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261 S.W.2d 465 (1953)
STATE
v.
CAMPER.
No. 14644.
Court of Civil Appeals of Texas, Dallas.
June 19, 1953.
Rehearing Denied July 17, 1953.
Second Rehearing Denied October 16, 1953.
*466 Price Daniel and John Ben Shepperd, Attys. Gen., Calvin B. Garwood, Jr., Edward Reichelt and Clyde B. Kennelly, Assts. Atty. Gen., all of Austin, Henry Wade, Dist. Atty., and John B. Webster, Asst. Dist. Atty., both of Dallas, for appellant.
Irwin & Irwin, Dallas, for appellee.
DIXON, Chief Justice.
This is an appeal by the State of Texas from a judgment in favor of B. W. Camper, defendant in a suit instituted by the State under authority of Art. 666-42, Vernon's Ann.Penal Code, for the forfeiture of 2723 bottles of liquor.
Appellee has filed a motion asking that the appeal be dismissed because, (1) the statement of facts was filed in the trial court after the fifty days allowed by Rule 381, Texas Rules of Civil Procedure; and (2) the order entered by the trial court was arbitrary and illegal because not based on "good cause" as required by the provisions of Rule 381.
The record discloses that on Sept. 20, 1952 the trial court by written order granted appellant a ten-day extension of time to file the statement of facts in the trial court. Thereafter the statement was filed in the trial court and approved by that court on Sept. 24, 1952, which was the 55th day. This was in time to permit filing of the record, and it was filed in the Court of Civil Appeals within 60 days as required by Rule 386, R.C.P.
Rule 1, R.C.P., provides that the Rules shall be given a liberal construction. It has long been the rule in this State that the trial court has a broad discretion in the matter of extending the time for filing a statement of facts in the trial court, provided such action does not delay the filing of the record in the Court of Civil Appeals. It has been held by our Supreme Court that the signed approval of the trial judge of the statement of facts is in itself a sufficient extending of time to permit the filing of the statement. Luse v. Gibson, 119 Tex. 15, 23 S.W.2d 328. Our present rule is based on the former Art. 2246, R.C.S., and we believe it should be given the same construction. Johnson Aircrafts, Inc., v. Wilborn, Tex.Civ.App., 190 S.W.2d 426, ref. w. m.
Appellee seeks to draw an analogy between the application and legal effect of Rules 381 and 386. The two rules are quite different in their wording and meaning. As pointed out in Matlock v. Matlock, Tex. Sup., 249 S.W.2d 587, Rule 386 by its wording is so restricted that the Court of Civil Appeals is left but little discretion in determining whether to permit the late filing of a transcript. This is not true of Rule 381. We do not believe the trial court abused its discretion in allowing the extension of time for filing the statement of facts in the trial court. Appellee's motion to dismiss is therefore overruled, and we shall proceed to a consideration of the appeal on its merits.
The case was tried to a jury. In answer to the only issue submitted, the jury found that appellee had not intended to distribute, sell, warehouse, store, or transport the liquor in question to some place other than *467 2024 Cedar Springs, or the corrugated iron building involved herein. The court overruled appellant's motion for judgment non obstante veredicto. The State appealed.
All of appellant's points of appeal may be boiled down to this one question: Did appellee, as shown by the uncontradicted evidence, and in violation of the statute, exercise the privilege granted to him under a package store permit for 2024 Cedar Springs Road at an address, place or location, or at premises other than those covered by his permit? In other words, has appellee violated the law by keeping the liquor in question at 2020 Cedar Springs instead of at 2024 Cedar Springs, the address named in his permit?
The material facts are undisputed. Appellee's written lease describes his premises as "a concrete block building approximately 14 feet by 20 feet * * * to be numbered 2024 Cedar Springs Road in the City of Dallas, Texas." In appellee's application for a package store permit, and in the permit itself (and appellee has had but one permit), the location and address are described only as 2024 Cedar Springs. Subsequent to his leasing the building for his package store, appellee obtained permission from his landlord, Carl J. Gallagher, to use part of Gallagher's warehouse at 2020 Cedar Springs to store whiskey. The closest points of the warehouse and the package store are 89 feet apart. The two buildings are not connected. There was no consideration to support this agreement, nor was any definite length of time involved. Gallagher used this warehouse to store cigarette machines, music boxes, and other amusement devices. He also kept cold soft drinks and beer there for his personal use.
The landlord, Gallagher, had extended the same favor to another of his tenants, Luther Brisendine, who operated a cafe in a building at 2022 Cedar Springs, next door to appellee's package store. Brisendine used part of the warehouse to store canned goods and used motors.
The warehouse at 2020 Cedar Springs is a corrugated iron structure whose dimensions are 50 by 24 feet. It contained no partitions. Appellee was not assigned any particular part of section to which he alone had access. He merely had permission to store his wares in any available space along with a number of other persons. Gallagher allowed appellee and Brisendine as well as several of his own employees to possess keys to the warehouse. In fact some six or seven persons had keys to the building and had access to it at all times, day or night.
On Oct. 29, 1951 appellee and Ira Burnett moved two truck loads of whiskey from 2024 Cedar Springs to the warehouse at 2020 Cedar Springs. They used appellee's Ford pick-up truck. Ira Burnett was a painter by trade. When out of work he would hang around appellee's package store, and from time to time was hired by appellee to do odd jobs. During that same day deliveries of whiskey were made by wholesale houses to 2020 Cedar Springs.
These activities were observed by liquor law enforcement officers. Early next morning under authority of a search warrant they entered the premises at 2020 Cedar Springs. Inside the building they found a Dodge truck loaded with whiskey. This truck bore Texas license plates, but in the truck the officers found Oklahoma license plates. The gasoline tank was full of fuel and there was extra gasoline in a five-gallon container. The serial numbers had been removed from the cases of liquor.
Appellee testified that because of inadequate space in his package store he intended to transport this Dodge truck load of whiskey to his home for safekeeping as soon as he could obtain permission from the Liquor Board to do so. He did not own the Dodge truck, but had rented it. He did not know who the owner was, as Ira Burnett had arranged for the renting of the truck.
The Texas Liquor Control Act contains numerous provisions for the regulation and control of alcoholic beverages. It is unlawful "to exercise any privilege granted by a permit except at the place, address, *468 premise, or location for which the permit is granted". (Emphasis supplied.) Art. 666-17(22), P.C. "Premise" as used in the statute, "shall mean * * * any adjacent premises, if directly or indirectly under the control of the same person." Art. 666-3a(7). A permit is a personal privilege and does not constitute property. Art. 666-13(b). Enforcement officers have a right to enter freely upon the licensed premises for purposes of inspection, investigation, or search. Art. 666-13(d); 666-17(4). Officers may seize alcoholic beverages kept, or transported in contravention of the Act. Art. 666-6(c). The act is to be construed for the accomplishment of the purposes for which it was enacted. Art. 666-2.
We are of the opinion that under the facts as shown in this record the property known as 2020 Cedar Springs Road cannot be considered the same, or any part of the place, address, premise, or location at 2024 Cedar Springs, for which appellee was granted a permit. We quote from a court in another jurisdiction: "* * * `Licensed premises' can mean only the premises described in the license and in which, under the terms of the license * * * alcoholic beverages may be sold. Where, as in this case, the premises are described only by street and number, it is plain that the licensed premises are the premises owned by the licensee at that address. * * *" Fortino v. State Liquor Authority, 273 N.Y. 31, 6 N.E.2d 86, 87.
The Legislature must have intended that the place where the privileges of a liquor permit may be exercised is to be designated with definiteness and exactness. Otherwise enforcement officers would have to grope in dark uncertainty as to where their jurisdiction lay in performing their duties of inspection, investigation, and search. They could not know where to find the "premises" named in the permit. The law was not intended to encourage licensees to play a game of hide and seek with inspection officers.
Appellee contends that 2020 Cedar Springs is "adjacent" to 2024 Cedar Springs, the address shown in his permit; hence he had a right under the statute to use the former address to store his liquor.
The word "adjacent" is relative and has more than one meaning. Sometimes it means near to, or neighboring, as appellee contends it means in this case. Sometimes it means adjoining, contiguous, or abutting, as contended by appellant. We think its meaning is "determinable principally by the context in which it is used, and the facts of each particular case, or by the subject-matter to which it is applied." Broun v. Texas & N. O. R. Co., Tex.Civ.App., 295 S.W. 670, 674. Under the facts of this particular case, we cannot accept appellee's theory that 2020 Cedar Springs is "adjacent" to 2024 Cedar Springs within the meaning of the statute.
It will be observed that the statute refers to "adjacent premises, if directly or indirectly under the control of the same person." (Emphasis supplied.) Art. 666-3a(7). In Black's Law Dictionary, 4th Edition (1951), "control" is defined as meaning "to exercise restraining or direct influence over; regulate; restrain; dominate; counteract; govern." It has also been defined as meaning "to manage, to govern, to have authority," hence it is synonymous with management. Hasley v. State, 87 Tex. Crim. 444, 222 S.W. 579, 580.
Even if we were to consider the warehouse at 2020 Cedar Springs as adjacent to appellee's package store, we certainly must say that the warehouse was not under appellee's control. It was under the control of Carl J. Gallagher. Appellee had a gratuitous permission to use part of it. His permission was not supported by any consideration. Gallagher could have withdrawn his permission at any time. Moreover various other persons also had permission from Gallagher to use the warehouse and were allowed to possess keys to it.
*469 In our opinion the trial court erred in overruling appellant's motion for judgment non obstante veredicto. Appellant's points on appeal are sustained. The judgment of the trial court is reversed and judgment is rendered in favor of appellant, forfeiting to the State of Texas the liquor in question.
Reversed and rendered.
On Motion for Rehearing.
We do not hold that an appealing party does not have to show good cause before a trial judge may extend the time for filing a statement of facts in the trial court under Rule 381, Texas Civil Procedure. We do hold that the trial judge is allowed a broad discretion in determining what is good cause under the named rule, provided such extension of time does not operate to delay the filing of the record in the Court of Civil Appeals, as required by Rule 386, T.C.P.
In this case, appellee says that the trial court abused his discretion in granting appellant an extension of time beyond 50 days to file the statement of facts in the trial court. Appellee's basis for this contention is a long-distance telephone conversation Sept. 20, 1952, in which appellant asked for the extension. In that conversation appellant did not give his reasons for asking the extension, nor did the trial court ask for them. On the same day, Sept. 20, 1952, the court entered an order granting the extension of time. Thereafter on Sept. 4, 1952 the statement of facts was filed in the trial court and also in the Court of Civil Appeals. This was on the 55th day from the time the motion for new trial was overruled, so was well within the 60-day period allowed by Rule 386.
The fact that good cause was not mentioned in the one particular telephone conversation of Sept. 20, 1952 does not of itself show that good cause did not exist, or that the trial judge had not been informed in some other way of the circumstances which constituted good cause. Until the contrary is shown we are required to presume that the trial judge complied with the law and acted upon good cause. Texas & N. O. Ry. Co. v. Davis, Tex.Civ. App., 60 S.W.2d 505; Dittman v. Model Banking Co., Tex.Com.App., 271 S.W. 75.
On Sept. 24, 1952 the trial judge signed the statement of facts and ordered it filed, after stating in writing that he had examined it, found it correct, and approved it. It has been held by our Supreme Court that this act alone is a sufficient extension of time to support a late filing of a record in the trial court. Luse v. Gibson, 119 Tex. 15, 23 S.W.2d 328. Therefore, to support appellee's contention we would have to hold that the trial judge abused his discretion first on Sept. 20, 1952 in entering an order to extend the time, and that he abused his discretion a second time on Sept. 24, 1952 in signing and approving the statement of facts and ordering it filed.
In Luse v. Gibson, supra, the Supreme Court was construing Art. 2246, V.R.C.S., upon which our present Rule 381 is based. The part of the Rule material here is the same as the statute except as to minor textual changes. As to the point we are discussing, Rule 381 has been given the same interpretation as the statute. Lambert v. Houston Fire & Casualty Ins. Co., Tex.Civ.App., 254 S.W.2d 405.
The motion for rehearing is overruled.
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261 S.W.2d 775 (1953)
COCA-COLA BOTTLING CO. OF JONESBORO
v.
MISENHEIMER.
No. 5-181.
Supreme Court of Arkansas.
November 9, 1953.
*776 Frierson, Walker & Snellgrove, Jonesboro, for appellant.
Bon McCourtney and Claude B. Brinton, Jonesboro, for appellee.
MILLWEE, Justice.
This appeal is from a judgment in favor of appellee, Mrs. Edward Misenheimer, against appellant Coca-Cola Bottling Company of Jonesboro, Arkansas, in the sum of $50 damages allegedly sustained by drinking from a bottle of Coca-Cola which contained a dead mouse.
At the conclusion of the testimony on behalf of plaintiff, and at the close of all the evidence, appellant requested a directed verdict in its favor, without indicating to the trial court the basis for such requests. Both requests were denied. The only assignments of error in the motion for new trial are: (1) the court erred in refusing appellant's requests for an instructed verdict, and (2) that the verdict is inconsistent with the instructions given. The question of the sufficiency of the evidence was not mentioned either at trial or in the motion for new trial.
For reversal, appellant says the case was tried under the doctrine of res ipsa loquitur, and it is now contended that the evidence was insufficient to meet the requirements of the doctrine because it was not shown that the bottle from which appellant drank was then in the same condition as when it left the exclusive custody and control of appellant. The assignment that the court erred in not directing a verdict for appellant must be overruled, if there is any substantial evidence, viewed in the light most favorable to appellee, to support the verdict. Arkansas Power & Light Company v. Connelly, 185 Ark. 693, 49 S.W.2d 387."
The testimony on behalf of appellee discloses that she lives with her husband and their three children in the little village of W'aldenburg, in Poinsett County, near the W. K. Neeley Company, where the husband is employed as a farm implement mechanic. In connection with the implement store, Neeley Company also operates a service station which handles soft drinks bottled by appellant. Appellee's husband quit work about 6 p. m. on August 17, 1952, when he purchased from the service station a case of assorted soft drinks containing several Coca-Colas bottled by appellant. The bottles remained sealed and capped while in the possession of the service station, and in the same condition when brought into the home by appellee's husband, shortly after 6 p. m. Appellee immediately *777 put the drinks into the refrigerator.
About 9 o'clock the following morning, appellee opened drinks for some children and a Coca-Cola for herself, using a bottle opener to remove the caps. Upon drinking one swallow of Coca-Cola, she immediately became nauseated and started vomiting. Her son then pointed out to her that the bottle contained a mouse, which was whole at that time but had a foul odor. It was in a state of decomposition when the bottle was introduced in evidence at the trial. Appellee was treated several times by a physician who testified as to her illness.
Although appellant has not abstracted the instructions, we will assume the case was tried on the theory of res ipsa loquitur, since there was no direct or affirmative proof of negligence on the part of appellant. We have held that under the doctrine of res ipsa loquitur a plaintiff must show that there was no opportunity for the contents and character of a bottled drink to have been changed from the time it left defendant's hands until the time of the alleged injury. See Coca-Cola Bottling Company of Fort Smith v. Hicks, 215 Ark. 803, 223 S.W.2d 762, and cases there cited.
Appellant's contention is that since appellee's husband did not testify, there was no showing that the Coca-Cola was the same beverage that he purchased, or if so, that it was in the same condition in which he bought it. In this connection, the clerk who sold the drinks testified the bottles remained capped and sealed at all times while in the store and were in the same condition when sold. Appellee testified that the drinks were purchased from the Neeley service station by her husband who brought them home while she was preparing the evening meal, and that she immediately put them in the refrigerator. There was no objection to this testimony, and on cross-examination she testified: "Q. Mrs. Misenheimer, when, on what date did you say your husband purchased that? A. On Monday afternoon, after he quit work at 6:00 o'clock. Q. This is one of the bottles he brought home? A. That is right. Q. You drank the contents the next day? A. Yes."
In Coca-Cola Bottling Company v. Cromwell, 203 Ark. 933, 159 S.W.2d 744, the bottled drink was left opened for a time in an automobile out in the woods in semidarkness before part of it was drunk, and for a considerable time thereafter before the cap was replaced. We held that a case was made for the jury, against the contention that contamination might have occurred while the bottle remained open in the car. See, also, The Coca-Cola Bottling Company v. Davidson, 193 Ark. 825, 102 S.W.2d 833; Hope Coca-Cola Bottling Company v. Jones, Ark. 1953, 257 S.W.2d 272.
We think the situation here is somewhat similar to that presented in the Hicks case, supra [215 Ark. 803, 223 S.W.2d 763], where we said: "In the light of the instructions, the jury must be taken to have determined that the breaking of the bottle, and the resultant injury to plaintiff's foot, were proximately caused not by any negligent act of the plaintiff herself, nor by any nonnegligent act of the plaintiff or anybody else, nor by any unascertained fact or event, but rather by the negligence of the defendant in the course of filling, charging, capping or otherwise preparing the bottle. In reaching that conclusion the minds of the jurors must have gone through a process of reasoning to the effect that since the bottle did explode, and since none of the possible explanations just enumerated were acceptable, to them, and since negligence in filling, charging, capping or otherwise preparing the bottle was a reasonable explanation of what had happened, the verdict should be arrived at in accordance with that reasonable explanation."
So here, we think the evidence is sufficient for the jury to have determined that the presence of the mouse in the bottle, and the resultant injury to appellee, were proximately caused not by any negligent or nonnegligent act of the Neeley Company, *778 the appellee or her husband, nor by any unascertained event, but rather by the negligence of the appellant in preparing the bottle. On the whole case, we hold the evidence sufficient to sustain a jury finding that there was no opportunity for the content and character of the bottle of Coca-Cola to have been changed from the time it left appellant's hands until appellee drank from it. The judgment is, therefore, affirmed.
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261 S.W.2d 339 (1953)
CLARK
v.
STATE.
No. 26141.
Court of Criminal Appeals of Texas.
January 14, 1953.
Rehearing Denied April 8, 1953.
Certiorari Denied October 19, 1953.
*340 Robert C. Benavides, James H. Martin and Newton Kennedy, Dallas, and William C. McDonald, San Angelo, (on appeal only), for appellant.
Earl Smith, Dist. Atty., H. C. Upton, Special Prosecutor and B. W. Smith, Special Prosecutor, San Angelo, George P. Blackburn, State's Atty., of Austin, for the State.
Certiorari Denied October 19, 1953. See 74 S. Ct. 69.
MORRISON, Judge.
The offense is murder; the punishment, death.
The deceased secured a divorce from appellant on March 25, 1952. That night she was killed, as she lay at home in her bed, as the result of a gunshot wound. From the mattress on her bed, as well as from the bed of her daughter, were recovered bullets which were shown by a firearms expert to have been fired by a .38 special revolver having Colt characteristics. Appellant was shown to have purchased a Colt .38 Detective Special some ten months prior to the homicide.
The State relied in main upon three witnesses to establish its case.
Appellant's former step-daughter, the daughter of deceased, testified that she awoke on the night in question and saw appellant standing by her bed; that she asked him what he was doing there; and he said that he had come to ask her help in persuading her mother to come back to him. The witness declined to be of such aid, and the appellant said, "That is all I *341 wanted to know." She then saw a pistol in his hand.
Tomas Menchaca testified that he had been in appellant's employ for fourteen years and that he was with the appellant throughout the night of the homicide. He stated that, as they drove about the city throughout the early part of the night, they discussed the fact that appellant's wife had divorced him that day. Menchaca related that during the course of the night the appellant announced that he wanted to talk to his wife; that at the time appellant was armed with one large and one small pistol; that they parked near deceased's home, and the appellant left him in the automobile for approximately thirty minutes. The witness stated that while he was waiting for appellant he heard a noise that sounded like a shot, but that when appellant returned he reported that he had had a long talk with his wife. Menchaca related that upon their return to the hotel appellant wrote a letter, stated that he was going to place a long distance call to a friend in Dallas, sent the witness out to mail a letter; and when the witness returned he overheard appellant's last statement over the telephone as follows, "All right, I will do it." The witness related that following the telephone conversation he and the appellant left the hotel again; that appellant was still wearing the two pistols; that after driving a distance appellant let him out of the automobile and told him to wait; that he did so; that appellant returned in some twenty minutes; and when they got back to the hotel he noticed that the smaller of the two pistols was missing from appellant's person; that appellant warned him not to disclose what they had done that night; but that at no time had appellant confided in him concerning his activities further than as set forth above. Menchaca identified the knife found in deceased's bed as belonging to appellant. The witness admitted that he had been charged as an accessory, had been placed in jail for a while, and had failed to disclose what he knew to the prosecuting officials when first questioned by them.
Marjorie Bartz, a telephone operator in the City of San Angelo, testified that at 2:49 in the morning of March 26, 1952, while on duty, she received a call from the Golden Spur Hotel; that at first she thought the person placing the call was a Mr. Cox and so made out the slip; but that she then recognized appellant's voice, scratched out the word "Cox" and wrote "Clark." She stated that appellant told her he wanted to speak to his lawyer, Jimmy Martin in Dallas, and that she placed the call to him at telephone number Victor 1942 in that city and made a record thereof, which record was admitted in evidence. Miss Bartz testified that, contrary to company rules, she listened to the entire conversation that ensued, and that it went as follows:
The appellant: "Hello, Jimmy, I went to the extremes."
The voice in Dallas: "What did you do?"
The appellant: "I just went to the extremes."
The voice in Dallas: "You got to tell me what you did before I can help."
The appellant: "Well, I killed her."
The voice in Dallas: "Who did you kill; the driver?"
The appellant: "No, I killed her."
The voice in Dallas: "Did you get rid of the weapon?"
The appellant: "No, I still got the weapon."
The voice in Dallas: "Get rid of the weapon and sit tight and don't talk to anyone, and I will fly down in the morning."
It was stipulated that the Dallas telephone number of appellant's attorney was Victor 1942.
Appellant testified in his own behalf and claimed that he was emotionally upset and did not remember the events of the evening.
*342 The issue of insanity was raised by the testimony of other witnesses and resolved against the appellant by the jury. We find the evidence sufficient to support the verdict.
We now discuss the contentions raised by appellant's able counsel in their carefully prepared brief.
Proposition (1) is predicated upon the contention that Miss Bartz did not know the identity of the parties whose conversation she overheard. Miss Bartz testified that she had placed long distance calls for appellant before the night in question and that she recognized his voice when he placed the call to his lawyer Jimmy Martin in Dallas. It was stipulated that the telephone number on the company record of the call introduced in evidence was that of appellant's attorney in Dallas. Recently, in Schwartz v. State, Tex.Cr.App., 246 S.W.2d 174, we had occasion to quote with approval from 22 C.J.S., Criminal Law, § 644, relating to the same contention, as follows:
"The completeness of the identification goes to the weight of the evidence, and not to its admissibility. Whether evidence of a telephone conversation is admissible rests in the discretion of the trial court."
