that their motions for directed verdict and judgment notwithstanding verdict should have been sustained. We will consider the evidence in the light most favorable to contestants, giving them, as we must, the benefit of all inferences reasonably permissible.
Testator farmed until 1912, when he moved to Durant to live with his father, mother, and sister Matilda. The mother died in 1913; the father, in 1918. John continued to live in the home with Matilda until his death. From 1925 on the brother Louis also lived there. Matilda purchased the home soon after her father died. She paid the household expenses, kept up the home, prepared the meals, kept house, and cared for John when he was sick, without pay.
About 1938 testator's health began to fail. Before then he assisted Matilda in caring for her garden, mowing her lawn, and the like. After 1938 or 1939 he was unable to do those things. Prior to 1940 testator made frequent trips to his farm and during busy times helped his brother Ed with farm work. In 1940 testator became confused and attempted to drive his car into a neighbor's garage. He never drove his car again. In December 1941, testator suffered a light stroke from which he never recovered. After this he was unable to walk any distance without help; he failed more rapidly, both physically and mentally; he lost control of his kidneys and bowels; this condition grew worse. From this time on it was necessary for *Page 675
Matilda to care for John much as if he were a baby — clean his clothing and bed and help bathe him. When he had involuntary bowel movements he did not appear to know it and was not embarrassed.
After December 1941, John was unable to recognize relatives — his sister Emma, his brothers Ed and Gus, and other relatives and acquaintances. He expressed surprise that his father, mother, and brother Will did not come to see him. As stated, Will had been dead since 1925 and his parents even longer. When Matilda explained that Will had been dead for years, John did not seem to understand. From December 1941 on testator would not talk and made no response to questions except sometimes to mumble. He had a silly grin on his face.
Without going into detail, there is much convincing evidence that when the will was made on June 30, 1942, testator was incapacitated mentally and, to a considerable extent, physically. Nine lay witnesses — at least four of them appear to be wholly disinterested — give their opinion testator was then of unsound mind, after relating facts which tend to support such conclusion.
A doctor, apparently disinterested, who examined testator on April 30 and May 15, 1942, gives persuasive testimony that testator then had no understanding "where he was at," was unable to understand when spoken to, "questions did not seem to register with him," he was unable to express himself intelligently, his mind was not functioning; he was in an advanced stage of arteriosclerosis and senile dementia; his condition would get progressively worse; he did not have the mental ability to recollect his property, his relatives, or their claims upon his bounty; was mentally unable to exercise judgment, reason, or discretion; would have no understanding of any will he might sign; his unsoundness was so apparent that anyone who talked with him would know it.
Two experts — Dr. Love of Iowa City, and Dr. Stewart, superintendent of the State Hospital for the Insane at Independence — say, in answer to a hypothetical question nine pages long, that testator was of unsound mind when the will was made; had an extreme case of senile dementia; was unable to exercise judgment, reason, or discretion, or to know his *Page 676
obligations to his relatives or the extent of his property, or to understand any will prepared for his signature. Dr. Stewart testifies that persons in the mental condition of testator are readily subject to the influence of others.
As opposed to contestants' showing of mental incapacity, only one lay witness, aside from the three proponents and the attorney who drew the will, expresses the opinion testator was of sound mind when the will was made. Proponents produced no expert testimony.
There is direct evidence that on June 30, 1942, about 9:30 a.m., Alvena and Rosie Telsrow called at Matilda's home for John, saying they wanted to take him for a ride but they did not say where they were going. Alvena was driving the Dodge car that had been John's before he transferred it in February 1942 to Alvena's daughter Eleanore. Matilda put John's coat on him and the sisters-in-law assisted him into the car. "They took hold of him, he could hardly walk. He could not get to the car without help."
From Matilda's home in Durant they drove to a bank in Wilton Junction where Alvena and Rosie had an account and there was a large account in John's name. Alvena deposited $646 in her and Rosie's account and drew a check on it payable to John for $1,022, to pay the balance of a note given by Alvena to John on November 21, 1938, for money loaned her by John. The banker computed the interest on the note. None of the five bank accounts in John's name shows any deposit of this $1,022. The banker gives it as his best recollection that both Alvena and Rosie were with John at the bank.