In Collins v. State, 77 Tex. Crim. 156, 178 S.W. 345, 355, this Court quoted with approval from Encyclopedia of Evidence as follows:
"Voice is a competent means of identification if the witness had any previous acquaintance with the person identified. It is sufficient that the witness has heard such person's voice but once previous to the time in question."
In Streight v. State, 62 Tex. Crim. 453, 138 S.W. 742, this Court held admissible the testimony of the telephone operator who overheard a conversation between the accused and Mrs. Neff. See also Stepp v. State, 31 Tex. Crim. 349, 20 S.W. 753.
Proposition (1b) is predicated upon the contention that the court erred in admitting the testimony of the telephone operator, because the conversation related was a privileged communication between appellant and his attorney.
As a predicate to a discussion of this question, we note that the telephone operator heard this conversation through an act of eavesdropping.
In 20 Am.Jur., p. 361, we find the following:
"Evidence procured by eavesdropping, if otherwise relevant to the issue, is not to be excluded because of the manner in which it was obtained or procured * * *."
This Court has recently, in Schwartz v. State, supra, affirmed by the Supreme Court of the United States on December 15, 1952, 73 S.Ct 232, authorized the introduction of evidence secured by means of a mechanical interception of a telephone conversation.
We now discuss the question of the privileged nature of the conversation. Wigmore on Evidence (Third Edition), Section 2326, reads as follows:
"The law provides subjective freedom for the client by assuring him of exemption from its processes of disclosure against himself or the attorney or their agents of communication. This much, but not a whit more, is necessary for the maintenance of the privilege. Since the means of preserving secrecy of communication are entirely in the client's hands, and since the privilege is a derogation from the general testimonial duty and should be strictly construed, it would be improper to extend its prohibition to third persons who obtain knowledge of the communications."
The precise question here presented does not appear to have been passed upon in this or other jurisdictions.
In Hoy v. Morris, 13 Gray 519, 79 Mass. 519, a conversation between a client and his attorney was overheard by Aldrich, who was in the adjoining room. The Court therein said:
*343 "Aldrich was not an attorney, not in any way connected with Mr. Todd; and certainly in no situation where he was either necessary or useful to the parties to enable them to understand each other. On the contrary, he was a mere bystander, and casually overheard conversation not addressed to him nor intended for his ear, but which the client and attorney meant to have respected as private and confidential. Mr. Todd could not lawfully have revealed it. But, in consequence of a want of proper precaution, the communications between him and his client were overheard by a mere stranger. As the latter stood in no relation of confidence to either of the parties, he was clearly not within the rule of exemption from giving testimony; and he might therefore, when summoned as a witness, be compelled to testify as to what he overheard, so far as it was pertinent to the subject matter of inquiry upon the trial * * *."
In Walker v. State, 19 White & W. 176, we find the following:
"Mrs. Bridges was not incompetent or disqualified because she was present and heard the confessions made by defendant, even assuming that the relation of attorney and client subsisted in fact between him and Culberson."
The above holding is in conformity with our statute, Article 713, Code Cr.Proc.
"All other persons, except those enumerated in articles 708 and 714, whatever may be the relationship between the defendant and witness, are competent to testify, except that an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship."
Attention is also called to Russell v. State, 38 Tex. Crim. 590, 44 S.W. 159.
Appellant relies upon Gross v. State, 61 Tex. Crim. 176, 135 S.W. 373, 376, 33 L.R.A.,N.S., 477, wherein we held that a letter written by the accused to his wife remained privileged even though it had fallen into the hands of a third party. We think that such opinion is not authority herein, because therein we said:
"There is a broad distinction between the introduction of conversations overheard by third parties occurring between husband and wife and the introduction of letters written by one to the other, as shown by practically, if not all, the authorities. It is unnecessary to take up or discuss the question as to conversations going on between husband and wife which are overheard by other parties. That question is not in the case, and it is unnecessary to discuss it. We hold that the introduction of the contents of the letter through the witness Mrs. Maud Coleman was inadmissible. It was a privileged communication under the statute, and therefore interdicted. Article 774, Code of Criminal Procedure."
And, further on in the opinion, we find the following:
"Not minimizing the same relation of client and attorney, but we do say that the relation between husband and wife is far more sacred, and to be the more strongly guarded, than that of relation between attorney and client."
We hold that the trial court properly admitted the evidence of the telephone operator.
Proposition (2) relates to the failure of the trial court to charge the jury on the issue of fact as to whether the witness Menchaca was an accomplice witness; he also contends the facts make Menchaca an accomplice witness as a matter of law.
Menchaca was charged in the Justice Court of Tom Green County by a complaint alleging him to be accessory to appellant in that he helped him evade arrest for the murder of deceased and aided him in disposing of the murder weapon. The record is silent on the question of the disposition *344 of the aforesaid complaint. While it is true that the pendency at the time of trial of an indictment charging the witness with being an accomplice to the principal on trial would render such witness an accomplice witness as a matter of law, Crissman v. State, 93 Tex. Crim. 15, 245 S.W. 438, yet such is not true where only a complaint has been filed which has not been shown to have eventuated in an indictment. Harwell v. State, 149 Tex. Crim. 43, 191 S.W.2d 36. The witness stated that he stayed in jail a few days. Nothing further was developed. We hold that the witness was not an accomplice as a matter of law.
We now move to an examination of the facts to determine whether the trial court should have submitted the issue to the jury.
The knowledge that an offense has been committed is set forth in the Code as an essential ingredient of the offense of being an accessory. Article 77, Pen.Code. Such knowledge need not be "full, perfect, and absolute consciousness of all the salient features of the evidence going to show the principal's guilt", but there must be knowledge that an offense has been committed and that the principal committed the same. Dent v. State, 43 Tex. Crim. 126, 65 S.W. 627, 630.
We have carefully reviewed the testimony of the witness and are impressed with the following facts:
1. The witness had never attended school and was engaged in menial work; he had been the appellant's servant for fourteen years, and he seemed to accept without questioning whatever the appellant told him. We cannot attribute to such a witness the degree of mental alertness that we might another individual. If he knew that an offense had been committed, he knew it only by deduction, because appellant never at any time told him that he had killed his wife. In fact, appellant's conduct, as will be shown below, demonstrates that appellant did not want the witness to know what had transpired, and we feel that he was successful in his efforts.
2. Appellant left him in the automobile when he went to the home of the deceased, and at a distance that would render his hearing any shots improbable.
3. When appellant returned to the automobile, he told the witness that he had had a long talk with his wife.
4. When appellant made the telephone call to his attorney, he did so at a time when he had sent the witness out of the room.
5. When appellant made the subsequent trip, presumably to get rid of the murder weapon, he told the witness he wanted to talk to a friend and left the witness standing on a street corner.
The failure of the witness to disclose what he knew concerning appellant's conduct on the night in question, when first being interrogated by the properly constituted investigating authorities, does not make him an accomplice witness. Tipton v. State, 126 Tex. Crim. 439, 72 S.W.2d 290. There is no showing in the case at bar that Menchaca told the authorities anything that was false.
We hold that under the facts of this case the court did not err in refusing to submit the issue to the jury.
Proposition (4) relates to several bills of exception growing out of proof that appellant, while at the home of deceased on the night of the homicide, also assaulted his step-daughter with the intent to murder her.
If there was any error committed, it was an error against the State. The entire transaction, even though it included other offenses, would have been admissible. Sims v. State, Tex.Cr.App., 240 S.W.2d 297, and Salazar v. State, 137 Tex. Crim. 448, 131 S.W.2d 761.
Finding no reversible error, the judgment of the trial court is affirmed.
On Appellant's Motion for Rehearing.
WOODLEY, Judge.
We are favored with masterful briefs and arguments in support of appellant's motion *345 for rehearing, including amicus curiae brief by an eminent and able Texas lawyer addressed to the question of privileged communications between attorney and client.
Other grounds for rehearing urged are (1) the refusal of an affirmative charge requested by appellant on temporary insanity growing out of his domestic trouble, and (2) the failure of the trial court to submit the question to the jury as to whether the witness Menchaca was an accomplice.
These contentions will be considered in reverse of the order in which they are above stated.
Appellant does not now question the correctness of our holding that the mere filing of a complaint against Menchaca in connection with the murder of Mrs. Clark did not make him an accomplice as a matter of law. He insists, however, that the court erred in failing to submit to the jury the question of whether Menchaca was an accomplice.
The charge was not objected to for the failure to submit the issue to the jury, but because the court declined to instruct the jury that Menchaca was an accomplice as a matter of law. But without regard to the sufficiency of the objection, we are unable to agree that the failure of the trial court to submit to the jury the question of whether Menchaca was an accomplice constitutes reversible error.
We recognize the rule advanced by appellant to the effect that where one who has taken part in the commission of an offense endeavors by his own testimony to show his innocent intention, his relation to the crime becomes a question of fact for the jury. But as we view the testimony there is no evidence to show that Menchaca took part in the murder, either as a principal, an accomplice or an accessory. There was therefore no fact situation showing a guilty connection from which Menchaca was called upon to extricate himself by his testimony.
Menchaca was merely the personal attendant or companion of appellant on the night in question, in the capacity of an employee of appellant and of the hotel owned in part by appellant. He was assigned by the hotel manager and by appellant to that role. There is no testimony to show that he knew that the offense of murder was contemplated, planned or executed by appellant. Nor is it shown that he became a party by any act or conduct after the killing. The fact that he remained silent when first questioned as to the whereabouts and activity of appellant on the night in question did not constitute him an accessory.
As to the charge on insanity, the charge as presented to appellant's counsel contained rather full instructions and definitions on insanity as a defense to crime. Appellant objected to these instructions as being incomplete and requested that in lieu thereof the court substitute his requested charge No. 1.
An examination of appellant's requested charge No. 1 reveals that it does not contain the instruction on temporary insanity "resulting from his worry over his domestic affairs" which is the crux of his present complaint.
Appellant's requested charge No. 4 was given to the jury and reads as follows:
"You are further instructed as a part of the law in this case, that there is no limited time when insanity can exist in the mind of a person which renders said person excusable from an unlawful act, and, so in this case, although you may find and believe from the evidence that the defendant was sane prior to the homicide and sane after the homicide, yet if you believe from all the evidence that the defendant was insane at the very time he killed Laverne Clark, if he did, as the term insanity is defined to you in the Court's main charge, you will acquit him on the grounds of insanity."
"In passing on the question as to whether he was insane at the very time he shot and killed Laverne Clark, if he did, you may take into consideration the acts and conduct of the defendant *346 before the homicide, at the time of the homicide and after the homicide, as pointed out in the Court's main charge."
The contention is advanced that this conviction should be reversed because of the refusal of the court to give appellant's requested charge No. 2, reading as follows:
"You are further instructed as a part of the law in this case, that there is no limited time when insanity should exist in the mind of a person to excuse them from an unlawful act, and, so in this case, if you find and believe by a preponderance of the evidence that although the defendant was sane immediately prior to the homicide and sane immediately after the homicide but was insane, from any knowledge the defendant might have had with reference to the relationship between Laverne Clark and a man or men, if any, or for any other reason, as the term insanity is defined in the Court's main charge, at the time he shot and killed Laverne Clark, if he did, then you will acquit him on the grounds of insanity."
We find no exception to the refusal of the requested charges.
We remain convinced that the court amply protected appellant's rights when he gave his requested charge No. 4 instructing the jury to acquit if they believed "from all of the evidence that the defendant was insane at the very time of the killing, even though they found him to have been sane prior to and after the homicide."
We are not impressed with the argument regarding the instruction found elsewhere in the charge regarding temporary insanity from the recent voluntary use of intoxicating liquor.
There are no exceptions to the charge upon the ground that it was "a conglomeration and was not a clear and affirmative charge" nor that it was vague or indefinite or "calculated to confuse and mislead the jury", which are the complaints now advanced. In fact we find no objection to the submission of temporary insanity caused by the use of intoxicating liquor in mitigation of the punishment and for aught we know the instruction may have been given at appellant's suggestion or request. At any rate, the instructions are separate and distinct, and not confusing.
The sole ground of objection to the court's charge on insanity was that it was incomplete and failed to instruct the jury that insanity may be continuous or may be "periodical". The objections might be disposed of because it is not shown that they were timely presented or that an exception was reserved. The record shows that defendant "excepts to the court's main charge" and bears the notation "Overruled", over the signature of the judge, but no exception appears to the court's action in overruling the objections.
Because of the punishment assessed we have, both here and on original submission, considered and discussed the contentions raised. However we direct attention to the fact that the law regarding the reserving of exceptions applies to all appeals to this court, including convictions carrying the death penalty.
We remain convinced that no reversible error is shown in the court's instructions to the jury.
As to the testimony of the telephone operator regarding the conversation between appellant and Mr. Martin, the conversation is set forth in full in our original opinion. Our holding as to the admissibility of the testimony of the operator is not to be considered as authority except in comparable fact situations.
For the purpose of this opinion we assume that the Dallas voice was that of Mr. Martin, appellant's attorney. If it was not appellant's attorney the conversation was not privileged.
It is in the interest of public justice that the client be able to make a full disclosure to his attorney of all facts that are material to his defense or that go *347 to substantiate his claim. The purpose of the privilege is to encourage such disclosure of the facts. But the interests of public justice further require that no shield such as the protection afforded to communications between attorney and client shall be interposed to protect a person who takes counsel on how he can safely commit a crime.
We think this latter rule must extend to one who, having committed a crime, seeks or takes counsel as to how he shall escape arrest and punishment, such as advice regarding the destruction or disposition of the murder weapon or of the body following a murder.
One who knowing that an offense has been committed conceals the offender or aids him to evade arrest or trial becomes an accessory. The fact that the aider may be a member of the bar and the attorney for the offender will not prevent his becoming an accessory.
Art. 77, P.C. defining an accessory contains the exception "One who aids an offender in making or preparing his defense at law" is not an accessory.
The conversation as testified to by the telephone operator is not within the exception found in Art. 77, P.C. When the Dallas voice advised appellant to "get rid of the weapon" (which advice the evidence shows was followed) such aid cannot be said to constitute aid "in making or preparing his defense at law". It was aid to the perpetrator of the crime "in order that he may evade an arrest or trial."
Is such a conversation privileged as a communication between attorney and client?
If the adviser had been called to testify as to the conversation, would it not have been more appropriate for him to claim his privilege against self-incrimination rather than that the communication was privileged because it was between attorney and client?
Appellant, when he conversed with Mr. Martin, was not under arrest nor was he charged with a crime. He had just inflicted mortal wounds on his former wife and apparently had shot her daughter. Mr. Martin had acted as his attorney in the divorce suit which had been tried that day and had secured a satisfactory property settlement. Appellant called him and told him that he had gone to extremes and had killed "her", not "the driver". Mr. Martin appeared to understand these references and told appellant to get rid of "the weapon".
We are unwilling to subscribe to the theory that such counsel and advice should be privileged because of the attorney-client relationship which existed between the parties in the divorce suit. We think, on the other hand, that the conversation was admissible as not within the realm of legitimate professional counsel and employment.
The rule of public policy which calls for the privileged character of the communication between attorney and client, we think, demands that the rule be confined to the legitimate course of professional employment. It cannot consistent with the high purpose and policy supporting the rule be here applied.
The murder weapon was not found. The evidence indicates that appellant disposed of it as advised in the telephone conversation. Such advice or counsel was not such as merits protection because given by an attorney. It was not in the legitimate course of professional employment in making or preparing a defense at law.
Nothing is found in the record to indicate that appellant sought any advice from Mr. Martin other than that given in the conversation testified to by the telephone operator. We are not therefore dealing with a situation where the accused sought legitimate advice from his attorney in preparing his legal defense.
Some of the citations and quotations have been deleted from our original opinion.
We remain convinced that the appeal was properly disposed of on original submission.
Appellant's motion for rehearing is overruled.
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261 S.W.2d 480 (1953)
TEXAS EMPLOYERS INS. ASS'N
v.
KELLY.
No. 12595.
Court of Civil Appeals of Texas, Galveston.
July 22, 1953.
Rehearing Denied October 22, 1953.
*481 Fulbright, Crooker, Freeman & Bates, Walter E. Babel, Jr., of Houston, for appellant.
F. Warren Hicks, Walter L. Sutherland, of Houston, for appellee.
CODY, Justice.
This is an appeal from an order overruling the plea of privilege filed by appellant, the Texas Employers Insurance Association, the compensation carrier for appellee's employer. The suit was brought in Harris County by appellee, John B. Kelly, to set aside a compromise settlement of appellee's claims against appellant for compensation benefits for injuries received by appellee on September 6, 1952, in the course of his employment with the Texas Pipe Bending Corporation.
Appellant's residence is in Dallas County. Appellee did not deny that such was the county of appellant's residence, but by his controverting plea, alleged venue in Harris County by virtue of Sections 7 and 9 of R.C.S. Art. 1995, Vernon's Ann.Civ.St. art. 1995, subds. 7, 9, respectively, relating to cases of fraud, and to cases of affirmative trespass.
At the time appellee received his injury he was 21 years old, married, and the father *482 of three children. The injury resulted from a fall which temporarily numbed his legs. He was taken to the Parkview Hospital in Houston, where he stayed for some two weeks under the care of Dr. J. T. Ainsworth who was employed by appellant, and who made reports to appellant on appellee's condition. Appellee was unable to return to work for some eight to ten weeks after his injury, and then could only do light duties, such as he could perform while sitting.
Appellee had been told by Dr. Ainsworth and appellant's adjuster, Jack, Keith, that he had an acute back strain. It did appear from appellee's testimony, who, incidentally was the only witness to testify, that before the settlement agreement was executed, that he was told by Dr. Ainsworth that a mere back strain should have shown more improvement; and appellee further testified that Dr. Ainsworth sent him to see a specialist. Appellee never received any report as to said specialist's opinion or findings as to his condition.
On December 3, 1952, appellee was called to the office of his employer, in Houston. Two of appellant's adjusters were there, one of them being the aforesaid Keith; and appellee's employer, Mr. Raymond Beeley (the owner of the Texas Pipe Bending Corporation) also was in the office and participated in the negotiations or representations to the extent hereafter noted. Mr. Keith there represented to appellee that he wanted to close his books for the year; and insisted that appellee had only an "acute back strain" which was improving, and harped on how badly in need of money appellee was. From the evidence as to what representations were made to appellee at said meeting of December 3, 1952, the court was warranted in concluding that Mr. Keith and Mr. Beeley represented that if appellee would sign the agreement, he would have his job with his employer for as long as he wanted it. Appellee testified that he relied on all the representations made to him at said meeting. The settlement agreed upon was that appellee should receive $100 for his release of which $35 was paid. On December 12, 1952, the Industrial Accident Board approved the settlement as agreed upon when it should be consummated. Immediately thereafter appellee was discharged by his employer.
Appellee's lawyers, whom he had employed some month or two prior to the execution of the settlement agreement, acting for appellee, declined on behalf of appellee to complete the settlement, and appellee declined to receive the remaining $65 of the agreed $100. The evidence further showed that appellee's lawyers had sent appellee to a doctor to be examined prior to the time of the agreed settlement. Appellee had not received a report from such doctor as to his condition at the time the settlement was agreed to on December 3, or approved by the Industrial Accident Board on December 12. It is a fair inference from the evidence that appellant did not know appellee had employed lawyers, or had been sent to see a doctor of his lawyer's choice at the time of the settlement. The evidence shows that appellee's lawyers did not know that appellee was settling his claim behind their back.
The court, trying the case without a jury, made the order overruling the plea of privilege, as stated above. No conclusions of fact or law were requested, and none were filed.
Appellant predicates its appeal upon four points to the effect (1) there was no evidence to show that appellant committed a fraud upon appellee in Harris County, Texas, and (2) that there was insufficient evidence to show that appellant so committed a fraud on appellee in Harris County, and (3) that there was no evidence to show that appellant committed an affirmative trespass upon appellee in Harris County, and (4) that the evidence was insufficient to show that appellant so committed an affirmative trespass in Harris County.
We overrule appellant's points 1 and 2. From the evidence, which stands undisputed in the record, appellee received a painful injury on September 6, 1952, which required that he be treated in the hospital for some two weeks, and which prevented him from returning to work for some eight to ten weeks. The evidence *483 shows that he still suffers such pain that it greatly hampers him when he tries to work. The evidence will reasonably support the inference that Dr. Ainsworth represented to appellee, and believed it, that appellee had an "acute back strain," which would soon pass. That is to say, Dr. Ainsworth in effect represented to appellee that his injury was a minor one from which he would soon recover. It was not necessary for the doctor to know that his representation was not true to charge his employer with liability for legal fraud if said representation was not true, and was believed and acted upon by appellee. O'Quinn v. Texas Employers Insurance Association, Tex.Civ. App., 219 S.W.2d 119, 122. The doctor subsequently became doubtful that the injury was a mere "acute back strain," and communicated this doubt to appellee, and sent appellee to see a specialist. Appellee never received any report as to such specialist's findings, nor learned whether such specialist confirmed Dr. Ainsworth's original representation. Appellee could reasonably conclude that the adjusters, who represented to him on December 3, 1952, that he would soon be recovered from his injury, were speaking from their doctors' reports. We have concluded that the court was warranted in sustaining jurisdiction under Subdivision 7 of Article 1995, as for a fraud committed on appellee in Harris County. It was competent for appellee to testify that his back continued to hurt, and that he could see no improvement at the time of the trial. Coca Cola Bottling Co. of Ft. Worth v. McAlister, Tex.Civ.App., 256 S.W.2d 654, 656.
Furthermore, the court was, we believe, warranted in concluding that the representation to appellee that he could have his job as long as he wanted it was a fraud committed in Harris County, fixing venue there under Subdivision 7 of Article 1995. Appellee was discharged right after the Industrial Accident Board approved the settlement. The court could conclude that such representation was knowingly false when made. See Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873, 874; Squyres v. Christian, Tex.Civ.App., 242 S.W.2d 786, 791; 20 Tex.Jur. 162. An inadequate consideration will authorize the court to find fraud upon slight evidence. Swink v. City of Dallas, Tex.Com.App., 36 S.W.2d 222, 227. The cases cited by appellant to the effect that appellee was bound by what his lawyers did, or what his own doctor might have learned about the nature of his injury, are not in point. The evidence shows that appellee's lawyers had taken no active steps in the case on or before December 3, 1952, and that appellee had received no report from his doctor.
We now pass to a discussion of whether the evidence is sufficient to support the court's presumed finding that the facts were sufficient to show an affirmative trespass committed on appellee in Harris County so as to support venue in Harris County under Subdivision 9, Article 1995. We recently reviewed the authorities bearing on the meaning of "trespass" as used in said Subdivision in Banana Supply Co. v. Driskell, Tex.Civ.App., 250 S.W.2d 595, 598. We there found that the Supreme Court had not departed from its early holding that "trespass" as there used "was intended to embrace only actions for such injuries as result from wrongful acts willfully or negligently committed, and not those which result from a mere omission to do a duty." We do not believe that a mere fraudulent representation is in and of itself a wrongful act so as to constitute a "trespass" within the meaning of Subdivision 9, Article 1995, and so hold that the evidence was not sufficient to support holding venue in Harris County under Subdivision 9. In any case we do not hold that venue was fixed in Harris County under Subdivision 9.
But having overruled appellant's points 1 and 2, we must affirm the trial court's action in overruling appellant's plea of privilege.
Affirmed.
MONTEITH, C. J., not sitting.
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318 Pa. Super. 407 (1983)
465 A.2d 19
Gerald L. SCANTLIN, Appellant,
v.
Richard H. ULRICH, individually, and d/b/a Richard H. Ulrich Assembly.
Supreme Court of Pennsylvania.
Argued April 13, 1983.
Filed August 19, 1983.
*408 David C. Raker, Williamsport, for appellant.
Richard A. Gray, Williamsport, for appellee.
Before HESTER, CAVANAUGH and POPOVICH, JJ.
POPOVICH, Judge:
On March 11, 1981, appellant, Gerald L. Scantlin, filed a complaint in trespass against appellee, Richard H. Ulrich, individually, and also appellee's company, Richard H. Ulrich *409 Assembly. The first two counts of the complaint alleged that appellant was injured because of appellee's deliberate, wilfull, and malicious act. The third and fourth counts alleged appellee's gross negligence. On June 5, 1981, appellee filed a motion for judgment on the pleadings. The trial court found that appellant's injury was covered by his employer's workmen's compensation insurance and that appellant received benefits thereunder from March 17, 1979, through November 9, 1980. The court below found that the Pennsylvania Workmen's Compensation Act[1] provided appellant's exclusive remedy and, accordingly, granted appellee's motion for judgment on the pleadings. This appeal followed. We affirm.
In Eberhart v. Nationwide Mutual Insurance Co., 238 Pa.Super. 558, 362 A.2d 1094 (1976), we stated:
"When ruling on a defendant's motion for judgment on the pleadings, the complaint, the answer containing new matter, and the reply to new matter shall be considered. Herman v. Stern, 419 Pa. 272, 276 n. 1, 213 A.2d 594, 596 n. 1 (1965). Further, as this Court stated in Kroiz v. Blumenfeld, 229 Pa.Super. 194, 197, 323 A.2d 339, 340 (1974):
`The standards for determining whether a judgment on the pleadings should be allowed are clear. . . . All of the opposing party's well pleaded facts must be accepted as true. Bata v. Central Penn National Bank, 423 Pa. 373, 224 A.2d 174 (1966); Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (1965). A judgment on the pleadings should be granted only when a case is free from doubt and a trial would be a fruitless exercise. Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972).' (Emphasis in original)."
Id., 238 Pa.Superior Ct. at 560, 362 A.2d at 1095.
Appellant contends that his receipt of workmen's compensation benefits does not preclude him from pursuing an *410 action at common law to recover for injuries intentionally caused by his employer. Appellant relies on Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980), where we held that an employee's prior receipt of workmen's compensation benefits did not bar a common law action against his employer to recover damages for injuries intentionally inflicted by a third party. In Mike, a borough police officer was severely beaten by township constables in the borough police station in the presence of the assistant police chief of the borough. We analyzed the relevant provisions of the Workmen's Compensation Act as follows:
"The act provides the workman a measure of protection against all injuries `arising in the course of his employment and related thereto.' Sec. 301(c), (77 P.S. § 411). `By virtue of the Act, an employee's common law right to damages for injuries suffered in the course of his employment as a result of his employer's negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer's liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated.' Socha v. Metz, 385 Pa. 632, 637, 123 A.2d 837, 839-40 (1956); Turner Construction Co. v. Hebner, [276] Pa.Super. [341], 419 A.2d 488 (1980). The Act provides an important exception to this rule, however:
The term `injury arising in the course of his employment', as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment. § 301(c), supra.
This definition specifically excludes from the Act's coverage an assault or attack by third persons because of personal animosity against the employee and which does not result because of the relationship between employer and employee. `In such a case, the plaintiff is permitted *411 to pursue his common law remedy.' Dolan v. Linton's Lunch, 397 Pa. 114, 125, 152 A.2d 887, 893 (1959); McBride v. Hershey Chocolate Corp., 200 Pa.Super. 347, 188 A.2d 775 (1963); Workmen's Compensation App. Bd. v. Borough of Plum, 20 Pa.Cmwlth. 35, 340 A.2d 637 (1975)."
Mike, supra, 279 Pa.Superior Ct. at 387, 388, 421 A.2d at 253, 254. Officer Mike based his trespass action on the failure of the borough to provide him with a safe working place. More particularly, he alleged that the borough was negligent in failing to foresee the attack and to take steps to stop the assault. We found that there was sufficient evidence to sustain the jury's finding that the attack on Officer Mike was motivated by personal reasons, and that the borough should have foreseen the possibility of violent acts by the constables. We held that in order to prevent a double recovery, the amounts received by Mike as workmen's compensation would be credited against any recovery from the negligence action.
In granting judgment on the pleadings in the instant case, the lower court relied on Gillespie v. Vecenie, 292 Pa.Super. 11, 436 A.2d 695 (1981), where an employee, Gillespie, sued his employer and a co-worker for personal injuries sustained because of an intentional attack on the employee by the co-worker. The trial court sustained preliminary objections to the complaint and dismissed the suit holding that the attack was work related and, furthermore, that the employer could not be vicariously liable for the actions of an employee. We reversed, following Mike v. Aliquippa, finding that the complaint alleged that the attack was caused by:
"`Pure personal hatred toward the plaintiff . . .': `Personal animosity . . . in no way resulted [sic] out of a relationship between an employer and an employee or . . . between two co-employees' . . . saying `. . . this has nothing to do with the job, this is between us.'" Gillespie, supra, 292 Pa.Superior Ct. at 15, 436 A.2d at 697. *412 We held that the employee had to be given the opportunity to prove the averments in his complaint regarding the employer's failure to provide a safe work place.
The lower court in the present case mistakenly relied on a statement made at the end of Gillespie to the effect that after an injury had been compensated under the Workman's Compensation Act, an employee could not join his employer in a suit against a third party. However, this statement immediately followed our holding that Gillespie clearly should be permitted the opportunity to prove his case against his co-worker despite certain inadequacies in the record which might affect Gillespie's action against his employer for failing to provide a safe work place. The statement was obviously meant to clarify the previously stated position that an employer cannot be vicariously liable for the intentional acts of his employee. Rather, when an employee's intentional act, motivated by personal reasons, was foreseeable by the employer, the employer may be liable on a negligence theory for not providing a safe work place. Although the court below disposed of this case on the basis that Gillespie overruled Mike, supra, when in fact both cases stand for the same proposition, we may affirm the action of the lower court on a different rationale than that advanced by the lower court. Commonwealth v. Meischke, 273 Pa.Super. 134, 139 n. 3, 416 A.2d 1126, 1128 n. 3 (1979). Accord Sones v. Aetna Casualty and Surety Co., 270 Pa.Super. 330, 411 A.2d 552 (1979).
Assuming as we must that appellant's allegations in this case are true, the facts show only that appellee knew that appellant was standing on a trailer when appellee moved the trailer. The complaint alleges that appellee acted deliberately, wilfully, and maliciously in moving the truck trailer, but does not state that such action was taken because of personal animosity toward appellant. The cases interpreting § 301(c) of the Workman's Compensation Act require that an intentional injury be the product of personal animosity and not for reasons regarding employment. Because *413 the pleadings in the instant case fail in this respect, we affirm the order of the lower court.[2]
NOTES
[1] Act of June 2, 1915, P.L. 736, as amended (77 P.S. § 1 et seq.).
[2] We do not now decide whether the sole owner of a corporation qualifies as a third party under § 411(1) in a suit against his company for injuries intentionally inflicted because of personal reasons.
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261 S.W.2d 812 (1953)
SIMS et al.
v.
REEVES.
Court of Appeals of Kentucky.
October 30, 1953.
*813 Troy D. Savage, Taylor G. Smith, Lexington, for appellants.
Hazelrigg & Cox, Frankfort, Bemis Lawrence, Louisville, J. D. Buckman, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
CULLEN, Commissioner.
In a declaratory judgment proceeding, several persons engaged in the real estate business in the City of Lexington attacked the constitutionality of Chapter 324 of the Kentucky Revised Statutes, including an amendment added by Chapter 4 of the Acts of 1952, which provides for the licensing and regulation of real estate brokers and salesmen. The circuit court upheld the statute, and the plaintiffs have appealed, maintaining that the statute is unconstitutional in several respects.
It is conceded that the statute is not a revenue measure, but a police measure. The appellants' first contention is that the nature of the occupation of real estate broker or agent is not such as to justify invoking the police power. However, a similar contention was rejected in Shelton v. McCarroll, 308 Ky. 288, 214 S.W.2d 396, which upheld KRS Chapter 324 as a valid exercise of the public power. And in Miller v. Kentucky State Real Estate Commission, Ky. 1952, 251 S.W.2d 845, the Court indicated its belief in the soundness of the reasoning relied upon in the Shelton case. We continue to adhere to the view expressed in the Shelton and Miller cases. It may be stated that the overwhelming weight of authority upholds the licensing and regulation of real estate brokers under the police power. See State v. Polakow's Realty Experts, 243 Ala. 441, 10 So. 2d 461, and cases cited therein.
*814 The statute in question requires the licensing of real estate brokers and salesmen only in cities of the first three classes and within five miles of their boundaries. It is contended that there is no reasonable basis for such a classification, and therefore the statute is special legislation in violation of Section 59 of the Kentucky Constitution.
It is well settled that a classification according to population and its density, or according to the division of cities into classes, will be sustained if the classification has a reasonable relation to the purpose of the Act. Mannini v. McFarland, 294 Ky. 837, 172 S.W.2d 631. As stated by Chief Justice Sims in Shelton v. McCarroll, 308 Ky. 288, 214 S.W.2d 396, 398, the major purpose of this Act is "to keep within the bounds of good business ethics those engaged in the real estate business, and to protect the public from unscrupulous real estate brokers and agents." Another purpose made clear by the 1952 amendment, Chapter 4, Acts of 1952, is to guard the public against incompetence, which was recognized as one of the purposes of the New York statute by Mr. Justice Cardozo's opinion in Roman v. Lobe, 243 N.Y. 51, 152 N.E. 461, 50 A.L.R. 1329.
It will easily be recognized that in a community having a large concentration of population, with the resulting lack of acquaintanceship among its citizens, the opportunities for an unscrupulous real estate broker to prey upon the public are much greater than in the smaller communities where each man knows his neighbors. Also, the volume of real estate business in the larger cities and their suburban areas is such that the danger of damage and loss resulting from incompetency is far greater than in the smaller cities and in rural areas.
Our decisions have recognized that the degree of seriousness of the problem sought to be remedied by the law under attack may be taken into consideration in determining whether a classification is reasonable. See Somsen v. Sanitation District No. 1, 303 Ky. 284, 197 S.W.2d 410. It is our opinion that the classification in the Act now before us has a reasonable relation to the purpose sought to be accomplished.
It is next argued that the Act makes an unconstitutional delegation of legislative power to the State Real Estate Commission, in that the Act authorizes the commission to pass upon the qualifications of applicants for licenses without there being any standard set up by the legislature to guide the commission in exercising this function. The statute provides that licenses shall be granted only to persons "who are trustworthy and competent to transact the business of a real estate broker or salesman in such manner as to safeguard the interests of the public". It further provides that the commission shall give a written examination to each applicant which shall be "of scope and wording sufficient in the judgment of the commission to establish the competency and trustworthiness of the applicant to act as a real estate broker or salesman in such manner as to protect the interests of the public." KRS 324.045.
We have no difficulty in conceding that the standards of trustworthiness and competency, set up by the legislature, are adequate standards. The commission is merely given the power to prescribe the details of an examination by which the two qualifications prescribed by the legislature may be tested. Similar standards, of "fitness" and "ability," were found adequate in Burke v. Department of Revenue, 293 Ky. 281, 168 S.W.2d 997, and in Department of Revenue ex rel. Allphin v. Turner, Ky., 260 S.W.2d 658, petition for rehearing overruled October 9, 1953.
It is contended that KRS 324.060 is unconstitutional in requiring that each licensee furnish a fidelity bond with corporate surety. The argument is that there is no reasonable basis for requiring a corporate surety and not permitting individual sureties. We think there is a reasonable basis for the requirement. A bond with corporate surety is in the nature of an insurance contract, and the liability of the compensated surety on such a bond is controlled by some different considerations than in the case of a gratuitous or voluntary *815 individual surety. Young Men's Christian Association's Assignee v. Indemnity Ins. Co., 244 Ky. 473, 51 S.W.2d 463; 44 C.J.S., Insurance, § 13, page 477. We think the legislature was justified in requiring the kind of surety that would furnish the greatest protection to the public.
Finally, attack is made upon KRS 324.115, which requires that each broker maintain a regular office with a sign near the door stating his name and the fact that he is a real estate broker. This is claimed to be unreasonable. Since the purpose of the statute is to protect the public from the irresponsible, unscrupulous, fly-by-night type of broker, we think the requirement as to office and sign is perfectly reasonable. It is a useful and not unduly burdensome feature of the plan designed by the legislature to protect the public from a recognized evil.
The judgment is affirmed.
COMBS, J., not sitting.
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318 Pa. Super. 507 (1983)
465 A.2d 669
COMMONWEALTH of Pennsylvania
v.
Hiram DAVIS, Appellant.
Supreme Court of Pennsylvania.
Submitted May 20, 1983.
Filed September 9, 1983.
Petition for Allowance of Appeal Denied February 2, 1984.
*509 Robert B. Mozenter, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before HESTER, BROSKY and BECK, JJ.
BROSKY, Judge:
This is a direct appeal from judgment of sentence imposed subsequent to convictions for knowing and intentional possession and delivery of a controlled substance. Appellant raises two issues for our review. First, he argues that the evidence was insufficient. Second, he contends that he was denied his Sixth Amendment right to effective assistance of counsel due to the lack of a pre-trial motion for the discovery of the identity and testimony of an informant. We find no merit in either of these arguments and, accordingly, affirm.
Sufficiency of Evidence
The opinion of the trial court accurately summarizes the evidence in this case.
Paul S. James, narcotic agent for the Department of Justice, Bureau of Drug Control, testified that on March 10, 1980, he and his partner, Officer Steven Richardson met with an informant with the code name, "211-80" at Valley Forge, Pennsylvania. After the meeting, the informant made a telephone call in his presence. That as a result of that phone conversation they proceeded to South Philadelphia to the 2700 block of Federal Street with the informant, "211-80," in an unmarked car. That once at the 2700 block of Federal Street he parked his car and a green Camaro pulled directly behind him and parked. Agent James testified he informed the informant that he wanted to purchase five bundles of heroin. The informant spoke with the defendant Hiram Davis, known to him as "Pete," and he paid him One Hundred Eighty Dollars ($180.00) in unmarked bills to make the purchase. He stated that he did not mark the bills because the *510 investigation was ongoing and they did not plan to make an arrest at that time. He then instructed "211-80" to purchase three bundles instead of five bundles of heroin. That after the informant handed the defendant the money he observed the defendant put something in his right hand. The informant returned with three bundles of suspected heroin. That the suspected heroin (three bundles consisting of twelve glassine packets) was turned over to Agent Richardson as evidence. On April 3, 1980, he again met the informant, "211-80," at Valley Forge, Pennsylvania and they drove to Philadelphia. He and the informant met with defendant Hiram Davis again to make a second purchase of heroin. That the informant purchased five bundles of heroin, but the five bundles contained only eighteen packets instead of twenty. That he observed the defendant's vehicle coming down the street and he proceeded to "flag him down." Agent James testified that he told the defendant he had only eighteen packets instead of twenty (20), and the defendant explained that the informant had "shortchanged" him. He testified that the defendant then stated, "from now on, you can deal directly with me." (N/T Vol. 1 p. 45). He then handed the agent a piece of paper with "Pete" and the telephone number "755-5622" on it. That after his discussion with the defendant, he and Agent Richardson met for a debriefing session. At that time he extracted three more packets from the informant and place [sic] them with the other evidence. These items were placed in an evidence envelope and given to agent Richardson. He testified that on May 22, 1980, at approximately 9:30 A.M. he placed a call to the phone number he received from the defendant. That as a result of the phone call he had a meeting with the defendant at 10:30 A.M. and purchased four bundles of heroin containing sixteen packets. That the bundles were given to agent Steven Richardson.
The Commonwealth's next witness was agent Steven Richardson who acted as a back-up for agent James. He testified that on the dates of March 10, April 3rd, and *511 May 22, 1980, he received the drug purchase from agent James. That the evidence was marked, placed on a property receipt and transported to the Philadelphia Crime Lab. That he placed the purchases in a small white envelope and placed it in a larger envelope with the time, date and amount of the purchase on it with his signature, and he identified the same in Court.
The Commonwealth's next witness was Chemist Michael Brister of the Philadelphia Police Department. After being qualified as an expert he testified that his duty is to perform analysis of alleged controlled substances. That on March 12, 1980, he picked six out of the twelve packets at random for his analysis of the March 10th, alleged drug transaction. That he found the six glazed packets contained heroin, quinine and nonreducing sugar, with a white powder ranging from 112 milligrams to 170 milligrams. That after the analysis he sealed them with red evidence tape.
The Commonwealth then called Chemist Charles Bracken of the Philadelphia Police Department. After being qualified as an expert, he testified that he analyzed Exhibit C-5, which contained the bundles from the alleged drug transaction of April 3, 1980, submitted to him by Agent Richardson on April 16, 1980. He testified that he received five bundles containing twenty packets and one isolated packet all of which contained a white powder. That he took a packet from each bundle, weighed the contents of each packet, and performed a series of tests involving chromogenic agents. That he analyzed six packets; one from each bundle and the isolated packet. As a result of the test performed Mr. Bracken concluded that the packets contained heroin, quinine and reducing sugar.
The Commonwealth's final witness was Joseph Szarka, a Chemist with the Philadelphia Police Department. . . . Mr. Szarka testified that on May 22, 1980 an envelope (Exhibit C-9) was brought to the Lab and it was taken in as evidence. It was marked as Lab Number 50158 and *512 deposited in bin # 10 which only he had a key. That on May 27, 1980, he took the envelope out of his bin and analyzed it. That he took one packet from each of the four bundles and performed various tests, among them a gas chromatography analysis. He concluded that the packets contained heroin, quinine and a reducing sugar.. . .
The Commonwealth's evidence showed that the defendant made three sales to Agent James and/or his paid informant "211-80" on three different dates. A chemical analysis of these substances was `proof positive' that the packets contained heroin laced with other additives. The chain of custody was sufficient to show that the same bundles sold by the defendant were the same bundles introduced into evidence at trial.
The trial court also stated correctly the standard to be applied to insufficiency of evidence issues.
In determining whether sufficient evidence exists to sustain a conviction, this court must accept as true all the evidence and reasonable inferences therefrom upon which, if believed, the trier of fact could have based its verdict. Commonwealth v. Coccioletti [493 Pa. 103 at 107], 425 A.2d 387, 389 (1980); Commonwealth v. Stockard, 489 Pa. 209, 212-213 [413 A.2d 1088 at 1090] (1980). Commonwealth v. Marcocelli [271 Pa.Super. 411], 413 A.2d 732 (1980). The court must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Davis [491 Pa. 363 at 369], 421 [A.2d] 179, 182 (1980).
In light of the above, we have no hesitation in agreeing with the trial court that, "Here, the evidence produced at trial was sufficient to establish that defendant violated the Controlled Substance, Drug, Device and Cosmetic Act by possessing and delivering heroin."
Informant Disclosure
Appellant argues that his trial counsel afforded him ineffective assistance of counsel by not making a pre-trial *513 motion for the discovery of the identity and testimony of the informant. In Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967), the Supreme Court of this Commonwealth chose to approve of certain language appearing in the United States Supreme Court case of Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957).[1]
Writing for the Pennsylvania Supreme Court, Justice Roberts first adopted the general proposition that, under certain circumstances, the informant's identity must be disclosed.
A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.
Justice Roberts also adopted the general standard by which these matters were to be decided.
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.
Commonwealth v. Carter, supra, 427 Pa. at 59, 233 A.2d at 287, quoting Roviaro v. U.S., supra, 353 U.S. at 60-2, 77 S.Ct. at 628-9.
We find that weighing the facts of this case results in nondisclosure. This conclusion is reached because no convincing *514 argument is presented as to what defenses might have been aided by the informant's availability.
In appellant's brief "the possible significance of the informer's testimony" is detailed.
The informant's value would have rested upon his ability to testify as to his, the informant's, use of heroin, his ability to testify as to who were the other individuals present at the March 10th meeting, and trial counsel's ability to examine the informant on his character for truth and veracity.
Furthermore, the informant would have been the only witness to the transaction which allegedly occurred on March 10, 1980. . . .
Finally, to have had a pre-trial motion for disclosure would have likely resulted in at least an in-camera hearing and cross-examination of said informant, allowing Appellant the ability to confront this witness and to refute this informant's incriminating testimony.
We fail to see how any of the elements could have been "helpful to the defense." The informant's use of heroin and the identity of the other individuals present at the meeting are not tied to any theory of defense. Also, since the informant did not testify at trial, there was no point in examining him on "his character for truth and veracity." Similarly, there was no "incriminating testimony" by informant to "refute."
Finally, as the facts outlined in the first section make clear, the informant was not "the only witness" to the March 10 transaction.
As presented to us on appeal this case is distinguishable from those cases in which the information to be obtained from the defendant was linked to a specific defense theory. In Carter the defense sought to present a defense of mistaken identity. Also, in Commonwealth v. Pritchett, 225 Pa.Super. 401, 312 A.2d 434 (1973), the informant had potential relevance to an entrapment defense. Similarly, in Commonwealth v. Bradshaw, 238 Pa.Super. 22, 364 A.2d *515 702 (1975) (Spaeth, J., dissenting) the informant might have been helpful to a specific denial defense.
In the case before us, no such utility of the informant to a theory of defense is put forth. "A mere allegation that the informant's testimony might be helpful does not suffice." Commonwealth v. Pritchett, supra, 225 Pa.Super. at 407, 312 A.2d at 438.
In this connection, it should be made clear what it is that we find absent here. In coming to a resolution of this issue we have kept in mind the following language in Pritchett.
However, the defendant cannot be expected to predict exactly what the informant would say on the stand. Rather, in keeping with Roviaro and Carter, "all the defendant must show is a reasonable possibility that the anonymous informer could give evidence that would exonerate him." Price v. Superior Court, 1 Cal. 3d 836, 83 Cal. Rptr. 369, 463 P.2d 721 (1970).
Commonwealth v. Pritchett, Id. There is a point between "a mere allegation that the informant's testimony might be helpful" and predicting "exactly what the informant would say on the stand." The former asks too little of defendant and the latter too much. That point between the two constituting what defendant can be asked to reasonably suggest is a nexus between a defense theory and the informant's potential helpfulness in establishing that defense. That is the essential element that is totally lacking in appellant's argument.