There is evidence that from Wilton Junction Alvena and Rosie drove John to Muscatine to the office of an attorney whom John did not know. Alvena testifies she left John at the lawyer's office, drove her car not more than two blocks, parked it and walked directly back to the office. Just as she opened the office door, she says John was coming out of the office holding in his hands the will in an envelope and a receipt for $10 he had paid the attorney for drafting the will. John gave the will and receipt to Alvena; she put the papers in her purse; she and John walked to the car, John without assistance; she drove to Wilton Junction, stopped at the bank *Page 677
where Alvena and Rosie had four safe-deposit boxes; she placed the will and receipt in one of the boxes, where they remained until the day after John's funeral. From Wilton Junction they drove to Matilda's home at Durant, where they arrived about 3:30 p.m. Matilda asked the sisters-in-law where they had been but they gave no answer. John was then "all wet and a little mussed."
The witnesses to the will are the lawyer, who says he took notes from what John told him, and his associate, who died before the trial, who is said to have typed the will. The surviving attorney testifies John came into the office and sat down without help although "he seemed to be afflicted"; the attorney did not recall ever having seen John before; John gave him the information pertaining to the will; the attorney made notes from what testator told him; these notes were given the other attorney, who typed the will; testator appeared to read the will, signed it "with some difficulty"; the attorneys signed as witnesses at John's request, John paid them $10 in currency, for which they gave him a receipt; John then left the office unassisted; the whole transaction took about a half hour.
While the attorney testifies only he, his associate, and John were present in the office, shortly after John's death the attorney admitted there might have been some women outside the office in a car and that there was a short woman (apparently Rosie is short) in the front office with John when the will was made.
Before further reference to the evidence, we consider the applicable rules of law.
Undue influence in cases of this kind may be, and usually is, proven by circumstantial evidence. Direct proof is seldom available. Shaw v. Duro (Hale, J.), 234 Iowa 778, 789,14 N.W.2d 241, 246 Monahan v. Roderick (Evans, J.), 183 Iowa 1, 6,166 N.W. 725; Liddle v. Salter (Ladd, J.), 180 Iowa 840, 843,163 N.W. 447; James v. Fairall (Deemer, J.), 154 Iowa 253, 262,134 N.W. 608, 38 L.R.A., N.S., 731; 68 C.J. 780, 781, section 466.
The issue of undue influence in a will contest cannot be separated from that of testamentary capacity. Conduct which might be insufficient to influence unduly a person of normal *Page 678
mental strength might be sufficient to operate upon a failing mind. One who is infirm and mentally weak is more susceptible to influence than one who is not. In re Estate of Ensminger,230 Iowa 80, 82, 296 N.W. 814, 815, and cases cited; 68 C.J. 767, section 458.
While opportunity and disposition to exercise undue influence are properly to be considered, proof of such opportunity and disposition is insufficient. Also, importunity, request, and persuasion that do not control the will are not enough. In re Estate of Heller (Bliss, J.), 233 Iowa 1356, 1367,11 N.W.2d 586, 592, and cases cited; 68 C.J. 791, 792, section 472.
That a will is unnatural, unjust, or unreasonable is also a proper circumstance to be considered, along with evidence that undue influence was exerted, as tending to confirm the claim of undue influence. In re Estate of Eiker, 233 Iowa 315, 317,6 N.W.2d 318, 320, and cases cited; Pirkl v. Ellenberger (Gaynor, J.),179 Iowa 1122, 1129, 162 N.W. 791; annotation 66 A.L.R. 228, 250.
While this may be a borderline case on the issue of undue influence, we think the evidence sufficient to support the jury's finding of undue influence on the part of Alvena and Rosie Telsrow. There are too many significant circumstances to have warranted a directed verdict for proponents.
Although the jury found in answer to a special interrogatory that testator had sufficient mental capacity, it is proper to conclude (if they did not make an inadvertent mistake in writing their answers to the two interrogatories) they found testator was extremely weak, both physically and mentally, and readily subject to influence.