Thus, had counsel sought pre-trial discovery relating to the informant, he would have had to present a defense theory which might plausibly be aided by the informant.
Requiring a defendant who seeks disclosure before trial to indicate in some detail his possible defenses does not violate his constitutional right to remain silent as guaranteed by the Fifth and Fourteenth Amendments.
Commonwealth v. Pritchett, supra, 225 Pa.Super. at 410-11, 312 A.2d at 439.
*516 Had trial counsel presented no more convincing an argument as to the usefulness of the informant to the defense than has been presented on appeal, we have no doubt that the discovery motion would not have been granted.[2]
The discovery motion having no arguable merit, counsel will not be found ineffective for not making it. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
Judgment of sentence is affirmed.
NOTES
[1] Roviaro had been decided on federal law, rather than on constitutional grounds. As such, it was not binding on state courts.
[2] It is not the proper function of this court to devise defense theories for appellant that would have made informant's identity and testimony "helpful." We are bound to decide this case on the arguments presented by appellant. These arguments, as we have noted, are unpersuasive.
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261 S.W.2d 378 (1953)
TEXAS GENERAL INDEMNITY CO.
v.
McNEILL.
No. 4885.
Court of Civil Appeals of Texas, Beaumont.
September 17, 1953.
*379 Fountain, Cox & Gaines, Houston, Lewis Lanier, Jasper, for appellant.
Faver & Barnes, Jasper, for appellee.
PER CURIAM.
This is an appeal from a judgment in the district court of Jasper County in a workman's compensation case. On the verdict of a jury, judgment was for appellee, John *380 R. McNeill, against appellant, Texas General Indemnity Company, for total temporary disability for 123 weeks.
Appellee McNeill was accidentally injured in the course of his employment for Kirby Lumber Company at its sawmill at Call, in Jasper County, on October 28, 1950. He was injured when he fell against a machine called the "hog throat" or "hogging machine" and hurt the front portion of his right side. He was paid compensation by the appellant for two weeks, returned to work three weeks after the accident and then became physically unable to work. He was treated by Dr. Moore in Kirbyville for a heart attack in November, 1950. Dr. Moore had treated appellee shortly after the accident, and when complaint was made of a pain in his right chest, Dr. Moore taped his side. In November, 1950, Dr. Moore treated him again and diagnosed his trouble as a myocardial infarction. On November 21 or 28 he suffered what appeared to be a heart attack on the street in Kirbyville after visiting Dr. Moore's office. Dr. Moore treated him with nitroglycerin tablets until he had relief from the acute condition there. He also made an electrocardiagram, which confirmed his diagnosis made previously as to the heart condition. He made a diagnosis of myocardial infarction on December 19, 1950, and on November 29, 1950, thought it was angina pectoris.
In January, 1951, appellee was admitted to the U. S. Veterans' Hospital in Houston, and was treated there intermittently to June 15, 1951. He was also there for treatment from September 24 to November 19, 1951. At that hospital, he had his gallbladder removed, dental work performed, an abscess treated, and numerous tests made and observation taken.
After he was discharged, he employed attorneys in his case and learned from them that no claim for compensation had been filed in his behalf. His attorneys filed his claim August 24, 1951, ten months after his accidental injury.
On August 27, 1951, he went to Dr. McGrath of Jasper for treatment, who found three ribs fractured where they join the spinal column. Dr. McGrath testified that from his own findings and from McNeill's history of the accident, it was his opinion that the injury he received at the sawmill was the cause of his condition, and that McNeill was totally and permanently disabled.
The jury by its verdict, in answer to Special Issues, found that one Dockery, cashier for McNeill's employer, represented to McNeill that he would take care of the filing of all necessary papers, collect any insurance to which he was entitled, and that McNeill relied upon such representations and that his relying upon said representations constituted good cause for his failure to file his claim for compensation until the time it was filed. By its Point No. 3 the appellant maintains that the evidence was insufficient to support the jury's verdict that the appellee had good cause for failure to file his claim within six months from the date of injury. On this question the appellee testified that Mr. Dockery was the cashier in the office of his employer Kirby Lumber Corporation at the time he was injured at its sawmill. McNeill is an uneducated man, having gone only through the 4th grade at school. He further testified that Dockery told appellee that he had the papers in the office and would take care of all necessary papers for him, would look after his claim for compensation, and would file the same for him; that appellee relied upon those representations by Dockery and believed them all the way through until after he had retained his lawyers; that when he retained his lawyers he still believed that his claim for compensation had been filed, and learned the contrary only two or three days after he had turned his case over to lawyers for handling; and that his lawyers immediately filed a claim after they were retained. Appellee did not know the difference between compensation checks and checks received upon a policy of insurance issued by Metropolitan Life Insurance Company. Cards from appellee to Mr. B. P. Dockery revealed that while he was undergoing treatment in the Veterans' Hospital in Houston, Texas, he was writing *381 to Mr. Dockery to have his checks directed to him in the Veterans' Administration Hospital. One of the cards contained as a complete paragraph this expression, "Oh yes, see about my checks for me."
It was in evidence that McNeill did receive two weekly compensation checks shortly after he was injured.
Appellee admitted that as early as December, 1950, and January, 1951, he knew that something was wrong with his compensation checks, and that the company was "messing up" things. This testimony only served, however, to raise a fact question for the jury as to whether McNeill relied on Dockery's representation. It must be kept in mind that he testified that even at that time and until August, 1951, he thought his claim for compensation had been filed. This belief was not unreasonable, since it is undisputed that he did receive some payment of compensation benefits.
We believe this evidence is sufficient to support the jury's finding of good cause for failure to file his claim until the time it was filed and the point is overruled.
By its first point the appellant complains of the trial court's action in overruling its exceptions and objections to Special Issues Nos. 11, 12 and 13 of the court's charge. By its 4th point it complains of the action of the trial court in overruling its objections to Special Issues 14 and 15 of the court's charge. In its brief it refers us to the instrument in the transcript called "Defendant's exceptions to the charge of the Court," on pages 30 to 34, inclusive, of the transcript. This instrument was not signed by the trial judge and therefore there is nothing in the transcript to show that this document was ever presented to the trial court or acted upon by him as required by Rule 272, Texas Rules of Civil Procedure. The points based upon and relying upon the purported objections to the court's charge contained in this document cannot be considered since they present no error.
The appellant also filed and brings forward in the transcript its supplemental objections and exceptions (which is signed "Refused. E. A. Lindsey, District Judge") to Special Issues Nos. 14 and 15 which are contained in its 5th point. These objections are as follows:
"1.
"Defendant objects and excepts to Issue 14 in that it does not permit the jury to answer the question raised by the pleadings and the proof of plaintiff's incapacity may have at the expiration of some given period of time been due solely to other diseases and conditions than those received by virtue of the alleged accidental injury, and that it does not allow the jury to find that plaintiff, as alleged by pleadings and shown in the evidence, may have recovered at the end of two weeks, or some other number of weeks, from the incapacity suffered by cirtue of his alleged accidental injury and that any further incapacity would be due solely to other diseases without reference to any alleged accidental injury. Further, that it would be misleading and confusing to the jury.
"2.
"Defendant objects and excepts to Special Issue No. 15 in that it is misleading and confusing to the jury, and further, it will not allow the jury to find that plaintiff, John R. McNeill, sustained an incapacity for manual labor and hard work for a certain given definite length of time due to the alleged accidental injury, and that he may have later fully recovered from the same and that any further incapacity suffered by John R. McNeill after such recovery would be due solely to other conditions and in no way contributed to or caused by any alleged accident sustained while in the employ of Kirby Lumber Corporation; and further, that said issue is duplicitious."
The issues Nos. 14 and 15 as submitted by the court and answered in favor of the appellee by the jury were as follows:
"Issue No. 14
"Do you find from a preponderance of the evidence that plaintiff's incapacity if any you have found is not due solely to diseases?
*382 "Issue No. 15
"Do you find from a preponderance of the evidence that plaintiff's incapacity, if any you have found, is not due solely to other conditions in no wise contributed to or caused by any accident, if any, sustained while employed by said Kirby Lumber Corporation on October 28, 1950?"
We do not believe that the two issues submitted were subject to the objections and criticisms above made by the appellant. The pleading of the appellant in this regard is found in paragraphs 3 and 8 of its answer. It pleaded that the "plaintiff's incapacity, if any, was and is due solely and alone to other diseases, injuries, conditions, or a combination of such diseases, injuries or conditions in no wise contributed or caused by any action, if any, sustained while employed by said employer. For further answer, if required, defendant says that if plaintiff sustained an accident and injury as alleged in his petition, which is denied, that he has been paid and has received all compensation that was due him by virtue of said alleged accident and injury." It will be noted that the appellant did not plead any specific period of time during which the appellee's incapacity was due to injury and some other specific period of time during which his incapacity was due to other things than injury. We also note the absence of any evidence on the part of the appellant which established some period of disability due to the injury and another specific period of disability due to causes other than injuries. We think the two issues under examination, Nos. 14 and 15, properly submitted appellant's defensive theory of the case, as raised by its pleadings.
By its second point the appellant complains of the action of the trial court in refusing to submit its special requested issues "Numbers 19 and 20" by which it sought to present the question of good cause for appellee's failure to file his claim within six months after the accident and injury. We find no requested issues Nos. 19 and 20 in the transcript. But the two special issues requested by the appellant in regard to good cause were requested special issues Nos. 5 and 6. It is plain that this is what the appellant refers to, since this complaint is made by its 19th and 20th assignments of error in its amended motion for new trial. The two requested issues in substance sought to inquire (5) whether McNeill did not fail to file his claim for compensation within six months after the injury and (6) whether McNeill did not have good cause for such failure to file his claim. Number 6 was to be conditionally submitted in the event requested special issue No. 5 had been answered "Yes". It is noted that Special Issue No. 6 did not contain any definition of the phrase "good cause". We believe that such a submission in general terms would not have been proper, since the appellee McNeill in his petition had pleaded certain specific grounds for good cause, and the issues given in the charge made inquiry about those specific grounds. Texas Employers' Ins. Ass'n v. Fulkes, Tex.Civ.App., 75 S.W.2d 320; Texas Employers Ins. Ass'n v. Frankum, 148 Tex. 95, 220 S.W.2d 449, by the Supreme Court. No error is shown by this point and it is overruled.
By its sixth point the appellant complains of the action of the trial court in refusing to submit in its charge its specially requested issue No. 4, which requested issue would have inquired of the jury whether "McNeill fully recovered from any incapacity he may have received by virtue of the alleged accidental injury on October 28, 1950." This requested special issue was one of a group numbered 1 to 6, inclusive, of special requested issues which were all submitted in a group and were overruled by the trial judge in one order. Under Rule 276, Texas Rules of Civil Procedure, and the construction given this rule by the courts, the action of a trial court in refusing to submit a requested special issue should not be held to be error when it is included in a single request to submit a number of issues together. Walton v. West Texas Utilities Co., Tex.Civ.App., 161 S.W.2d 518. When one or more of special issues requested en masse should not be given, the court is justified in refusing to give any *383 of them. See, also, Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786. Since we have held above that the trial court was not required to give two of the requested special issues, it follows that no error is shown by this point in complaining of the court's refusal to give any other issue included in the group of issues requested together in one instrument and overruled by the trial court in one order. In addition to the above reasons for holding that this point presents no error if such special requested issue No. 4 were properly brought before us, we note that the trial court was not required to give such issue as it was worded because it simply inquired whether McNeill had fully recovered from his injury. The trial court in its charge submitted to the jury the issue inquiring how many weeks of total incapacity McNeill suffered from the date when it began, if any.
By its seventh point the appellant complains of the action of the trial court in allowing counsel for appellee, in his closing argument to the jury, to refer to the appellant's sworn denial of notice of injury which had been withdrawn by appellant's trial amendment, and says that there was no issue and no evidence on the question of notice, and that the argument was calculated to and did prejudice the appellant before the jury. In its pleadings the appellant specially pleaded that the appellee did not give due and legal and proper notice of his injury to his employer or its agents or to the appellant or its agents within 30 days after the injury, and specially pleaded that neither the employer nor its agents nor the defendants nor its agents had notice of or knew of or had actual knowledge of the alleged injury within 30 days. After the trial had proceeded and considerable testimony by the appellee was introduced on the question of notice of the injury to the employer or its agents and the receipt by the appellee of the two compensation checks, the appellant with leave of the court filed a trial amendment which, in substance, admitted that notice of his injury "was timely and properly given by plaintiff." The pleading by the appellant that no notice had been given was verified. Counsel for the appellee in his argument commented on this change of front by the appellant and said in part, "they say yes, you are hurt now, Mr. McNeill. Why at one time we would swear we did not have any notice that you got hurt; we would swear that you did not give us any notice within 30 days." Counsel for appellant objected to any reference to the sworn denial, because the same had been withdrawn and was not in issue. Counsel for appellee stated to the jury that his remarks seemed to cause some disturbance and he withdrew the argument with reference to appellant having filed a sworn denial of notice; but he offered to read to the jury the trial amendment filed by the appellant. Counsel for appellant objected to this and the court overruled the objection. He then read the trial amendment to the jury and stated to the jury "so that feature of the case goes out. Defense No. 1." Counsel then proceeded to argue that defense No. 2 of the appellant was that McNeill had not received any injury, that the appellant had denied this and the appellee had proved this too. We see no harm in this proceeding. Counsel was quoting from and commenting on nothing except what was in the record and we do not think this is improper. His argument that appellee had proved the facts and extent of his injury as conclusively as he had proved the facts in regard to his giving actual notice of his injury was nothing more than an exaggerated view of the strength of his client's case. We have observed that this is a frequent occurrence in the arguments of attorneys but it has never been condemned as improper. The particular pleading abandoned by the appellant by its trial amendment was not withdrawn before the trial of the case began, but only after extensive testimony was introduced. The argument complained of was not an improper comment on proceedings during the trial.
By its 8th and 9th points the appellant, in effect, complains that the expert medical evidence of Dr. McGrath on behalf of the appellee was insufficient to support the jury's verdict of temporary total disability resulting from the appellee's accidental injury. The gist of these two *384 points is that Dr. McGrath testified that he examined the appellee and found two, possibly three fractured ribs, that the ribs had not healed at the time of the trial and that from the history of the accident given to him by McNeill it was his opinion that McNeill's condition resulted from his accidental injury in the mill, that he was totally and permanently disabled and that his condition was the result of such accidental injury; that since the doctor's opinion was based partly on the history of the case given to him by the appellee it is hearsay and not sufficient to prove the cause of the injury. A number of cases are cited and quoted from by the appellant in its brief to substantiate this argument. We believe, however, that they are not in point and that the appellant has overlooked the testimony that appellee visited the doctor for the purpose of receiving treatment, that the doctor examined him physically and also inquired of him as to the history of the case all for the purpose of treating him, and thereafter did treat him. This state of facts takes the testimony of the doctor out of the category of hearsay testimony. We believe the rule is well established as stated in the opinion by Justice O'Quinn of this Court in Federal Underwriters Exchange v. Carroll, Tex.Civ.App., 130 S.W.2d 1101, 1104. In that case it is held that "The opinion of a physician or surgeon as to the condition of an injured or diseased person is not rendered incompetent by the fact that it is based upon the history of the case given by the patient to the physician or surgeon on his examination of the patient, when the examination was made for the purpose of the treatment and cure of the patient." Under the authority of that case and many others holding to the same effect, Dr. McGrath's testimony was competent. Such testimony presented a fact issue for the jury as to the condition of the appellee and as to the cause of his disability. The jury was not required to accept it, and it did not accept it in full since the jury found that the disability was only temporary in nature and extended only for a period of 123 weeks from the date of the injury. It was competent evidence, however, and supports the jury's finding.
We believe the case was properly tried and submitted to the jury, and that the judgment should be affirmed.
Affirmed.
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596 S.W.2d 891 (1980)
Guadalupe Arnulfo ABREGO, Appellant,
v.
The STATE of Texas, Appellee.
No. 63404.
Court of Criminal Appeals of Texas, Panel No. 1.
March 19, 1980.
Rehearing Denied April 30, 1980.
*892 Stu Stewart, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., and Larry P. Urquhart, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and ODOM and W. C. DAVIS, JJ.
OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for failure to stop and render aid, where the punishment was assessed by the court at three (3) years' imprisonment.
Appellant waived the indictment and entered a guilty plea to a felony information. After trial, he filed a motion for new trial alleging that the felony information was fatally defective because it failed to allege a culpable mental state. The motion was overruled, and the appellant was sentenced.
On appeal appellant relies upon Goss v. State, 582 S.W.2d 782 (Tex.Cr.App.1979), which held that the V.T.C.A., Penal Code, § 6.02, requirement of a culpable mental state applies to the offense of failing to stop and render aid defined by Article 6701d, §§ 38 and 40, V.A.C.S.
Goss also held that the culpable mental state required for the offense of failing to stop and render aid is that the accused had knowledge of circumstances surrounding his conduct, i. e., had knowledge that an accident had occurred, and that since knowledge is an element of the offense, it must be alleged in an indictment or felony information for failing to stop and render aid.
The felony information in question, omitting the formal parts, alleged the appellant "on or about May 27, 1979, did then and there unlawfully while driving and operating a motor vehicle upon a public highway, injure Raymond Gamboa, hereafter styled the Complainant, by causing his vehicle to collide with the Complainant, a pedestrian, and the Defendant, intentionally and knowingly failed to stop and render to the Complainant reasonable assistance, for which there was an apparent need, by failing to take, and make arrangements for taking, the Complainant to a physician and hospital for medical and surgical treatment ..." (Emphasis supplied.)
In Goss v. State, supra, the indictment stated the appellant did intentionally and knowingly drive and operate his automobile, which is not an offense, but failed to allege the defendant knew that the accident had occurred. The appellant urges the information suffers from the same defect.
The State, also relying upon Goss that the information expressly alleges that the appellant intentionally and knowingly failed to stop and render reasonable assistance, etc., and that he could not have knowingly failed to render to the complainant without having had "... knowledge of the circumstances surrounding his conduct .. i. e., had knowledge that an accident had occurred." Goss v. State, supra at 785.
*893 While not a model pleading, we agree with the State's position. The information was not fatally defective.
The judgment is affirmed.
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https://www.courtlistener.com/api/rest/v3/opinions/1508941/
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191 N.J. Super. 202 (1983)
465 A.2d 953
DAIRY STORES, INC., T/A KRAUSZER'S FOOD STORES, PLAINTIFF,
v.
SENTINEL PUBLISHING CO., INC., PATERSON CLINICAL LABORATORY, INC., AND KATHLEEN DZIELAK, DEFENDANTS.
Superior Court of New Jersey, Law Division Middlesex County.
July 21, 1983.
*205 Jay J. Rice, appearing for plaintiff (Ravin, Davis & Sweet, attorneys).
Douglas G. Sanborn, appearing for defendants, Sentinel and Dzielak (Jamieson, McCardell, Moore, Peskin & Spicer, attorneys).
*206 Norbert T. Knapp, appearing for defendant, Paterson Clinical Laboratory, Inc. (Luongo & Catlett and Robert J. Lecky, attorneys).
SKILLMAN, J.S.C.
This defamation action raises substantial issues concerning the applicability of the "actual malice" standard of liability of New York Times v. Sullivan to the publisher of a derogatory newspaper article about a commercial product and to the laboratory which tested the product and provided the derogatory information.
The alleged defamatory statements were contained in three articles published in two central New Jersey newspapers called "The Sentinel" and "The Suburban" during the 1981 water shortage. The owner of the newspapers is defendant Sentinel Publishing Company (Sentinel) and the author of the articles was one of its reporters, defendant, Kathleen Dzielak. The theme of the first article, which appeared under the headline "Water Sales Booming," was that bottled water companies were enjoying heavy sales while the State was rationing tap water. The theme of the second article, published under the headline "Firms Protect Sources," was that sellers of bottled water were reluctant to disclose their sources of supply. It said this fact "became evident following attempts to discover the name of the spring which supplies the water for Covered Bridge, a product sold at local Krauszer's stores." The primary focus of the claims of plaintiff, Dairy Stores, Inc., t/a Krauszer's Food Stores (Krauszer's), is the third article. Published under a banner headline, "Spring Water/Lab Analysis Casts Doubt on Content," the initial paragraphs of the article read as follows:
A sample bottle of "Covered Bridge Crystal Clear Spring Water," sold at Krauszer's convenience food stores, does not contain pure spring water, according to a laboratory analysis obtained by the Sentinel Newspapers.
Tests conducted on the product, purchased at Krauszer's store at 23 N. Main St., Milltown, showed a chlorine content of .1 parts per million. Ralph Pugliese, *207 director of the state-certified Paterson Clinical Lab, which conducted the tests, said pure spring water should not contain any chlorine.
"I can't see how it could possibly be spring water unless the spring source was contaminated and chlorine was added at the source. Since we thought we were dealing with a spring water sampling, when we received a .1 reading we ran the test again four or five times and had two chemists look at it to make sure."
The article went on to say that a national sales manager for Krauszer's, when informed of the lab results, "insisted that no chlorine is added to Covered Bridge water at any step of the operation and that the water does come from a spring."
After the publication of the articles, Krauszer's asked for a retraction. This was refused. Krauszer's then filed this suit. Named as defendants are not only Sentinel and its reporter, Dzielak, but also Paterson Clinical Laboratories, Inc. (Paterson), which told Dzielak the water contained chlorine and hence could not be uncontaminated spring water. The claims against Sentinel and Dzielak are for defamation. The claim against Paterson is for negligence although, as discussed later in the opinion, it should be treated as a claim for defamation and/or for product disparagement. The case is before the court on motions for summary judgment filed on behalf of all defendants.
I
The threshold issue in every defamation action is whether the language in question is reasonably susceptible of a defamatory meaning. Lawrence v. Bauer Pub. & Print., Ltd., 89 N.J. 451, 455 (1982); Kotlikoff v. The Community News, 89 N.J. 62, 67 (1982). A defamatory meaning will be found only if the language asserts or implies a statement of fact which is damaging to reputation. Kotlikoff v. The Community News, supra, 89 N.J. at 68-70. And liability may be imposed only if the statement of fact is shown to be false. Ibid.
The Sentinel series contains at least one statement of fact which is reasonably susceptible of a defamatory meaning that is, that a laboratory analysis had shown Krauszer's bottled water not to be spring water. This is clearly a statement of *208 fact. Moreover, it is reasonably susceptible to a meaning harmful to Krauszer's reputation; indeed, it is difficult to perceive any reasonable non-defamatory interpretation which can be given to the statement. And the fact that the article purports to report upon a test analysis conducted by a third party, Paterson, does not prevent Krauszer's from asserting claims for defamation against Dzielak and Sentinel since republication of a defamatory statement is itself defamatory. Restatement (Second) of Torts § 578 (1977). See Lawrence v. Bauer Pub. & Print., Ltd., supra, 89 N.J. at 461. There are also contested issues of fact as to the falsity of the statement in view of deposition testimony by several of Krauszer's witnesses that its product is in fact clear spring water. In short, viewed most favorably to Krauszer's as required on these motions for summary judgment, the article may be read as falsely stating, to the detriment of the reputation of Krauszer's and of its Covered Bridge bottled water, that water marketed as pure spring water was in fact tap water or contaminated spring water. Therefore, apart from the constitutional constraints discussed in sections II and III of this opinion, contested issues of fact material to a cause of action for defamation would be presented and the court would be required to deny summary judgment.
II
Commencing with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court of the United States has decided a series of cases construing the First Amendment to limit the circumstances under which liability for defamation may be imposed. See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d *209 411 (1979); Wolston v. Readers Digest Ass'n, Inc. 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979). In New York Times the Court held that to recover for defamation, a public official must demonstrate that a damaging falsehood was published with "actual malice," that is, with knowledge of its falsity or with reckless disregard for its truth. In Butts, this requirement was extended to "public figures." In Rosenbloom, a plurality of the Court concluded that the New York Times standard should apply to any publication concerning "an issue of public or general interest." However, this view was repudiated in Gertz which held the New York Times standard inapplicable to any action for "defamatory falsehood injurious to the reputation of a private individual" (418 U.S. at 346, 94 S.Ct. at 3010), irrespective of the degree of public interest in the publication.[1] The Court in Gertz also refined its definition of a person who is a "public figure" subject to the New York Times standard in pursuing a defamation action. It said that a person who is not a "public figure for all purposes and in all contexts" may become a "public figure" for a "limited range of issues" by injecting himself or being drawn into a particular public controversy.
Every decision of the Court dealing with the limitations upon liability for defamation imposed by the First Amendment has involved personal defamation. See, e.g., Gertz v. Welch, supra, (attorney accused of being a "Communist fronter" and having a criminal record); St. Amant v. Thompson, supra (deputy sheriff accused of accepting a bribe). The Court has never *210 had occasion to consider the applicability of the principles developed in the New York Times line of cases to actions for the alleged defamation of business enterprises or the disparagement of their products or services.[2] However, a number of state and lower federal courts have considered the issue, with varying and often confusing results.
A primary source of the confusion has been the efforts of the lower courts to take terminology employed by the Supreme Court in defining the constitutional protections required in the area of personal defamation, such as "public figure" and "public controversy," and to apply that terminology in determining what constitutional protections, if any, must be extended to a party who is alleged to have defamed a business or one of its products or services. For example, in Bruno &. Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir.1980), a defamation action arising out of a series of articles concerning alleged defects in commercial fishing boats which may have caused the boats to sink, the court held that the defendant newspaper could *211 not invoke the protections of New York Times because the boat manufacturer was not a "public figure." While recognizing that the boat manufacturer had advertised its product, the court said this would not necessarily qualify, in the language of Gertz, as "thrusting themselves to the forefront of [a] particular public controversy in order to influence the resolution of the issues involved." Id. at 588. The court observed that "the mere selling of products itself cannot easily be deemed a public controversy" (Id. at 589-590) and hence that the newspaper would be entitled to the protections of New York Times only if it could show that a public controversy implicating the boat manufacturer or its products had existed before the newspaper ran its series of articles. Similarly, in Vegod Corp. v. American Broadcasting Companies, Inc., 25 Cal.3d 763, 603 P.2d 14, 160 Cal. Rptr. 97 (1979), cert. den. 449 U.S. 886, 101 S.Ct. 242, 66 L.Ed.2d 113 (1980), which arose out of a television story that plaintiffs were selling inferior merchandise at inflated prices at a "closing out sale" in an inner city department store, the court found the New York Times protections inapplicable because "a person in the business world advertising his wares does not necessarily become part of an existing public controversy." It follows, the court concluded, that "those assuming the role of business practice critic do not acquire the First Amendment privilege to denigrate such entrepreneur." Id., 25 Cal.3d at 770, 603 P.2d at 18, 160 Cal. Rptr. at 101. In General Products Co., Inc. v. Meredith Corp., 526 F. Supp. 546 (E.D.Va. 1981) the court concluded that the publisher of a magazine article dealing with the safety risks of wood stove and chimney units, including the risk of chimney fires, was not entitled to the protection of the New York Times standard. It said that there was no "indication of any public controversy surrounding the use of triple-walled chimneys, that the plaintiff has injected itself or been drawn into ..., or that it has engaged in any media blitz to influence the public on a matter of public interest." Id. at 552.
Although a number of defamation actions involving business enterprises or their products and services have been held to be *212 governed by New York Times, this conclusion generally has been reached only where the court has been able to find, sometimes by a rather strained analysis, that the business enterprise was a "public figure." For example, in Reliance Insurance Co. v. Barron's, 442 F. Supp. 1341 (S.D.N.Y. 1977), the court found that a corporation which issued a preliminary prospectus to the investment community in connection with an offering of stock was a "public figure," at least as to matters relating to the proposed stock sale, and that a financial magazine which published an article asserting that the prospectus was misleading could rely upon New York Times in defending the ensuing defamation action. The court based this conclusion on the size of the corporation, the great public interest in its activities, and the fact that it "was, at the time of the libel, offering to sell its stock to the public, thereby voluntarily thrusting itself into the public arena, at least as to all issues affecting that proposed stock sale." Id. at 1348. In Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3rd Cir.1980), the court concluded that through an "advertising blitz" promoting the sale of beef and the receipt by the Bureau of Consumer Affairs of complaints concerning the quality of the beef, plaintiff had "so thrust itself into the purview of the Pittsburgh area public that the company can be characterized as a public figure for purposes of the controversy giving rise to this litigation." Id. at 273. And in Bose Corp. v. Consumers Union of U.S., Inc., 508 F. Supp. 1249, 1271-1274 (D.Mass. 1981), rev'd on other grounds, 692 F.2d 189 (1st Cir.1982), cert. granted, ___ U.S. ___, 103 S.Ct. 1872, 76 L.Ed.2d 805 (1983), the court held that the manufacturer of a newly designed loudspeaker system had "thrust itself into the vortex of public controversy" and become a "public figure" through aggressive marketing of its new product which included inviting outside organizations, such as defendant publisher of Consumer Reports, to conduct acoustical tests on the loudspeaker system.
The approach these cases have taken in determining the extent of First Amendment protection to be accorded news stories about business enterprises and their products or services *213 has not been satisfactory.[3] Individuals who are interested in political and social issues may "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issue involved." Gertz v. Robert Welch, Inc., supra, 418 U.S. at 345, 94 S.Ct. at 3009-10. However, businesses engaged in selling products or services generally are not involved in "the resolution of issues" or "public controversies." What businesses do is market their products and services by promotional activity, such as advertising, which includes representations about the quality of the products and services. The object of marketing is not involvement in "public controversy." Indeed, businesses often go to great lengths to avoid public controversy. Rather, the object of marketing is to foster a favorable public image of a product or service to the end of maximizing sales. Therefore, the terms "public figure" and "public controversy" are poorly suited to the description of business enterprises or their marketing of products and services.
Moreover, the Court's limitation of the availability of the New York Times standard of liability to personal defamation actions brought by public officials and "public figures" was predicated on a societal value which is absent or only remotely *214 implicated in business defamation actions. That societal value was described by the Court as "the individual's right to the protection of his own good name." Gertz v. Robert Welch, Inc., supra, 418 U.S. at 341, 94 S.Ct. at 3008. The limitation of the New York Times standard to public officials and "public figures" was characterized by the Court as "an accommodation of the competing values at stake in defamation suits by private individuals" for vindication of their personal reputations. Id. 418 U.S. at 348, 94 S.Ct. at 3011. However, a statement that a product is unsafe or does not contain the attributes claimed by the seller does not implicate "the individual's right to the protection of his own good name." Therefore, there is no reason to conclude that the Supreme Court would hold that the First Amendment protections offered to publishers of allegedly defamatory statements about products or services are to be determined by the same standards as statements which are personally defamatory. The scope of those protections should be determined not by a mechanistic application of terms such as "public figure" and "public controversy" but rather by an independent examination of the First Amendment and other competing societal values involved in the context of business defamation.
The first key to determining the proper standard of liability for an alleged defamatory statement about a business or its product or service lies in the recognition that a "consumer's interest in the free flow of commercial information ... may be as keen, if not keener by far, than his interest in the day's most urgent political debate." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763, 96 S.Ct. 1817, 1826, 48 L.Ed.2d 346 (1976). Therefore, consumers have a First Amendment interest in obtaining information about the products or services they buy which is comparable to their interest in being informed about political and social issues. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). And the media has a corresponding right to convey that information. Bigelow v. Virginia, 421 U.S. 809, *215 828-829, 95 S.Ct. 2222, 2235-36, 44 L.Ed.2d 600 (1975). As the court observed in Steaks Unlimited, Inc. v. Deaner, supra:
Regardless whether particular statements made by consumer reporters are precisely accurate, it is necessary to insulate them from the vicissitudes of ordinary civil litigation in order to foster the First Amendment goals mentioned above. As the Supreme Court recognized in New York Times, "would-be critics... may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so." To the extent this occurs, consumers would be less informed, less able to make effective use of their purchasing power, and generally less satisfied in their choice of goods. 623 F.2d at 280.
The second important point in determining the appropriate standard for imposition of liability in this context is that a business voluntarily exposes itself or at least its product or service to public examination in much the same fashion as does a public official or public figure. In Gertz the Court said that the most important reason for distinguishing between, on the one hand, private individuals, and on the other hand, public officials and "public figures," is the "compelling normative consideration" that generally "public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them." 418 U.S. at 344-345, 94 S.Ct. at 3010. The same may be said about a business which makes representations about the content, quality or safety of its products or services. A business voluntarily enters the market for the purpose of selling a product or service from which profits may be derived. This marketing activity, in the language of Gertz, "invites attention and comment." 418 U.S. at 345, 94 S.Ct. at 3009. In addition, like public officials and public figures, businesses can advertise and otherwise communicate with the public and in this way "usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy." 418 U.S. at 344, 94 S.Ct. at 3009.
Therefore, the values identified by the Court in Gertz in balancing the First Amendment interest in the free flow of *216 information with the State's interest in the protection of reputation lead to the conclusion that news stories about the quality or contents of products and services, such as the Sentinel story about Krauszer's Covered Bridge bottled water, should receive the same protection as those dealing with public officials and public figures. Put another way, Consumer Reports is entitled to the same First Amendment protections when it reports that a consumer product is unsafe or unhealthy or is marketed through misrepresentations as the New York Times enjoys when it reports that a public official has violated the public trust or is unfit for his position. Accordingly, Sentinel and Ms. Dzielak are entitled to the protection of the New York Times standard of liability in defending Krauszer's action against them.[4]
III
Krauszer's complaint against Paterson has generated confusion because it is labeled as a claim for negligence rather than for defamation. In moving for summary judgment, Paterson argues that it had no relationship with Krauszer's and therefore owed it no duty in testing its bottled water and reporting the results to Dzielak. See Pennsylvania Nat. Turf Club v. Bank of W. Jersey, 158 N.J. Super. 196, 203 (App.Div. 1978); J.H. Becker, Inc. v. Marlboro Tp., 82 N.J. Super. 519, 530 (App.Div. 1964). However, a party does have a duty under certain circumstances not to communicate false information about another party or a product it sells. The parameters of that duty and the circumstances under which an action may be *217 maintained for its breach are the subject of the laws of defamation and of product disparagement. See generally, W. Prosser, The Law of Torts, (4th ed. 1971) § 111, § 128. The law of defamation "... embodies the important public policy that individuals and business entities should generally be free to enjoy their reputations unimpaired by false and defamatory attacks." Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 557 (1955). Related interests are protected by the law of product disparagement. See System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131, 1139-1141 (3rd Cir.1977). Consequently a statement that a business has misrepresented the contents or quality of its product may result in the imposition of liability for defamation (Restatement (Second) of Torts, § 558, § 561) or for product disparagement. Restatement (Second) of Torts, § 623A.
Furthermore, a party who claims that its reputation has been damaged by a false statement cannot circumvent the strictures of the law of defamation or of product disparagement by labeling its action as one for negligence. Thus, in Rainier's Dairies v. Raritan Valley Farms, Inc., supra, 19 N.J. at 564 the court held that the privileges applicable in a defamation action may not be circumvented by pleading the case as one for malicious interference with business relations. Cf. Genito v. Rabinowitz, 93 N.J. Super. 225 (App.Div. 1966) (filing of false complaint is only actionable if elements of malicious prosecution are established and proof of those elements may not be avoided by labeling the claim as one for false imprisonment). By the same token, a party against whom an action for damage to reputation has been brought cannot avoid liability by saying that it owes no duty to avoid making false statements about a business or its products, for the laws of defamation and of product disparagement do impose such a duty. Therefore, the sufficiency of Krauszer's allegations against Paterson must be *218 determined by the principles governing claims for defamation and/or product disparagement.[5]
Paterson urges that there is no evidence to show that it could have known that the results of its tests would be published in a newspaper. If Paterson had simply tested the Covered Bridge water in response to a request from a user of the water, it probably would be entitled, even without the benefit of New York Times, to a qualified privilege, provided the test results were furnished under an honest belief in their truth and without express or actual malice. Cf. Krumholz v. TRW, Inc., 142 N.J. Super. 80, 84 (App.Div. 1976) (credit reporting agency possesses qualified privilege to furnish false information concerning a person's credit rating to one of its subscribers). However, Ms. Dzielak testified in depositions that she told employees at Paterson that she was "compiling information for an article on spring water." If that testimony were accepted, it reasonably could be found that Paterson knew or should have known that its test results would not merely be used by Ms. Dzielak for her own guidance as a consumer but might be published in a newspaper. Under those circumstances, Paterson would not be entitled to invoke any common law privilege. Restatement (Second) of Torts § 595, § 604.
Therefore, Paterson's motion for summary judgment requires the court to decide whether there must be a showing of "actual malice," as defined in New York Times, for Paterson to be held liable even though it is neither a newspaper publisher nor a reporter. Stated another way, the issue is whether the source of a news story is entitled to the same or similar protection from suit for defamation as the reporter and newspaper which publish the story. Somewhat surprisingly, while *219 there has been extensive litigation over the constitutional right of reporters not to reveal the identity of sources (See, e.g., Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, (1972); Maressa v. New Jersey Monthly, 89 N.J. 176 (1982); see generally, Note, "Source Protection in Libel Suits After Herbert v. Lando," 81 Colum.L.Rev. 338 (1981)), no direct consideration appears to have been given to the scope of potential liability for defamation to which an identified news source is exposed.
The Court observed in a footnote in a recent opinion that it has never decided whether the New York Times standard of liability applies to a non-media defendant. Hutchinson v. Proxmire, supra. 443 U.S. at 133, n. 16, 99 S.Ct. at 2687, n. 16. And several recent cases, such as Gertz, suggest that the New York Times standard only may be invoked by a media defendant. See, Note, "Mediaocracy and Mistrust: Extending New York Times Defamation Protection to Nonmedia Defendants," 95 Harv.L.Rev. 1876, 1877 (1982). On the other hand, there are earlier cases in which there was no media defendant and yet the New York Times standard was applied. St. Amant v. Thompson, supra, (defendant was candidate for public office); Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (defendant was district attorney). Indeed, in New York Times itself the defendants included not only the Times but also a group of civil rights activists who had placed a paid political advertisement in the paper, and the Court drew no distinction among the defendants in holding that "actual malice" must be shown for liability to be imposed.
Furthermore, any attempt to limit New York Times to media defendants would be inconsistent with the Court's frequent statements that the institutional press does not occupy a preferred status under the Speech Clause of the First Amendment. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978); First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); see generally, Blanchard "The Institutional Press and Its First Amendment Privileges," 1978 Sup.Ct.Rev. 225 (1979). Consequently, a majority *220 of lower courts which have directly considered the issue have concluded that the New York Times standard of "actual malice" is available to both media and nonmedia defendants. See, e.g., Avins v. White, 627 F.2d 637, 649 (3rd Cir.1980) cert. den. 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980); Davis v. Schuchat, 510 F.2d 731, 734 (D.C. Cir.1975); Rodriguez v. Nishiki, 65 Hawaii 430, 653 P.2d 1145 (Sup.Ct. 1982). See also Barbetta Agency, Inc. v. Evening News Pub. Co., supra, 135 N.J. Super. at 222-223. (noting, but finding it unnecessary to decide the issue); Restatement (Second) of Torts, § 580A, comment h.
In any event, even if the New York Times standard of liability were not equally available to media and nonmedia defendants, a person who had acted as a source of information for a news story would have a special claim to such constitutional protection. The Supreme Court has recognized that the Speech Clause of the First Amendment protects the rights not only of those who wish to speak but also of those who may be recipients of information. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Pell v. Procunier, 417 U.S. 817, 832, 94 S.Ct. 2800, 2809, 41 L.Ed.2d 495 (1974). The Court has also recognized that newsgathering by the press enjoys First Amendment protection. Branzburg v. Hayes, supra, 408 U.S. at 681, 92 S.Ct. at 2656 ("without some protection for seeking out the news, freedom of the press could be eviscerated.") Consequently, the free flow of information from a potential source of a news story implicates the First Amendment rights of the newspaper and of its readers. And if a potential source of a news story could be held liable for defamation without any showing of "actual malice," such exposure could produce a reluctance to furnish information. The consequence would be the same as the media refraining from publishing a story due to fear of liability for defamation; the public would be denied information on a topic in which it has a vital interest. Therefore, there are persuasive reasons for concluding that the umbrella of protection afforded by the New York Times standard *221 of liability should be as broad for the source of a news story as for the media which publishes the story.
The argument for extending such protection to a source such as Paterson is especially compelling. The role played by Paterson in the preparation of the articles is similar in some respects to that of the reporter, Dzielak. She required technical assistance in determining the content of Krauszer's water. A publication such as Consumer Reports probably has persons on its staff with the technical competence to perform that type of analysis. If such a staff person participated in writing a story, there is little doubt that person would be considered a "media defendant," assuming such status were required in order to rely upon New York Times. However, a small publisher such as Sentinel ordinarily does not have scientific technicians on its staff. Consequently, it must retain the services of an outside consultant when preparing a story such as the one which is the subject of this suit. Unless the consultant is treated as a "media defendant" and extended the same protection from suit as the newspaper by which it is retained, the ability of a newspaper to secure technical assistance in preparing a story will be seriously hampered.
Therefore, this court concludes that Paterson is entitled to the same protection from liability for defamation provided by the New York Times "actual malice" standard as Sentinel and Dzielak.
IV
Since the claims against all defendants are governed by New York Times, Krauszer's has the burden of producing clear and convincing proof that defendants published false statements, knowing of their falsity or with reckless disregard for the truth. Gertz v. Welch, supra, 418 U.S. at 342, 94 S.Ct. at 3008. Moreover, reckless disregard for the truth "is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must *222 be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, supra, 390 U.S. at 731, 88 S.Ct. at 1325; see also Lawrence v. Bauer Pub. & Print. Ltd., supra, 89 N.J. at 466-468.
The matter is before the court on motions for summary judgment, and hence the question is whether there is any genuine issue of fact material to the prerequisites for maintenance of a defamation action under New York Times. In considering this question, this court is mindful of the admonition in Kotlikoff v. The Community News, supra, 89 N.J. at 67-68, that trial courts should "give particularly careful consideration to identifying appropriate cases for summary judgment disposition in this area of [First Amendment] law." See also Maressa v. New Jersey Monthly, supra, 89 N.J. at 196-198.
Although Krauszer's has presented sufficient evidence on which to base a finding of the falsity of defendant's statements that Covered Bridge was not spring water, there is no evidence on which to base a finding that any defendant knew those statements to be false or in fact entertained serious doubts of their truth.
With respect to the claim against Paterson, the undisputed evidence is that Dzielak submitted a bottle of unidentified water to the laboratory to determine whether it was spring water, that they performed normal tests on the water, including a test for chlorine, and then reported to Dzielak that the presence of a significant amount of chlorine indicated that it was not spring water. At worst, Paterson might be found negligent for failing to advise Dzielak that the validity of its test results could have been affected by the fact that the bottle was open when brought to them. Therefore, Paterson cannot be found to have actual knowledge of the probable falsity of its test results in any respect material to Krauszer's claim.
In arguing that Dzielak and Sentinel had actual knowledge of the probable falsity of the statement that Covered Bridge was *223 not spring water, Krauszer's relies principally upon the fact that Dzielak had obtained a prior analysis of the water from another laboratory, New Jersey Laboratories, which concluded that it contained no chlorine. However, Dzielak had ample reason to question the accuracy of the New Jersey Lab results and to seek a second opinion. Her discussions with employees at New Jersey Labs revealed that Krauszer's was one of their clients and that they were so sure Covered Bridge water contained no chlorine that they considered any test to be "unnecessary." Furthermore, the fact that a negligible amount of water was removed from the bottle and that it was in the same location when she returned to the testing lab as when she left caused Dzielak to doubt whether New Jersey Labs had in fact performed any tests.
Krauszer's also argues that in view of the conflicting reports received from Paterson and New Jersey Labs, Dzielak should have obtained another analysis before submitting her article. This failure may amount to sloppy journalism but it does not evidence an actual awareness of the probable falsity of Paterson's test results. Furthermore, Dzielak did seek an analysis by another lab before the actual publication of the article but had difficulty understanding the test results since no chlorine reading was reported. In short, all Krauszer's can show is that two laboratories reported different results and that a third laboratory report was not fully understood.
Krauszer's also points out that Dzielak acknowledges being aware that Paterson's test results could have been affected by the fact that the water sample supplied them was from an open bottle. However, her impression, as reflected in the article, was that this circumstance might cause a chlorine reading to be reduced, but could not account for the presence of chlorine in the water.
Therefore, the facts relied upon by Krauszer's in opposing summary judgment fall far short of providing a foundation for a *224 finding by clear and convincing evidence that any defendant in fact subjectively entertained serious doubt as to the accuracy of the Paterson report. Summary judgment will be entered in favor of all defendants.
NOTES
[1] A state court may require satisfaction of the New York Times standard in a wider range of situations than mandated by the Supreme Court of the United States, if that result is found to be required by a state's own constitution or the common law of defamation. See Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 272 (3rd Cir.1980); Diversified Management, Inc. v. The Denver Post, 653 P.2d 1103 (Colo. 1982). See also, Barbetta Agency, Inc. v. Evening News Pub. Co., 135 N.J. Super. 214, 221-222 (App.Div. 1975). However, the Supreme Court of New Jersey has applied the New York Times standard based upon the "public figure" analysis of Gertz without suggesting any inclination to adopt a more expansive view as a matter of state law. See Lawrence v. Bauer Pub. & Print., Ltd., supra.