It is apparent there was ample opportunity for the two sisters-in-law to influence unduly this incapacitated testator. That they had the disposition to do so also sufficiently appears. These women were not without experience in business affairs. At least since 1940 they conducted a farming enterprise of their own. As stated, they had at least four safe-deposit boxes in one bank. They engaged in litigation with their two sisters. Their disposition is shown by the fact they called for testator under the pretext of wanting to give him a ride, presumably for pleasure. They sought to conceal their intention *Page 679
to take this afflicted man to a strange lawyer to make an unjust and unnatural will. As soon as the will was executed they secured and kept possession of it, concealing the entire transaction from other members of the family, including their own husbands, until after testator died.
We have not only a testator unquestionably subject to undue influence, together with opportunity and disposition to exercise such influence, but also a will that appears to be the result thereof. The will does not mention any of testator's heirs. The injustice of excluding the sister Matilda, in particular, is obvious. Without recompense she had housed, fed, and nursed testator for about twenty-four years and was destined to care for him the remainder of his life. Several witnesses testify to the harmonious relations between John and his sisters and brothers. No adequate explanation is offered, except that of undue influence, why testator should exclude Matilda and his other heirs and give all his property to these two aggressive sisters-in-law and their three children. It is significant that Alvena's daughter and son apparently favor the contestants, notwithstanding the large legacies to them.
The jury could properly find the will could not have been made as testified by Alvena and the attorney. There is persuasive testimony that John was unable to walk unassisted from the car into the lawyer's office or the two blocks from the office to the car. At the start of the trip he was unable to walk unassisted from the house where he lived to the car. Indeed "he had to have aid to get from the bedroom to the kitchen" at about that time. If the doctor who examined him on April 30th and May 15th and many other witnesses are believed, testator was wholly unable not only to walk unassisted but also to give the attorney the information from which the will was prepared or to comprehend the nature of the instrument. If testator was in the condition these witnesses describe, no attorney should have prepared a will for him.
The attorney testifies John did not tell him the middle names of the niece and two nephews named in the will. Yet their middle names are written in the will. The attorney says John told him his personalty consisted of cash, moneys and credits, and nothing else. The will bequeaths "all bonds, *Page 680
postal savings and cash on deposit in banks." Where did the attorney get the middle names of the legatees and the information there were bonds and postal savings? The attorney testifies John paid him $10 in currency. Matilda says he had only a dollar bill and a little small change when he left home. The conclusion is warranted Alvena furnished the money to pay for drafting the will as well as the information from which it was prepared.
It is worthy of consideration that the jury could find Alvena, Rosie, and the attorney who testify to proponents' version of the making of the will were not to be believed. Alvena and Rosie denied they called for John at Matilda's home or returned him there the day the will was made. Alvena says John was at her home that day and the trip started and ended there, Alvena and Rosie deny they were together at any time on June 30th. Their testimony is contradicted not only by Matilda but also by a neighbor, who both say Alvena and Rosie both called at Matilda's for John and returned him there later in the day. Also, as stated, the Wilton Junction banker, a witness for proponents, gives it as his best recollection that both Alvena and Rosie were at the bank with John. Further, Alvena's daughter Eleanore and son Howard give testimony for contestants inconsistent with Alvena's version of what happened on the day the will was made.
The conclusion is warranted that Alvena had sufficient influence upon testator as early as 1938, when he began to "slip," to obtain from him a loan of $2,800 upon her unsecured note. It is significant that all endorsements of credits on the note, except the last two, which were made by the banker, were made by Alvena.
We think the combined effect of all the proven circumstances sufficient to make the issue of undue influence for the jury. The stealthy way in which this almost helpless man was taken to a strange lawyer in Muscatine, the circumstances surrounding the making of this unjust and unnatural will, the obtaining and retention of it by Alvena, the refusal to inform Matilda the trip to Muscatine had been made, concealing the transaction from other members of the family, together with *Page 681
other circumstances shown, constitute substantial evidence of undue influence.