[2] Although Krauszer's claims against the reporter and newspaper are for defamation, they also could be viewed as claims for "product disparagement" (also referred to as "injurious falsehood," "slander of goods" and "trade libel," see W. Prosser, The Law of Torts (4th ed. 1971) § 128, at 915-916), since the central allegation of the complaint is that defendants made a false statement about the contents of plaintiff's bottled water. See System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131, 1139-1144 (3rd Cir.1977); Note, "Corporate Defamation and Product Disparagement: Narrowing the Analogy to Personal Defamation," 75 Colum. L.Rev. 963, 964-972 (1975). However, the distinction between the torts is blurred in a factual setting such as this where disparagement of the product has a natural tendency to stain the reputation of the business. See W. Prosser, supra, § 128 at 918. In any event, the First Amendment protection to which a publisher is entitled when an alleged false statement has been made about a product should not turn on whether the claim is categorized as business defamation or product disparagement since any privilege available in a defamation action ordinarily may be invoked in an action for product disparagement. W. Prosser, supra, § 128, at 924-926. See Bose Corp. v. Consumers Union of U.S., Inc., 508 F. Supp. 1249, 1270-1271 (D.Mass. 1981), rev'd on other grounds, 692 F.2d 189 (1st Cir.1982), cert. granted ___ U.S. ___, 103 S.Ct. 1872, 76 L.Ed.2d 805 (1983).
[3] These decisions have been criticized by some law journal commentators. See, e.g., Fetzer, "The Corporate Defamation Plaintiff as First Amendment `Public Figure': Nailing the Jellyfish," 68 Iowa L.Rev. 35 (1982); Comment, "A Criticism of the Gertz Public Figure/Private Figure Test in the Context of the Corporate Defamation Plaintiff," 18 San Diego L.Rev. 721 (1981). See also, Note, "Corporate Defamation and Product Disparagement: Narrowing the Analogy to Personal Defamation," supra.
One lower federal court has concluded that the "public figure" test of Gertz should not apply to corporate defamation but rather, reverting to the plurality opinion in Rosenbloom, that the New York Times defense should be available so long as a publication which allegedly defamed a corporation concerns "an issue of public or general interest." Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F. Supp. 947 (D.D.C. 1976). However, this approach assigns undue weight to whether a business happens to operate in corporate form. The focus should be instead on the nature of the allegedly defamatory communication that is, whether it is directed at an individual or at products or services sold to the public.
[4] A different conclusion might be reached in a case in which a competitor rather than a newspaper was the publisher of a false statement about a business or its product. Such a statement probably would be characterized as "commercial speech, that is expression related solely to the economic interests of the speaker and its audience." (Central Hudson Gas & Elec. Corp. v. Public Service Comm's of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343, 2349, 65 L.Ed.2d 341 (1980)), which is entitled to "a lesser protection ... than ... other constitutionally guaranteed expression." Id. at 563, 100 S.Ct. at 2350.
[5] Although Krauszer's complaint is grounded solely on negligence it has indicated an intention by supplemental letter brief to amend its complaint to add a count for defamation. See R. 4:9-2. Since the factual allegations are the same and all parties have now had an opportunity to brief the issue, the complaint will be deemed to have been so amended and its sufficiency will be determined at this time.
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319 Pa. Super. 152 (1983)
465 A.2d 1275
COMMONWEALTH of Pennsylvania
v.
James FERRER, Appellant.
Supreme Court of Pennsylvania.
Submitted September 10, 1981.
Filed September 23, 1983.
*153 Burton A. Rose, Philadelphia, for appellant.
Steven Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before CERCONE, President Judge, and HESTER and McEWEN, JJ.
McEWEN, Judge:
We here consider the consolidated appeals from the denial of two distinct applications for separate writs of mandamus, both of which were filed to compel the Philadelphia County prison authorities to recompute the manner in which appellant was to serve the balance of two separate sentences as a result of a parole violation of each sentence. Appellant argues essentially that since the sentencing judge in each of the two separate cases failed to specify the manner in which the sentence for violation of parole should be served, those *154 sentences should be deemed to be concurrent rather than consecutive as recorded by the prison authorities with a third sentence appellant was serving at the time that the parole was revoked in each of the two cases which are the subject of this appeal. We affirm.
Appellant had pleaded guilty to theft by unlawful taking as of Information No. 337, December Session, 1973, and was sentenced on January 21, 1974, by the learned Judge William Porter to a term of five years probation. Appellant was subsequently determined to have violated the terms of the sentence of probation and was sentenced by Judge Porter on November 18, 1975, to serve a term of imprisonment of from six months to twenty-three months in the Philadelphia County prison, to run consecutively to any sentence he was then serving.[1] Appellant was paroled after serving the six month minimum term of the sentence.[2] However, as a result of subsequent criminal conduct, Judge Porter on June 8, 1978, determined that appellant had violated the parole upon the six month to twenty-three month sentence imposed upon Information No. 337, December Session, 1973, and ordered appellant to serve the unserved seventeen month balance of that sentence. Judge Porter did not state whether that seventeen month balance was to be served in consecutive fashion with the sentence of imprisonment appellant was already serving.[3] Appellant subsequently applied to Judge Porter for a writ of mandamus to compel the prison authorities to record the seventeen month balance as running concurrently with the completely *155 distinct sentence that appellant was serving at the time that Judge Porter directed him to serve the seventeen month balance. Judge Porter denied the application, as a result of which appellant undertook an appeal to this court as of No. 2829, Philadelphia, 1980.
In a totally distinct and unrelated case, the distinguished Judge Joseph T. Murphy, after a trial without a jury, found appellant guilty of aggravated assault, possession of instruments of crime, tampering with a witness and terroristic threats as of Informations Nos. 494-99, September Term, 1975. Judge Murphy sentenced appellant to a term of imprisonment of from eleven and one-half months to twenty-three months and to a further two year term of probation to commence upon his release from prison. Appellant was paroled at the completion of the minimum term of eleven and one-half months but, on June 15, 1978, one week after Judge Porter had revoked his parole and directed that he serve the seventeen month balance of the sentence imposed as of Information No. 337, December Session, 1973, Judge Murphy revoked his parole on the sentence imposed upon Information Nos. 494-99, September Term, 1975, and sentenced petitioner to serve the eleven and one-half month balance of that sentence. Judge Murphy did not state whether that eleven and one-half month balance was to be served in consecutive fashion with the sentence of imprisonment appellant was then serving or consecutive with the seventeen month balance of the sentence that had been imposed by Judge Porter.[4] Appellant subsequently applied to Judge Murphy for a writ of mandamus to compel the prison authorities to record the eleven and one-half month balance as running concurrently with the completely distinct sentence that appellant was serving at the time that Judge Murphy directed him to serve the eleven and one-half month balance. Judge Murphy, as had Judge Porter, denied the application, as a result of which appellant has appealed to this court as of No. 2967, Philadelphia, 1980.
Appellant asserts that:
*156 Each judge failed to state that the balance of the months remaining upon the sentence was to be served consecutive with the sentence of imprisonment appellant was then undergoing.
That Judge Murphy failed to state that the balance of the months remaining upon the sentence was to be served consecutive with the balance of the months to be completed upon the sentence of Judge Porter.
That, therefore, the prison authorities should record the sentences of Judge Porter and Judge Murphy as running concurrently with one another and as running concurrently with the sentence appellant was already serving. That each Common Pleas Court Judge erred in refusing to issue a writ of mandamus to the prison authorities to so record the sentence.
Since appellant correctly states that each judge did not express the specific direction that the balance of the sentence was to be served in a consecutive fashion, the question for our determination is whether there is authority for the prison officials to compute the sentences in consecutive fashion. We are of a mind that it is already well settled that a parolee from a county prison, upon being convicted of a crime committed while on parole and sentenced thereon to the same institution from which he was paroled, must first complete his unfinished term, once it is determined he was in violation of his parole, before he commences service of the sentence for the latter offense. Commonwealth ex rel. DiBonbi v. Baldi, 339 Pa. 96, 15 A.2d 352 (1940) (affirmed per curiam on the basis of Commonwealth v. Ripka, 37 D & C 315 (1940)). Accord, Commonwealth ex rel. Sweeney v. Keenan, 168 Pa.Super. 137, 78 A.2d 33 (1951); Commonwealth ex rel. Little v. Keenan, 168 Pa.Super. 125, 78 A.2d 27 (1951). The Ripka, supra, opinion, which the Supreme Court would seem to have made its own, proceeded through a thoughtful analysis before concluding that parolees, whatever the length of their sentence or the institution where it is to be served, when convicted of a crime committed while on parole, must serve in consecutive fashion the sentence *157 for the new crime as well as the unexpired balance of the parole sentence. The opinion, after noting that parolees from state penitentiaries must serve their sentences in such fashion, see Commonwealth ex rel. Kent v. Smith, 323 Pa. 89, 186 A. 812 (1936); Commonwealth ex rel. Meinzer v. Smith, 118 Pa.Super. 250, 180 A. 179 (1935), states:
These cases settle the law of Pennsylvania on this subject so far as it applies to sentences to the penitentiary, and we think that in this respect there is no difference between sentences to the penitentiary on the one hand, and to the county prison on the other. It is true that parolees from State penitentiaries and county institutions are regulated by different acts, the latter being governed by the Act of June 19, 1911, P.L. 1059, and that they do not contain the same provisions. They were passed at the same session of the legislature, however, and were approved by the Governor on the same day, and together constitute our system of parole legislation. By them parole was introduced as a part of our system of penology. The first of these acts, which regulates parolees from penitentiaries, is rather elaborate in its provisions. The second lays down no rules whatever for the regulation of parolees from the county prison. It is but one paragraph in length, and, except as subsequently amended by the Act of May 11, 1923, P.L. 204, to prescribe regulations for the hearing of petitions for parole, it merely confers upon the quarter sessions courts the power `after due hearing, to release on parole any convict confined in the county jail, house of correction, or workhouse' of its district, and `to recommit to jail, workhouse, or house of correction on cause shown by such probation officer that such convict has violated his or her parole, and to reparole in the same manner and by the same procedure as in the case of the original parole if, in the judgment of said court, there is a reasonable probability that the convict will be benefited by again according liberty to such convict, and also to again recommit for violation of such parole.'
*158 There are no provisions here, such as in the act relating to penitentiaries, prescribing what shall be done upon a violation of parole by a parolee, except that he may be recommitted and reparoled in the discretion of the court. We think, therefore, that the only reasonable conclusion to be reached from this complete absence of express legislative declaration upon the subject in the second act is that the legislature considered that, by the previous act relating to the penitentiary, it had given to the word `parole' a connotation sufficiently fixed and definite, at least as to basic principles, to render its further definition unnecessary when used in subsequent legislative enactments. In this respect we think that the acts should be interpreted similarly in order that the administration of parole may be uniform, and shall differ only in those particulars in which a legislative intent to distinguish between parolees from penitentiaries and from local county institutions is apparent or reasonably and necessarily to be inferred. This being so, we find no statutory authority for holding the general consequences of a parole violation to be different in the case of prisoners sentenced to the county prison from those prescribed for penitentiary prisoners, except that, in the former case the power is given to the courts to reparole after commitment for violation of parole, whereas this power has not been conferred upon the Board of Pardons, the paroling authority in the case of penitentiary prisoners.
* * * * * *
The theory of parole is based upon the benefit to be derived by society and the prisoner from remitting the immediate service of the balance of his sentence on the condition that, during his parole period, he does not again violate the law. He is still subject to the sentence, but the obligation to serve the balance of it is merely suspended to rearise upon his misbehavior; and the value of the parole as a steadying and reformative measure would be progressively weakened, if the parolee's liability to pay *159 the forfeit implied in the condition were permitted to be diminished by mere lapse of time.
Commonwealth v. Ripka, supra at 318-20.
This landmark decision was addressing the statutes in effect at the time of the holding, namely, two separate Acts that became law on the same day:
Act of June 19, 1911, P.L. 1055 § 10, as amended. Section 10 of that Act (61 P.S. § 305)[5] specifically directed that whenever a parolee was convicted of a crime committed while on parole, the unexpired term and the term for the new offense were to be served in a consecutive manner.
*160 Act of June 19, 1911, P.L. 1059 § 1, as amended. Section 1 of that Act (61 P.S. § 314)[6] authorizes the county courts to release on parole any convict confined in a county jail and to recommit the parolee to jail if the court determines the terms of the parole have been violated.
While the Act of 1941, August 6, P.L. 861, § 17, as amended, (61 P.S. § 331.17) subsequently conferred upon the Pennsylvania Board of Parole exclusive jurisdiction of persons who had received a sentence of two years or more *161 and thereby removed from the county court any jurisdiction over the parole of such prisoners, and while the 1941 Act and its subsequent amendments (61 P.S. § 331.21a) reiterated that the unexpired sentence of a convicted parolee must be served in consecutive fashion with the new sentence, the analysis, rationale and holding of Ripka remained unaffected. Therefore, while we agree with appellant that he is not under the jurisdiction of the Pennsylvania Board of Parole and that, therefore, he is not subject to the specific requirement imposed by 61 P.S. § 331.21a that his sentence be served in a consecutive fashion, the Ripka holding establishes the applicability of the consecutive sentence requirements of 61 P.S. § 305 to a parolee who is within the jurisdiction of the county court.
Appellant argues that Section 305 was repealed by the Act of April 28, 1978, P.L. 202, No. 53, but apparently has overlooked the fact that the effective date of repealer was June 27, 1978, a date subsequent to both orders that appellant serve the balance of the expired sentence, one of which was entered on June 8, 1978, and the other on June 17, 1978. It should also be noted that the legislature expressly provided that Section 305, as well as other related statutes, pursuant to 42 Pa.C.S.A. § 20002(a)[955], "shall remain in effect as to existing indeterminate sentences until the expiration thereof." Therefore, it is apparent that the unexpired terms of the original sentences upon which petitioner was paroled must necessarily be served in a consecutive manner with the sentences for the offense or offenses out of which the two parole violations arose.
Nor are we persuaded that the provision of Pennsylvania Rule of Criminal Procedure 1406(a)[7] is applicable. It would *162 seem to be beyond argument that Rule 1406 is applicable only to the initial imposition of sentence and not to an order of court that directs a parolee to serve an unexpired term. Had there been any intent to prescribe such a regulation, such revision would have been a part of Rule 1409, the specific Rule relating to "Violation of Probation or Parole: Hearing and Disposition". Pa.R.Crim.P., Rule 1409, 42 Pa.C.S.A.
Therefore, we conclude that Judge Porter properly denied the petition for a writ of mandamus directing that the prison officials compute the unexpired balance of the sentence he had imposed as a sentence concurrent with the sentence he was already serving. Accordingly, Judge Murphy properly concluded that the unexpired balance of the sentence he had imposed was not to be concurrent with the sentence he was already serving, but there remains the question of whether the unexpired balance of the sentence imposed by Judge Murphy should be served concurrently or consecutively with the unexpired balance of the sentence imposed by Judge Porter. We are unable, however, to consider this question since the sole issue presented to and ruled upon by both Common Pleas Court Judges in the two separate applications for a writ of mandamus was the question of whether the unexpired terms that were required to be served by reason of the parole violation were to be served consecutively with the sentence already being served. City of Pittsburgh v. Pennsylvania Department of Transportation, 490 Pa. 264, 270 n. 7, 416 A.2d 461, 464 n. 7 (1980); Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982); Rizzo v. Schmanek, 63 Pa.Cwlth. 547, 439 A.2d 1296 (1981).
The order of Judge William Porter which is the subject of Appeal No. 2829 Philadelphia, 1980, is affirmed.
The order of Judge Joseph T. Murphy, which the subject of Appeal No. 2967 Philadelphia, 1980, is affirmed.
NOTES
[1] Although not complete, the record in this case does reveal that at the time of the imposition of this sentence, petitioner had been sentenced five days earlier on November 13, 1975, upon Information Nos. 494-98, September Term, 1975, involving completely distinct offenses, to a term of eleven and one-half to twenty-three months as well as to an additional term of two years probation to commence upon his release from prison.
[2] The record does not reflect the precise date on which petitioner was paroled.
[3] The record further does not reveal what sentence petitioner was serving at the time he was sentenced to serve the remainder of the original sentence on this conviction.
[4] As earlier noted, the record does not reflect what sentence petitioner was serving at the time parole was revoked on these latter charges.
[5] § 305. Conviction during parole; service of unexpired term
If any convict released on parole, as provided for in this act, shall, during the period of his or her parole, or while delinquent on said parole, commit any crime punishable by imprisonment for which he or she is at any time thereafter convicted in any court of record and sentenced to any place of confinement other than the penitentiary from which he or she was released on parole, such convict shall, in addition to the penalty imposed for such crime committed during the said period, and after the expiration of the same, be compelled, by detainer and remand as for an escape, to serve in the penitentiary from which said convict had been released on parole, or in any other institution to which he or she may be legally transferred, the remainder of the term (without commutation) which said convict would have been compelled to serve but for the commutation authorizing said parole, and if not in conflict with the terms and conditions of the same as granted by the Governor; but, if sentenced to the penitentiary from which said convict was released on parole, then the service of the remainder of the said term originally imposed shall precede the commencement of the term imposed for said crime. If no new sentence is imposed for such crime or crimes, punishable by imprisonment, committed during period of parole, or while delinquent on parole, for which he or she has been convicted in any court of record, either by plea or trial, said convict shall be compelled, by detainer and remand as for an escape, to serve in the penitentiary from which said convict had been released on parole, or any other institution to which he or she may be legally transferred, the remainder of the term (without commutation) which said convict would have been compelled to serve but for the commutation authorizing the parole, and if not in conflict with the terms and conditions of the same as granted by the Governor. 1911, June 19, P.L. 1055, § 10; 1915, June 3, P.L. 788, § 1; 1931, June 22, P.L. 862, § 1.
[6] § 314. Parole from county jails, houses of correction, or workhouses; procedure; violation of parole; reparole
The courts of quarter sessions and the courts of oyer and terminer of the several judicial districts of the Commonwealth, and other courts of record having jurisdiction, are authorized, after due hearing, to release on parole any convict confined in the county jail, house of correction, or workhouse of their respective district. No convict shall be paroled, under the provisions of this act, except upon petition verified by the oath of the person convicted or by some one in his or her behalf, and presented and filed in the court in which such person was convicted. Upon the presentation of any such petition, the court shall fix a day for hearing. A copy of said petition shall also be served upon the district attorney and upon the prosecutor in the case, if he is resident within the county, at least ten days before the day fixed for said hearing. Proof of service upon the district attorney and the prosecutor shall be produced at the hearing. After such hearing, the court shall make such order as to it may seem just and proper. In case the court shall parole such convict, it shall place him or her in charge of and under the supervision of a designated probation officer. Any of said courts shall have power to recommit to jail, workhouse, or house of correction on cause shown by such probation officer that such convict has violated his or her parole, and to reparole in the same manner and by the same procedure as in the case of the original parole if, in the judgment of said court, there is a reasonable probability that the convict will be benefited by again according liberty to such convict, and also to again recommit for violation of such parole. This power of parole shall extend for a period not to exceed the maximum sentence provided by law for the offense of which the convict was convicted, regardless of the sentence first imposed upon the prisoner: Provided, however, That any of said courts may release on parole, upon petition to any of said courts, any person who has been committed to any jail, workhouse, or house of correction by any magistrate, alderman, or justice of the peace. Said courts shall have the same power to recommit such persons paroled as herein set forth. 1911, June 19, P.L. 1059, § 1; 1921, May 5, P.L. 379, § 1; 1923, May 11, P.L. 204, § 1.
Repealed in Part
This section is repealed in so far as it relates to persons over whom exclusive jurisdiction to parole is vested upon the Board of Parole by act 1941, Aug. 6, P.L. 861, § 35.
[7] Pa.R.Crim.P., Rule 1406, 42 Pa.C.S.A., entitled Imposition of Sentence: Computation and Service, reads in part:
(a) Whenever more than one sentence is imposed at the same time on a defendant, or whenever a sentence is imposed on a defendant who is incarcerated for another offense, such sentences shall be deemed to run concurrently unless the judge states otherwise.
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2 S.W.3d 723 (1999)
COMERICA BANK-TEXAS, as Trustee of the Gayl Hall Bradfield Trust, Appellant,
v.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as Executor of the Estate of Gayl Hall Bradfield, Deceased, Appellee.
No. 06-98-00170-CV.
Court of Appeals of Texas, Texarkana.
Submitted July 26, 1999.
Decided September 23, 1999.
*724 R.W. Calloway, Calloway, Norris & Burdette, Dallas, for appellant.
Royce Jackson Watts, Dallas, for appellee.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
Opinion by Justice GRANT.
This is an action brought by Chase Bank of Texas ("Chase"), the executor of the estate of Gayl Hall Bradfield, against Comerica Bank Texas ("Comerica"), trustee of the Gayl Hall Bradfield Trust, to set aside a transfer of assets to the Gayl Hall Bradfield Trust and to impose a constructive trust on the transferred assets. Comerica appeals from the trial court's granting of partial summary judgment in favor of Chase.
On September 23, 1986, Gayl Hall Bradfield signed an instrument entitled "General Power of Attorney" naming Robert N. Virden as her attorney-in-fact. The General Power of Attorney provided in relevant part:
Notwithstanding the other provisions of this general power of attorney, the rights, power and authority of my attorney shall commence only upon my disability as hereinafter defined and shall remain in full force thereafter until said disability is terminated. This general power of attorney shall not terminate on my disability or incompetency. Disability shall be defined as a substantial impairment of my ability to care for my property by reason of age, illness, infirmity, mental weakness, intemperance and/or addiction to drugs.
On January 11, 1991, Bradfield established the Gayl Hall Bradfield Trust. The trust contained certain assets held for the benefit of Bradfield. The trust provided that on Bradfield's death, the assets be distributed to identified institutions and individuals. In 1993, Bradfield amended the trust to add additional assets.
On August 19, 1991, Bradfield made a holographic will, which named Texas Commerce Bank as executor of her estate. After this lawsuit was filed, Texas Commerce Bank became Chase Bank of Texas. The holographic will left by Gayl Bradfield essentially speaks to matters other than the disposition of the property, but the trust specifically spells out the beneficiaries.
In 1995, Bradfield became incapacitated. After her incapacity, Virden, acting as Bradfield's attorney-in-fact, transferred to the trust certain assets held by Bradfield, individually, and assets payable to Bradfield, individually. Bradfield died on January 12, 1997.
Chase filed suit against Comerica, as trustee of the trust, for a declaratory judgment and to impose a constructive trust on the assets Virden transferred to the trust. Chase also filed a motion for summary judgment contending that the power of attorney did not create a valid agency relationship, or, in the alternative, that the power of attorney did not authorize Virden to convey Bradfield's assets to the trust. In its motion, Chase argued that the power of attorney Bradfield executed to Virden was a "springing durable power of attorney" *725 that was not authorized by the Texas Probate Code in 1986, when it was executed. Chase also requested in its motion for summary judgment that a constructive trust be imposed on the assets transferred by Virden. The trial court granted Chase's motion for partial summary judgment, and the parties obtained an agreed order to sever Chase's remaining claims.
Comerica contends that the durable power of attorney from Bradfield to Virden in 1986 was valid. Specifically, it contends that even though the Probate Code did not expressly provide for a springing power of attorney in 1986, it did not expressly disallow powers of attorney of that kind. Comerica argues that no distinction exists in the 1986 Probate Code between durable powers of attorney that are effective immediately and those that are effective only when the principal becomes incapacitated.
A power of attorney is a written instrument by which one person, the principal, appoints another person, the attorney-in-fact, as agent and confers on the attorney-in-fact the authority to perform specified acts on behalf of the principal. See Olive-Sternenberg Lumber Co. v. Gordon, 143 S.W.2d 694, 698 (Tex.Civ.App.-Beaumont 1940), rev'd on other grounds, 138 Tex. 459, 159 S.W.2d 845 (1942).
In 1972, the Legislature enacted Section 36A of the Probate Code allowing durable powers of attorney. Section 36A provided in relevant part:
When a principal designates another his attorney in fact or agent by power of attorney in writing and the writing contains the words "this power of attorney shall not terminate on disability of the principal" or similar words showing the intent of the principal that the power shall not terminate on his disability, then the powers of the attorney in fact or agent shall be exercisable by him on behalf of the principal notwithstanding later disability or incompetence of the principal.
Act of May 5, 1971, 62nd Leg., R.S., ch. 173, § 3, 1971 Tex. Gen. Laws 971, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 404, § 1, 1989 Tex. Gen. Laws 1550, repealed and codified by Act of April 15, 1993, 73rd Leg., R.S., ch. 49, § 2, 1993 Tex. Gen. Laws 112 (current version at Tex. Prob.Code Ann. § 482 (Vernon Supp. 1999)). This section of the Probate Code authorizes a power of attorney to remain in force in the event the principal becomes incapacitated. Section 36A does not expressly provide that a power of attorney may become effective only in the event the principal becomes incapacitated.
In 1993, the Texas Legislature passed the Durable Power of Attorney Act, authorizing a springing durable power of attorney. Tex. Prob.Code Ann. § 482 (Vernon Supp.1999). The Code now provides that a power of attorney may contain a provision that "this power of attorney is not affected by subsequent disability or incapacity of the principal," or "this power of attorney becomes effective on the disability or incapacity of the principal." Id.
Historically, an agency authority called power of attorney existed only when the principal was capable of acting on his or her own behalf. At common law, an agency relationship, including one created by power of attorney, terminated upon the incapacity of the principal. Harrington v. Bailey, 351 S.W.2d 946, 948 (Tex.Civ.App.-Waco 1961, no writ). Tracing the cases cited in the Harrington opinion and other later Texas cases back to the authority upon which they were based, the reason given for not allowing the power of attorney to continue to exist was because the statutes provided for the appointment of a guardian when a person did not have the capacity to handle his own estate. See Texas & P. Ry. Co. v. Bailey, 83 Tex. 19, 18 S.W. 481 (1892); Renfro v. City of Waco, 33 S.W. 766, 767 (Tex.Civ.App.1896, no writ). In turn, when a person died, the executor or administrator of the estate was designated by the Probate Code to handle the affairs of the estate. These provisions *726 in the law precluded the continuation of the authority of an agent after disability or death.
The passage of Section 36A of the Probate Code of 1972 allowed for the first time a power of attorney to be recognized and legally effected even during the disability of the principal. This altered significantly the previous law that had required that an insane or incompetent person was to have a guardian under the supervision of the court.[1] This statutory provision left no question that if the proper language was contained in a power of attorney, the power of attorney could continue during the disability pursuant to the terms of agency authority specifically granted by the principal. Because there had been no case in point and because the language in the statute speaks in terms of the power not terminating on disability, the later clarification that it can take effect upon disability removed any doubt on that question. Because this particular portion of Section 36A placed in the Code in 1972 had never been interpreted, it was understandable that the Legislature wanted to clear up this ambiguity so that people could plan for the future application of such documents to be enforced without the fear that there might be a contrary interpretation of this provision.
In the present case, however, this Court should apply the standard of construction to the power of attorney that would comport with legality and would presume the parties intended to obey the law. See Gonzalez v. Gainan's Chevrolet City, Inc., 690 S.W.2d 885 (Tex.1985).
There is language in the general power of attorney in this case that suggests that its authorization is being made before the disability: "This general power of attorney shall not terminate on my disability or incompetency."
On first blush, that provision seems inconsistent with the opening sentence: "Notwithstanding the other provisions of this general power of attorney, the rights, power and authority of my attorney shall commence only upon my disability as hereinafter defined and shall remain in full force thereafter until said disability is terminated."
The instrument in question had the legal effect at the time of the signing of creating a general power of attorney to commence in the future. This would be no different from a power of attorney that was to begin when the principal left for Europe, when the principal purchased a new business, or some similar future event. The difference is the authorization of the agency was triggered by a future event other than the disability of the principal. We have found no new cases that prohibit the execution of a binding document that would create an agency to commence at some point in the future.
There is no contention that Gayl Bradfield was not competent at the time she executed the power of attorney. A hypertechnical application of the statute would allow such an interest to be in effect if it had commenced one minute before her disability, but it could not begin at the moment her disability began.
A holding to the contrary would defeat the intent of the principal, as well as the spirit of the law, which was to permit powers of attorney to continue to exist if that was the intent of the principal. This designation of a power of attorney existed prior to the disability and was signed by the principal prior to the disability, and the legal effect of this instrument did not terminate upon the disability even though the rights, power, and authority under the *727 power of attorney did not commence until the disability began.
We reverse and remand this cause to the trial court for further proceedings consistent with this opinion.
Dissenting by Chief Justice CORNELIUS.
I respectfully dissent.
When the Legislature was considering Section 482 of the Probate Code, testimony was presented in committee hearings concerning the need for a legislative enactment permitting springing powers of attorney. This testimony supports the conclusion that the bill was introducing a new feature to the durable power of attorney in Texas. Al Golden, on behalf of the Real Estate, Probate and Trust Law Section of the State Bar of Texas, testified before the Jurisprudence Committee of the Texas Senate about the springing power of attorney. He testified as follows:
This bill [S.B. 176] also provides something that we have never had in Texas law, but is available in most states and that's what's called a springing power of attorney. My experience in twenty-five years of practice in this area is that most people like to give powers of attorney out, but they don't really want them to become effective until they become disabled. Under current Texas law you cannot do that. This bill would permit you to write a power of attorney that would not become effective until disabled.
Durable Power of Attorney Act: Hearing on Tex. S.B. 176 Before the Senate Jurisprudence Committee, 73rd Leg., R.S. (Feb. 9, 1993). Additionally, Golden testified before the Texas House of Representatives Judicial Affairs Committee as follows:
This [S.B. 176] does several things to change the law in Texas.... Third, one of the things that many of my elderly clients ask for is that they want to give a power of attorney, but they don't want that power to be effective unless and until they are disabled. Under current Texas law you cannot give that kind of power of attorney. It must be, it's effective when given even though the principal has no incapacity. Under this statute, the power of attorney can be specifically drafted to take effect only on the disability or incapacity of the principal, thereby again meeting a need that many of our citizens have requested.
Durable Power of Attorney Act: Hearing on Tex. S.B. 176 Before the House Judicial Affairs Committee, 73rd Leg., R.S. (Feb. 23, 1993).
Senator Parker, the sponsor of Senate Bill 176, also addressed the intent of the Durable Power of Attorney Act. He stated on the floor of the Senate:
What this Bill [S.B. 176] will do, it brings our Probate Code in line with the Uniform Probate Code of most other states.... The way it works now, the person receiving it [power of attorney] can use it whether you've become disabled or not. This takes care of that and puts us in line with about thirty-five other states.
Debate on Tex. S.B. 176 on the Floor of the Senate, 73rd Leg., R.S. (Feb. 18, 1993).
I believe the legislative history indicates that the Legislature intended a change in the durable power of attorney law when it enacted the Durable Power of Attorney Act in 1993. The general rule of statutory construction is that a legislative amendment is presumed to change the law, and the courts should adopt a construction that does not render an amendment useless. See Ex parte Trahan, 591 S.W.2d 837, 842 (Tex.Crim.App.1979); see also National Union Fire Ins. Co. v. Burnett, 968 S.W.2d 950, 956 (Tex.App.-Texarkana 1998, no pet.); Texas Commerce Bank Nat'l Ass'n v. Geary, 938 S.W.2d 205, 211 (Tex.App.-Dallas 1997), rev'd on other grounds, 967 S.W.2d 836 (Tex.1998). We *728 presume that every word of a statute was used for a purpose and, likewise, that every word excluded from a statute was excluded for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981); National Union Fire Ins. Co. v. Burnett, 968 S.W.2d 950 (Tex.App.-Texarkana 1998). Before 1993, the Probate Code did not expressly allow for a springing durable power of attorney. In 1993, the Legislature amended the Probate Code to expressly authorize a springing power of attorney. We should presume that the Legislature intended to change the law in 1993. Additionally, the absence of any language permitting a springing power of attorney before 1993 indicates that the Legislature did not intend to authorize a springing power of attorney in Texas at that time. Thus, I would hold that the 1972 and 1989 versions of the durable power of attorney statute did not authorize a springing power of attorney.
We must decide whether the 1993 Durable Power of Attorney Act may be applied to a power of attorney executed in 1986. I conclude, from the clear language in the legislative acts of 1989 and 1993 amending and codifying the durable power of attorney statutes, that a power of attorney created under the provisions of a former statute continues to be governed by the law in effect when the power of attorney was executed. Act of May 29, 1989, 71st Leg., R.S., ch. 404, § 2, 1989 Tex. Gen. Laws 1551; Act of April 15, 1993, 73rd Leg., R.S., ch. 49, § 2, 1993 Tex. Gen. Laws 112. In 1993, the Legislature provided, "Section 36A, Probate Code is repealed. A power of attorney executed in compliance with that section before the effective date of this Act is valid according to the terms of that section as it existed at the time of the execution, and that section is continued in effect for that purpose." Act of April 15, 1993, 73rd Leg., R.S., ch. 49, § 2, 1993 Tex. Gen. Laws 112.
Accordingly, I would hold that Bradfield's 1986 general power of attorney is to be construed under the version of the Probate Code in effect at the time it was executed. As stated above, the version of the Probate Code in effect in 1986 did not authorize a springing power of attorney. The trial court correctly found that, as a matter of law, Virden was not authorized to act as Bradfield's attorney-in-fact because the power of attorney was invalid and ineffectual. Because Virden was not authorized, as the attorney-in-fact, to convey any assets to the trust, the trial court properly imposed a constructive trust on the assets Virden conveyed to the trust.
Comerica argues that, if we find the springing power of attorney invalid, we should disregard the provisions that render it invalid and enforce the power of attorney as an ordinary durable power of attorney. The majority opinion essentially accepts this view. I do not believe we can justify such a construction because it would militate against Bradfield's express intention. Although the majority disputes this, an acceptance of such a construction would result in the power of attorney being effective immediately on its execution and continuing in effect after Bradfield's incapacity. The majority claims to effectuate Bradfield's intention, but the construction they give to the instrument is absolutely contrary to Bradfield's obvious intention, as indicated by the express language Bradfield used in the instrument. The provisions of the power of attorney conclusively indicate that her intention was that the power of attorney would not take effect unless and until she became incapacitated.
I do not disagree that a person can create an ordinary agency to begin only on the occurrence of a future contingency, if the instrument creating the agency expressly and clearly contains language to that effect. But what we have here is not an ordinary agency, but a special kind of power of attorney that was not authorized by law when it was executed. Because it was not authorized by law at the time it was executed, it is completely ineffectual.
*729 For these reasons, I would affirm the judgment of the trial court.
NOTES
[1] 42A Tex. Jur.3d Guardianship and Conservatorship § 531 observation (1995), quotes the "Texas Family Law Service News Alert" as making the observation that the durable power of attorney was becoming an increasingly popular method of estate management, because of its flexibility, low cost, and minimal judicial intrusion, and that such a power can be drafted to spring into effect at a later date.
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465 A.2d 750 (1983)
INTERSTATE NAVIGATION CO.
v.
Edward F. BURKE et al.
No. 82-258-M.P.
Supreme Court of Rhode Island.
August 30, 1983.
*751 W. Slater Allen, Jr., Booth & Brodsky, Providence, for petitioner.
Richard E. Crowell, Jr., Public Utilities Commission, Cranston, for respondents.
OPINION
WEISBERGER, Justice.
This is a statutory petition for certiorari filed by the Interstate Navigation Company (the company or Interstate) pursuant to G.L. 1956 (1977 Reenactment) § 39-5-1. The company challenges the May 14, 1981 decision and interim order of the Public Utilities Commission (the commission) and the final report and order that the commission rendered on May 28, 1982. Both of these orders addressed the proposed tariff that the company filed with the commission on February 24, 1981, in docket No. 1572. In its petition the company contends that the commission erred in several respects when it twice denied the company's request for rate relief. The pertinent facts are as follows.
Interstate runs a ferry service between points on the mainland and Block Island. *752 Prior to filing the proposed tariff, the company contracted for the construction of a new ship, the Nelseco II (the Nelseco), which would be added to a fleet comprised of the Quonset, the Manisee, the Manitou and the Yankee. The company intended to route all of these vessels, except for the Yankee, between Point Judith and Block Island during the summer of 1981.
The company's proposed tariff reflected a rate increase in the amount of $179,078. The company estimated that its expenses for fuel and wages would increase significantly in 1981. In addition, the company sought rate relief for interest and depreciation expenses that the company would incur during 1981 because of the addition of the Nelseco to the company's fleet.
Public hearings were held on April 6, 1981, at the offices of the commission and on May 11, 1981, at the New Shoreham Town Hall. At these hearings, the Division of Public Utilities and Carriers (the division) opposed the company's proposed rate increase and offered evidence to rebut the company's projected increases for 1981 in fuel, payroll, interest, and depreciation expenses. The division suggested that the company was entitled to a rate increase of $76,538.
The commission rendered its decision and interim order in docket No. 1572 on May 14, 1981. The commission allowed Interstate increases in fuel and payroll expenses in amounts lower than those that the company had requested but higher than those that the division had proposed. The May 14 decision fully resolved these issues. The company's request for rate relief in respect to the expenses attributable to the Nelseco, however, posed questions that were not fully adjudicated.
Noting that the Nelseco was not in service during the test year (1980), the commission determined that it could include the ship's depreciation and interest expenses in the revised tariff only if "the charges are known and measurable for the twelve months ended [sic] December 31, 1981." After reviewing the company's justification for including these expenses in the proposed tariff, the commission disallowed them because they were not known and measurable on May 14, 1981. More specifically, the commission held that
"the costs of completing and outfitting the Nelseco II are too speculative at this time but should be reviewed in the near future. * * * We do believe, however, that it will be in the public interest to place the Nelseco II in service and to afford it proper rate treatment as soon as possible.
"Most importantly * * * the Commission feels that it cannot approve some changes without considering all possible revenue increases and expense savings. Therefore, the Commission agrees with the Division and will disallow these expenses until a later time when they are known and measurable."
The commission therefore issued only an interim order regarding rate relief for the depreciation and interest expenses of the Nelseco.
This order instructed the company to file, no later than September 30, 1981, a complete report of expenses and revenue for the period from January 1, 1981, to September 7, 1981. The commission specified that this report should itemize all expenses for constructing and outfitting the Nelseco and should analyze the most efficient use of the company's vessels for service to Block Island.
The commission awarded Interstate a rate increase of $105,637, which was well below the company's proposed tariff. The final issue that the commission addressed was the company's proposed rate design. Although the division had not disputed the company's plan, the commission ordered the company to apply the rate increase to all categories of passenger-related rates equally. Moreover, motivated by a concern that cargo rates might be unfairly subsidized by passenger-related rates, the commission instructed the company to conduct a cargo rate study, which the company was to file *753 by September 30, 1981, with its 1981 revenue and expense report.
After a continuance, the company filed a report with the commission on October 15, 1981. This report supplied data concerning revenue and expenses for the period January 1, 1981, through September 7, 1981. A balance sheet that was dated September 7, 1981 accompanied the report. However, the company did not file the cargo rate study that the commission had requested in its interim order.
On November 4, 1981, Interstate notified the commission that the company was seeking a rate increase of $73,441 through further proceedings in docket No. 1572. Further, the company asserted that the requested cargo rate study was not feasible. Accordingly, the company requested that the remaining issues be resolved and that the study be deferred to a future docket.
The commission held the first hearing on the company's requests on March 1, 1982. This hearing dealt solely with the company's failure to conduct the cargo rate study. Citing the difficulty of conducting such a study during the off season, the company suggested that it be allowed to defer completion of the study until after the expenses for Nelseco were given appropriate rate treatment. The division, on the other hand, interpreted the May 14, 1981 interim order of the commission as requiring the cargo rate study's completion prior to further proceedings in docket No. 1572. The commission disagreed. Rather, it ordered the division to conduct an audit of Interstate to facilitate the resolution of the remaining issues in the case. The commission, however, instructed the company to complete the cargo rate study prior to any requests for rate relief in future dockets.
Further hearings were held on April 1, 1982, and on April 16, 1982. As they had done in the spring of 1981, representatives of Interstate testified at these hearings in support of the company's request for rate relief. Similarly, representatives of the division urged the commission to grant no relief to the company for the depreciation and interest expenses attributable to the Nelseco, which started service on the Block Island run on or about July 1, 1981.
The April 1982 hearings disclosed the following evidence.[1] According to the company, the interest expense for the Nelseco in 1981 equaled $87,500, and the ship's depreciation expense for the same period was $24,500. Although the sum of these figures was $112,000, Interstate felt constrained by the previous proceedings in docket No. 1572. The company therefore requested only $73,441 in rate relief, which represented the difference between the original proposed tariff and the rate increase that the commission had awarded on May 14, 1981.
The division, on the other hand, proposed to allow the company $44,265 in interest expense and $4,500 for depreciation but would offset these costs by revenue increases of $207,619 that were attributable to the Nelseco's operation during the summer of 1981. Accordingly, the division recommended to the commission a zero increase in rates.
Raymond Linda, general manager of Interstate, admitted that the Nelseco generated extra revenue but could not specify the amount because canceled tickets for the various ships were burned after collection. John G. Kanabis, the company's certified public accountant, verified that the company did not segregate passenger revenue on a vessel-by-vessel basis. Mr. Kanabis attributed the increase in passenger revenue to the Nelseco's operation and to the increased popularity of Block Island with summer tourists.
The division presented James I. Goldman, a certified public accountant, as an expert witness. He had been retained by the division to conduct a cost-benefit analysis in *754 regard to the company's addition of the Nelseco. Mr. Goldman ascertained the costs and expenses that the company incurred because of the new vessel and determined what benefits the company derived from the use of the ship in the areas of labor and fuel costs. In addition, Mr. Goldman allocated total passenger revenue among all of Interstate's vessels, except for the Yankee, relying on a comparison of the total passenger capacity of each vessel to the total passenger capacity of all vessels for the period the ships were in operation. This formula resulted in Mr. Goldman's concluding that passenger revenue attributable to the Nelseco during the summer of 1981 amounted to $220,599.
The commission rendered its final report and order in docket No. 1572 on May 28, 1982. First, the commission interpreted the portion of the interim order in which the commission had held that it could not approve rate relief for the charges attributable to the Nelseco without considering revenue increases and expense savings that the vessel might produce. The commission posited that by "revenue increases and expense savings" it had meant "the extra revenues generated as a result of the Nelseco II being put in service and any possible expense savings which may have evolved as a result of using the Nelseco II rather than one of the less efficient boats."
Next, the commission noted that the company had not contested the division's assertion that the Nelseco had generated extra revenue. The commission rejected Interstate's claim that the destruction of canceled tickets prevented the company from calculating precisely the amount of increased revenue attributable to the Nelseco. Consequently, the commission held that
"[s]ince the Company totally failed to meet its burden of proof by supplying adequate information relating to revenue offsets and expense savings * * * it would be imprudent * * * to approve any additional charges absent the necessary offsets."
The commission therefore denied and dismissed Interstate's request for rate relief and instructed the company to file a complete rate case if, in the future, the company determines that revenue increases are not offsetting additional expenses. The commission further ordered Interstate to supply a cargo rate study prior to any future rate filing. The company filed a petition for certiorari with this court on June 4, 1982. The writ issued and was returned before the specified date.
In its brief the company raises issues that relate to the commission's findings in both the May 1981 decision and interim order and the May 1982 final report and order. Before we specify the issues that we shall address, we must consider the commission's contention that Interstate's noncompliance with the provision of § 39-5-1 renders the commission's interim order nonreviewable at this time.
Section 39-5-1, which authorizes judicial review in public utilities cases, provides:
"Any person aggrieved by a decision or order of the commission may, within seven (7) days from the date of such decision or order, petition the supreme court for a writ of certiorari to review the legality and reasonableness of said decision or order. The petition for a writ of certiorari shall fully set forth the specific reasons for which it is claimed that the decision or order is unlawful or unreasonable. Chapter 35 of title 42 shall not be applicable to appeals from the commission. The procedure established by this chapter shall constitute the exclusive remedy for persons and companies aggrieved by any order or judgment of the commission; provided, however, any person aggrieved by a final decision or order of the administrator may appeal therefrom to the superior court pursuant to the provisions of § 42-35-15." (Emphasis added.)
Although the company filed its petition for certiorari within seven days of the commission's final order in docket No. 1572, the filing date was more than a year later than the date of the commission's interim order. *755 Contending that the interim order was not appealable, the company cites Boston Gas Co. v. Department of Public Utilities, 368 Mass. 780, 336 N.E.2d 713 (1975). In that case the Massachusetts Supreme Judicial Court interpreted the state's counterpart to G.L. § 39-5-1. Unlike our statute, the Massachusetts statute authorizes appeals "from any final decision, order or ruling of the commission * * *." Mass. Gen. Laws Ann. ch. 25, § 5 (West 1981). (Emphasis added.)
Section 39-5-1, on the other hand, refers to finality only in respect to an aggrieved party's ability to appeal a final order or decision of the administrator of the division pursuant to section 15 of chapter 35 of title 42, which chapter embodies the Administrative Procedures Act. Moreover, § 39-5-1 expressly excludes the applicability of all provisions of the Administrative Procedures Act, including § 42-35-15, to appeals from the commission. Providence Gas Co. v. Burke, 119 R.I. 487, 502 n. 5, 380 A.2d 1334, 1342 n. 5 (1977). The Legislature therefore intended that all decisions and orders of the commission be appealable to this court through petitions for certiorari.
We are of the opinion that all of the findings contained in the commission's decision and interim order were appealable on May 14, 1981.[2] Consequently, Interstate's failure to petition for a writ of certiorari within seven days of that date, as required by § 39-5-1, renders these findings nonreviewable. Accordingly, we dismiss the company's petition to review the commission's decision and interim order. We shall address only those issues that relate to the report and order of May 28, 1982.