In Shaw v. Duro, 234 Iowa 778, 781, 14 N.W.2d 241, 242, we say, "* * * whether or not there was such undue influence as would vitiate a will must depend upon the facts in each particular case." However, among the decisions that tend to support our conclusion are, In re Estate of Coe, 234 Iowa 1113,15 N.W.2d 278, and comment 30 Iowa L. Rev. 321; In re Estate of Eiker, 233 Iowa 315, 6 N.W.2d 318; In re Will of Jahn, 195 Iowa 74,189 N.W. 974; In re Will of Busick, 191 Iowa 524,182 N.W. 815; Monahan v. Roderick, 183 Iowa 1, 166 N.W. 725; Pirkl v. Ellenberger, 179 Iowa 1122, 162 N.W. 791; James v. Fairall,154 Iowa 253, 134 N.W. 608, 38 L.R.A., N.S., 731.
[2] II. Proponents complain of the overruling of their objection to the long hypothetical question contestants asked Doctors Love and Stewart. The question was objected to, in substance, as incompetent, irrelevant, immaterial, no proper foundation laid, contains an incomplete recitation of facts and facts not borne out by the record. At best, it is doubtful if the objection to the question is sufficiently specific. There was no objection to any particular statement in the question. It is the duty of counsel to point out the particular defect or defects in such a question so the statements objected to may be corrected or eliminated. Ranne v. Hodges (Ladd, J.), 181 Iowa 162, 177, 178,162 N.W. 803, and cases cited; Reynolds Heitsman v. Henry (Faville, J.), 193 Iowa 164, 167, 168, 185 N.W. 67; 4 C.J.S. 587, 588, 589, section 295b (1).
Aside from the above, the rulings were not erroneous in the respects complained of here. While the facts stated in a hypothetical question must have support in the evidence (Anderson v. Sheuerman, 232 Iowa 705, 708, 6 N.W.2d 125, 126, 127, and cases cited), the question need not contain all the facts shown by the evidence. Diesing v. Spencer, 221 Iowa 1143, 1149,266 N.W. 567; Neal v. Sheffield Brick Tile Co., 151 Iowa 690, 693,130 N.W. 398; Munier v. Michel, 147 Iowa 312, 314, 126 N.W. 149; 20 Am. Jur. 662, section 788. Some facts which proponents complain were omitted from the question were brought out by their witnesses after the hypothetical *Page 682
questions were asked. It was not necessary, if indeed it were possible, to include in the question facts subsequently developed. Kirby v. Chicago, R.I. P. Ry. Co., 173 Iowa 144,159, 155 N.W. 343; 32 C.J.S. 352, 354, section 551b (2).
We think the facts assumed in the hypothetical question have support in the evidence. At least some latitude must be allowed in the choice of facts stated in such a question and the trial court has considerable discretion in ruling on an objection thereto. Contestants were entitled to frame the question according to their theory of the case, as their construction of the evidence showed the facts to be or as the jury would have a right to find them. Diesing v. Spencer, 221 Iowa 1143, 1148,266 N.W. 567, and cases cited; 32 C.J.S. 353-355, section 551b (2); 20 Am. Jur. 668, 669, section 796.
In any event, the ruling complained of was without prejudice since the jury was fully instructed that if the facts stated in the hypothetical question were incorrect, unfair, or untrue, or did not fairly include all facts in evidence upon the subject of the inquiry, then the opinions based thereon should be disregarded. Howe v. Richards, 112 Iowa 220, 225, 226,83 N.W. 909; Reynolds Heitsman v. Henry, 193 Iowa 164, 168,185 N.W. 67.
[3] III. Instruction 12 told the jury, in substance, the provisions of the will, whether just or unjust, reasonable or unreasonable, natural or unnatural, should be considered in determining both mental capacity and undue influence, but if they found the will unjust, unreasonable, or unnatural, that alone would not invalidate it but might be considered with other evidence in determining the ultimate issues. Proponents excepted to the instruction because it should "embrace in substance the right of an individual to make a will that may be unjust and unfair" and gives the claim that the will was unjust, unreasonable, or unnatural undue weight. When the instructions as a whole, especially No. 13, are considered, the exception to No. 12 is without merit.
Instruction 13 informed the jury, in substance, that testator, if in his right mind, had the right to do as he pleased with his property and was under no legal obligation to provide *Page 683
for any of the contestants; that whether or not the will was reasonable should be considered only in connection with other evidence, to determine the issues of mental capacity and undue influence and if testator was not of unsound mind and not unduly influenced, the failure of the will to provide for others would not invalidate it.
Instruction 13 sufficiently meets the first part of proponents' exception to instruction 12 and also adequately covers the substance of proponents' first requested instruction.
Perhaps the principal complaint now made of instruction 12 is bottomed on language in some of our decisions to the effect that inequality of a will is without probative force in the absence of any evidence that tends to show undue influence. See Johnson v. Johnson, 134 Iowa 33, 35, 111 N.W. 430, and cases cited; In re Estate of Rogers, 229 Iowa 781, 788, 295 N.W. 103, 106; In re Estate of Eiker, 233 Iowa 315, 317, 6 N.W.2d 318, 320. It is doubtful if the exception to instruction 12 raises the complaint proponents now make.
In any event, instructions 12 and 13 both plainly state in effect that if the will is unjust it would not for that reason be invalid but such fact should be considered only in connection with other evidence. Neither instruction 12 nor 13 is inconsistent with the authorities cited last above, nor is No. 12 vulnerable to proponents' complaint. Manatt v. Scott, 106 Iowa 203,216, 76 N.W. 717, 68 Am. St. Rep. 293, and cases cited; Ranne v. Hodges, 181 Iowa 162, 165, 162 N.W. 803, and cases cited; 68 C.J. 1117-1119, section 935.
[4] IV. By way of impeachment, contestants asked two of their witnesses regarding a conversation between them and the attorney who testified about making the will. Inquiry was made of each whether at a named time and place the attorney was asked if there were some women with John when he made the will, to which the attorney replied, "no, well, there might have been out in the car," or that in substance. Inquiry was also made of each witness whether the attorney was asked in the same conversation if there was a short woman with John, to which the attorney said in substance she was in the front office. Proponents' objection to each inquiry was overruled *Page 684
and each witness answered "yes" to each question. Proponents contend the evidence was not material and that no proper foundation for the impeaching evidence was laid by the testimony of the attorney. The rulings were proper.
Whether Alvena and Rosie were with testator when the will was made was certainly material. At the start of the trial the attorney testified on direct examination as a witness for proponents, "No one else was present." Proponents apparently then thought it material whether anyone accompanied testator to the law office. In cross-examining the attorney, contestants asked him about his later conversation with their two witnesses. The attorney denied saying there was a short woman in the office but said he "might have said in substance," and "probably" did, that there might have been some women out in the car. Clearly, there was sufficient foundation for the second impeaching question asked contestants' witnesses. We think the attorney's equivocal and indirect answer to which we have just referred was sufficient foundation for the first impeaching question. 70 C.J. 1118, 1119, section 1298; 28 R.C.L. 639, section 224. See, also, Sheldon v. Bigelow, 118 Iowa 586, 588, 92 N.W. 701. In any event, there was little if any prejudice to proponents from the overruling of their objection to the first question.
[5] V. In the order denying probate of the will a general administrator of the estate was appointed. Proponents contend, by reason of their appeal, this was premature. Since we hold no other assignment of error is well taken and there should be an affirmance, proponents now have no standing to urge this contention. They are not heirs and have no interest in the estate. In re Estate of Whitehouse, 223 Iowa 91, 272 N.W. 110, cited by proponents, is not in point. There the order of the lower court was stayed by this court, the case was reversed, and a new trial granted proponents.
VI. Contestants appealed from the overruling of their motion to set aside the jury's finding of mental capacity but ask that such appeal be considered only if the judgment in their favor should be reversed. Since we affirm the case on proponents' *Page 685
appeal, there is no occasion to consider contestants' cross-appeal. — Affirmed.
BLISS, C.J., and OLIVER, HALE, MILLER, SMITH, MANTZ, and MULRONEY, JJ., concur.
WENNERSTRUM, J., not sitting. | 01-03-2023 | 07-05-2016 |