The role of this court in reviewing findings of the commission is clearly defined by statute and case law. See e.g., New England Telephone & Telegraph Co. v. Public Utilities Commission, R.I., 446 A.2d 1376, 1380 (1982); Valley Gas Co. v. Burke, R.I., 406 A.2d 366, 369 (1979); Michaelson v. New England Telephone & Telegraph Co., 121 R.I. 722, 728, 404 A.2d 799, 803 (1979); G.L. 1956 (1977 Reenactment) § 39-5-3. The commission engages in factfinding; we do not. Instead, we determine whether the commission's findings are lawful and reasonable, fairly and substantially supported by legal evidence, and sufficiently specific to enable us to ascertain if the evidence upon which the commission based its findings reasonably supports the result. Blackstone Valley Chamber of Commerce v. Public Utilities Commission, 121 R.I. 122, 128, 396 A.2d 102, 105 (1979). Applying these standards, we now consider the contentions of the company which relate to the commission's final report and order.
I
Disallowance of Interest and Depreciation Expenses Attributable to the Nelseco II Because of Revenue Offsets
The company contends that the Nelseco's expenses warranted rate relief because there was no nexus between the ship's being placed into service and the increase in revenue that the company realized during 1981. According to Interstate, delays caused by long passenger lines had plagued the Block Island run in the past. The company used the Nelseco between Block Island and existing terminals that had suffered from these delays. The company asserts, therefore, that the Nelseco did not generate *756 any new revenue, as it might have done had the company used the vessel between Block Island and newly established terminals.
We find this contention perplexing in light of Mr. Linda's admission that the Nelseco had generated new revenue for the company. In its brief, the company explains this inconsistency by claiming that the Nelseco, along with the company's other vessels, was used to transport an unexpected increase in the company's passenger pool as well as passengers in what the company characterizes as the "basic pool." The company suggests to this court, therefore, that Mr. Linda meant that all of the vessels generated new revenue.
We are of the opinion that our acceptance of this line of reasoning would have no effect upon the disposition of the company's petition. Even if all of the vessels in Interstate's fleet, rather than only the Nelseco, generated new revenue during 1981, our review would still focus on the commission's finding that those revenues attributable to the Nelseco offset the ship's interest and depreciation expenses. Our determination of the validity of this finding, in turn, is affected by the legitimacy of two contentions that the company has set forth: (1) the nexus argument, to which we have already referred, and (2) the contention that Mr. Goldman's formula for allocating increased revenue among the company's ships was hypothetical and, as such, constituted illegal, incompetent evidence that the commission should have disregarded. If we accept the company's challenge to the evidence adduced through Mr. Goldman's testimony, we must reverse the report and order of May 28, 1982, because the commission's disallowance of rate relief for the Nelseco's expenses was based solely upon this evidence.
Prior to considering this issue, however, we must make clear that we find the company's nexus argument unpersuasive. Interstate seems to suggest that a capital investment, such as a new vessel, must service customers to whom a company had never previously offered service for that investment to generate new revenue. In this case, the general manager of Interstate attributed the growth in revenue during 1981, in part, to an upsurge in the popularity of Block Island with summer tourists. If the company had not placed the Nelseco in service during the summer of 1981, it is quite likely that the company's fleet would have been incapable of adequately handling the increased demand for passenger space. Other palliatives, such as additional trips to the island, would probably have failed to meet the need. Consequently, the company would have lost revenue that it would have realized had the Nelseco been placed in service. It is therefore illogical to contend that no connection exists between the Nelseco and increased passenger revenue. In any event, it should be noted that an application for rate relief must be based upon the total revenues and expenses of the company. In arriving at a determination of revenue offsets to expenses, the experience of a particular vessel is of interest and may well be a significant factor in the determination. It is not, however, the only factor or indeed even a sine qua non in the determination of entitlement to the privilege of charging higher fares to customers. Such a determination should be made, as it was made in this case, on the basis of the total income and expense statement for the relevant period.[3] Accordingly, the sole issue before us is whether the commission's decision in respect to the denial of rate relief was based upon legally competent evidence relating to income and expenses of the company.
Mr. Goldman was retained by the division to conduct a financial review of Interstate based upon income statements and other information that the company supplied. This review was intended to result in a determination of whether increases in passenger revenue attributable to the Nelseco offset the ship's depreciation and interest expenses. He visited the company's office *757 in New London, Connecticut, and met with officers of the company. During the course of his analysis, Mr. Goldman learned from Mr. John Kanabis, the company's general manager, that passenger revenue was not segregated by vessel, except for the Yankee.[4] According to Mr. Goldman's report and his prefiled testimony he therefore developed a formula for allocating passenger revenue among the various ships, after discussing the reasonableness of the formula with Mr. Kanabis. Mr. Goldman allocated total passenger revenue for the period January 1, 1981, to September 7, 1981, among the Manitou, the Manisee, the Quonset and the Nelseco by comparing each vessel's prorata share of passenger capacity with the total passenger capacity of all of the vessels and applying that ratio to total passenger revenues. He applied the same formula to the entire year 1981.[5] This procedure resulted in a determination that the company's total passenger revenue increased by $194,228 from 1980 to 1981. According to the allocation formula, the company realized $226,942 in passenger revenue during 1981 from the operation of the Nelseco.[6] This entire amount represented an increase in revenue because the Nelseco was not in service during 1980. Of the total amount of passenger revenue that the Nelseco generated during 1981, Mr. Goldman calculated that the ship generated $220,599 between January 1, 1981, and September 7, 1981.
Mr. Goldman suggested that the commission apply this entire amount to offset the Nelseco's expenses. The division adopted this theory but, in the alternative, proposed that the commission apply a revenue offset of $207,619. The reason for this strategy was as follows. The company's income statement for the years 1979 through 1981, which the company filed prior to the end of 1981, projected an increase in expenses for the company from 1980 to 1981 in the amount of $334,307.[7] Mr. Goldman's financial review, however, indicated that the expense increase was $311,519.[8] This discrepancy resulted from adjustments that Mr. Goldman made to the company's overall interest and depreciation expense for 1981. In a memorandum filed with the commission, the division suggested that the company's 1981 expense figure was too high but addressed the commission's possible acceptance of the figure and the effect of that acceptance on the revenue offset attributable to the Nelseco.
First, the division calculated, relying on the product of the number of vessels and the number of months they were in service during 1981, a total of fifty-four vessel/months during 1981.[9] Next, since the period in question (July 1 to September 7) was only 2.5 months, or 4.1 percent of fifty-four, the division determined that 4.1 percent of the company's 1981 expense increase was attributable to the Nelseco during the relevant period. The division therefore purported to apply the percentage to the expense-increase figure that the company had set forth and to reduce the division's revenue offset by this amount.
A reapplication of this formula reveals that the division made some minor mistakes when calculating the adjusted revenue offset. *758 We believe however that these miscalculations are not prejudicial to the company. Even though the commission ultimately adopted the division's version of the adjusted revenue offset, an application of more accurate calculations regarding the revenue offset would have led the commission to the same result; the revised figure would still far exceed the company's request for rate relief in the amount of $73,441.
After reviewing all of the evidence presented to the commission, we are of the opinion that the commission's finding of a revenue offset in this case was lawful, reasonable, and substantially supported by legally competent evidence. Mr. Goldman's formula for allocating the increased revenue among the ships was reasonable and fair to the company. Interstate, after all, made absolutely no attempt to comply with the commission's request for data concerning expense savings and revenue increases specifically attributable to the Nelseco. As the party seeking rate relief, the company had the burden of establishing its entitlement to such relief. General Laws § 39-3-12; see Providence Gas Co. v. Burke, R.I., 419 A.2d 263, 266 (1980); Valley Gas Co. v. Burke, R.I., 406 A.2d 366, 370 (1979); Michaelson v. New England Telephone & Telegraph Co., 121 R.I. at 734, 404 A.2d at 806; see also United States v. Public Utilities Commission, 120 R.I. 959, 963, 393 A.2d 1092, 1094 (1978) (by enacting § 39-3-12 the Legislature has recognized the "general principle that a moving party must prove its case").
Moreover, there is no merit to the company's implicit comparison of Mr. Goldman's revenue allocation formula to the deduction of a "theoretical deficiency" from the rate base, resulting from a retroactive application of a new rate of depreciation, which practice we most recently invalidated in Blackstone Valley Electric Co. v. Public Utilities Commission, R.I., 447 A.2d 1152 (1982). Mr. Goldman developed his formula after consulting with Interstate's general manager and based it upon ascertainable facts, namely, the passenger capacity of each vessel in the company's fleet during the relevant periods, the total passenger capacity of the entire fleet, the number of months that each ship was in service, and the total amount of passenger revenue that the company realized. The formula was by no means theoretical in the sense that we used that word in Blackstone Valley. Rather, it was a well-reasoned, rational method of completing a task that the company should have undertaken that is, calculating the amount of passenger revenue attributable to the Nelseco during the summer of 1981. Accordingly, we find no error in the commission's reliance upon Mr. Goldman's testimony.
II
The Absence from the Commission's May 28, 1982 Report and Order of Any Reference to Testimony Regarding Nonrecurring Items of Income
We decline to address the company's argument in respect to this issue because it does not relate to this docket. From the outset, the commission addressed a claim for rate relief in docket No. 1572 which was based solely upon the company's addition of the Nelseco to its fleet. The commission's interim order left the docket open only in respect to the Nelseco. Although the company was free, absent objection, to introduce irrelevant evidence, the commission properly ignored the company's assertions regarding nonrecurring items of income.
III
Due Process Issues
As its final claim the company asserts that the commission deprived it of procedural due process during the travel of docket No. 1572 because the commission (1) rendered a nonappealable order on May 14, 1981, (2) delayed resolution of the company's request for rate relief unreasonably, (3) lacked appropriate standards for addressing *759 the company's request and, without warning, deviated from standards that it had previously applied to regulate the company, and (4) failed to undertake its duties with expertise. The company's first point is controlled by our finding that the May 14, 1981 decision and interim order was appealable. As for the other contentions, they do not warrant lengthy discussion because they are wholly without merit.
A review of the record in this case indicates that the commission complied with its own rules of practice and procedure and with the provisions of the Administrative Procedures Act.[10] Any delays that resulted were not unreasonable and were caused, in part, by the company's failure to appeal the May 14, 1981 decision and interim order and to comply with the commission's data requests. The commission, under the circumstances, acted expeditiously in resolving the company's claim for rate relief.
Finally, the company's challenge to the commission's standard and level of expertise is untenable. By accepting the testimony of the division's expert witness, the commission acted fairly and professionally. Furthermore, the company was well aware, as of May 14, 1981, of the standards that the commission would apply when determining whether the Nelseco's interest and depreciation expense should be afforded rate relief.
IV
The Motion to Dismiss
On March 16, 1983, the commission filed a motion to dismiss further proceedings before this court in respect to the company's petition. We deferred action on the motion to dismiss because, since the date for oral argument in this case was imminent, the commission could raise at oral argument the contentions that formed the basis of the motion.
It is unnecessary for us to review these contentions or to address their validity because they are rendered moot by the determinations that we have set forth today: (1) the decision and interim order was appealable and the company's noncompliance with proper appellate procedure rendered the findings contained therein nonreviewable; (2) the findings of the commission on May 28, 1982, were valid; and (3) the company's claim that the commission's lack of expertise and adequate regulatory guidelines deprived the company of procedural due process was without merit. Consequently, we deny the motion to dismiss without further discussion.
V
Conclusion
For the reasons stated, the company's petition for certiorari is denied and dismissed. The writ heretofore issued is quashed. The records certified to this court are remanded to the commission with our decision endorsed thereon.
*760 APPENDIX A
INTERSTATE NAVIGATION COMPANY PASSENGER REVENUE
FOR THE TOTAL YANKEE MANITOU MANISEE QUONSET NELSECO II
PERIOD
January 1,
1981, to $825,629 $76,040 $205,899 $205,899 $117,192 $220,599
September 7,
1981
January 1,
1981, to $936,095 $76,323 $242,014 $270,254 $120,562 $226,942
December 31,
1981
January 1,
1980, to $741,867 $98,263 $260,486 $209,887 $173,231 ___
December 31,
1980
APPENDIX B
INTERSTATE NAVIGATION CO., INC.
INCOME STATEMENT FOR THE YEARS
XXXX-XXXX-XXXX
1981 1980 1979
Operating revenues $1,448,505 $1,105,688 $ 937,242
Operating expenses:
Maintenance payroll $ 75,339 $ 56,473 $ 39,290
Maintenance expense 139,322 91,669 135,616
Depreciation 54,697 36,415 27,123
Crew payroll 269,596 236,187 200,929
Fuel 209,096 156,249 94,911
Wharfage 28,540 28,280 30,150
Supplies 52,548 46,807 57,281
Freight agents 58,482 39,037 27,836
Utilities 17,335 14,883 12,013
Vehicle expense 10,979 13,864 9,672
Other terminal expenses 16,185 14,035 14,433
Pursers 28,141 19,971 17,337
Traffic expenses 19,705 19,191 13,574
General salaries 69,209 46,824 35,400
Other general-office expenses 53,196 46,726 26,241
Insurance and casualties 56,737 59,829 69,178
Payroll taxes 59,402 45,643 28,239
Other taxes 41,633 36,585 31,824
Interest 89,951 17,552 -0-
Other vessel expense 22,644 16,120 -0-
Rate-case expenses 6,000 2,000 -0-
__________ __________ _________
Total operating expenses $1,378,647 $1,044,340 $ 871,047
__________ __________ _________
Operating income $ 69,858 $ 61,348 $ 66,195
========== ========== =========
*761 APPENDIX C
INTERSTATE NAVIGATION COMPANY
INCOME STATEMENT
FOR THE PERIOD JANUARY 1, 1981, to DECEMBER 31, 1981
Adjusted
income
Per company Adjustments statement
Revenue
Passengers $ 936,095 $ 936,095
Cars 181,325 181,325
Freight 166,803 166,803
Bar 58,723 58,723
Bikes 55,558 55,558
Charter 27,825 27,825
Mail 22,176 22,176
__________ __________
Total Revenue $1,448,505 $1,448,505
__________ __________
Selling, administrative, and operating expenses
Payroll 469,567 469,567
Fuel and lubrication 216,956 216,956
Boat repairs 123,590 123,590
Interest[*] 89,951[**] (19,954)[3][***] 69,997
Casualties and insurance 65,741 65,741
Payroll taxes 59,402 59,402
Depreciation[*] 54,697[**] (2,834)[2][***] 51,863
Food 47,782 47,782
Taxes 41,633 41,633
Officers' payroll 31,200 31,200
Wharfage 28,540 28,540
Professional fees 20,195 20,195
Utilities, telephone, and 17,335 17,335
water
Supplies 13,731 13,731
Auto and truck expenses 10,979 10,979
Building repairs 10,404 10,404
Telephone 10,311 10,311
Other traffic expenses 10,247 10,247
Advertising 9,458 9,458
Office expenses 8,454 8,454
Local transportation 8,430 8,430
Travel 7,002 7,002
Public Utilities Commission 6,000 6,000
Other vessel expense 5,729 5,729
Miscellaneous 5,232 5,232
Terminal repairs 3,585 3,585
Other maintenance and
repair 1,743 1,743
Other terminal expense 753 753
_________ _______
Total selling,
administrative and
operating expenses 1,378,647 22,788 1,355,859
_________ ________ ___________
Net income before income
taxes $ 69,858 $ 22,788 $ 92,646
========= ========= ===========
NOTES
[1] In addition to presenting witnesses at these hearings, both the division and Interstate introduced prefiled testimony into evidence. For the sake of clarity and convenience, we shall incorporate information derived from both sources when reviewing the relevant testimony of the witnesses.
[2] Even if we were to interpret G.L. 1956 (1977 Reenactment) § 39-5-1 as requiring finality, we believe that several findings that the commission set forth in its decision and interim order were final and appealable on May 14, 1981. We need not specify these findings or address, for the sake of argument, their validity because the company failed to comply with § 39-5-1. We note, however, that the May 14, 1981 findings of the commission prospectively addressed the company's financial situation. The May 28, 1982 final report and order, on the other hand, dealt with circumstances as they actually developed during the summer of 1981. At this juncture, therefore, it would be confusing and quite possibly futile for this court to review findings that have been rendered nugatory through the passage of time, changed circumstances, and a subsequent report and order of the commission.
[3] See note 7 infra.
[4] The company recorded the Yankee's passenger revenue separately because it originated from a different terminal than the other vessels.
[5] Mr. Goldman's breakdown of passenger revenue appears as Appendix A to this opinion.
[6] The passenger revenue attributable to the Nelseco during 1981 exceeds the overall increase for 1981 because several of the company's other ships generated less revenue during 1981 than they had during 1980.
[7] Appendix B is the company's income-statement comparison of the years 1979 through 1981. It should be noted that operating income increased from 1980 to 1981.
[8] We have denoted as Appendix C Mr. Goldman's version of the company's 1981 income statement. Mr. Goldman's statement shows a greater net operating income than does the company's statement in Appendix B.
[9] Four of the company's vessels were in service for twelve months during 1981, but the Nelseco operated for the last six months of the year only.
[10] The notice and hearing requirements of the Administrative Procedures Act apply to all "contested cases" before the commission. Providence Gas Co. v. Burke, 119 R.I. 487, 502, 380 A.2d 1334, 1342 (1977); see G.L. 1956 (1977 Reenactment) § 42-35-1. These requirements are set forth in § 42-35-9, as amended by P.L. 1979, ch. 370, § 1, and P.L. 1981, ch. 424, § 1.
[*] Note: Emphasis added.
[**] The figures for interest and depreciation include the interest and depreciation expenses attributable to the Nelseco.
[***] Mr. Goldman included these footnotes to refer readers of his report to the portion in which he comprehensively explained the sources of his downward adjustments to interest and depreciation expenses. We have not included these explanatory charts in this series of appendices because the downward adjustment is not relevant to the case before us.
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01-03-2023
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10-30-2013
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841 F. Supp. 1193 (1994)
Leon DAVIS, Plaintiff,
v.
L.D. MOSS, et al., Defendants.
C.A. 90-278-4-MAC (WDO).
United States District Court, M.D. Georgia, Macon Division.
January 4, 1994.
*1194 Leland K. Hawks, Jr., Monroe, GA, John W. Timmons, Jr., Athens, GA, for Leon Davis.
Carlton Latain Kell, Atlanta, GA, Jerry A. Lumley, Timothy Harden, III, Macon, GA, for L.D. Moss.
Carlton Latain Kell, Neal B. Childers, Atlanta, GA, for Gerald Jordan.
*1195 OWENS, Chief Judge:
The court held a bench trial in this prisoner civil rights action brought under 42 U.S.C. § 1983. Plaintiff Davis charged that his Eighth Amendment right to be free from cruel and unusual punishment was abridged by defendant Moss when he shoved plaintiff down the stairs of a fire escape and by defendant Jordan when he punched Davis in the face and struck Davis' legs with a night stick. Davis prays for compensatory and punitive damages. The court will consider the claims separately as plaintiff does not allege that the defendants acted in concert. After thorough consideration of the evidence presented at trial and the relevant law, the court makes the following findings of fact and conclusions of law.
FACTS
At all times relevant to plaintiff's claim, he was an inmate of the Rivers Correctional Institution ("Rivers C.I."), Hardwick, Georgia. Defendants Moss and Jordan were employed as correctional officers at Rivers C.I. In the late night and early morning hours of January 3 and 4, 1989, a riot broke out in several buildings at Rivers C.I. The plaintiff was housed in dormitory one on the first floor of the North building ("Rivers North"). The North building houses inmates on floors one, two, and three. Dormitories one and two are on the first floor, dormitories three and four are on the second floor, and dormitories five and six are on the third level.
On the night of January 3, 1989, some of the Rivers North inmates participated in the riot by building fires on pool tables, breaking televisions, lights, and windows, and otherwise creating a disturbance. In sum, thirteen fires blazed in three prison buildings. Witnesses reported that fire and smoke spilled out of the broken windows. Correctional officials from Rivers and surrounding institutions were called in to assist in quelling the riot. They in turn were backed up by local law enforcement.
Tactical squads, or riot teams, were charged with entering the dormitories, subduing the rioting inmates, and evacuating the others. Defendant Jordan was a member of a tactical squad assigned to evacuate the North building. Each tactical squad member wore a black jacket and pants and was equipped with a gas mask and helmet. Under the direction of Captain Stanley, Jordan's tactical squad first entered dormitory five after using tear gas to mollify the rioters. Tear gas was not used in any other dormitory in the North building. Dormitory one was the last one in Rivers North to be evacuated. When the tactical squad arrived at dormitory one, the warden had already removed the rioters, who were relatively few in number. Tactical squad members entered dormitory one, led the remaining inmates to the sallie port door where they handcuffed the inmates with "plasti-cuffs", and turned them over to correctional officers who directed them up the stairwell and into the cafeteria.[1]
Plaintiff Davis testified that Correctional Officer Jordan, dressed in a light blue jumpsuit or uniform, was standing on the first landing and that as Davis walked up the stairs from his dormitory, Jordan punched him in the face. Davis walked back down the stairs and was told by an unidentified officer to continue back up the stairs. As Davis complied with this directive, Jordan struck his legs with his night stick. Davis does not claim any permanent injuries as a result of this beating.
The court disbelieves Davis' testimony and allegations against Jordan. Witnesses, including Jordan himself, testified that Jordan and all tactical squad members wore the black uniform of the squad as opposed to a light blue uniform. Additionally, the gas masks and helmet, which Jordan wore throughout the four-hour riot, made the tactical squad members unrecognizable. Moreover, the tactical squad worked solely in the dormitories and did not use the stairwells while inmates were being evacuated. In sum, plaintiff has not proven that Jordan used excessive force upon him by a preponderance *1196 of the evidence. Accordingly, judgment must be granted in favor of Jordan.
Davis further testified that as he was escorted out of dormitory one he looked through a window and saw inmates being thrown down the fire escape stairs. Davis then climbed the stairs to the second floor and walked through the cafeteria.[2] As he walked toward the door to the fire escape, Davis saw Moss throwing people down the metal fire escape and tried to attract the attention of Jack Joris, a senior counselor at Rivers, who was present in the cafeteria.[3] Before Davis could speak with Joris, Moss grabbed him from behind at the shoulders and by his handcuffed hands and shoved him outside and down the fire escape stairs. Davis fell head over heels down the metal stairs.[4]
Counselor Joris testified that he was an eyewitness to the assault and that Moss intentionally and angrily shoved Davis down the stairs. Moreover, Moss had no need to discipline Davis, according to Joris, because he was not "acting up". Immediately after the incident, Joris ran to the fire escape doorway, thinking that Moss had thrown the inmate over the railing of the fire escape. At that point, he saw Davis pick himself up after having fallen to the first floor landing. Joris immediately confronted Moss about the shoving, and the pair exchanged words. Joris promptly reported the incident first to the deputy warden and then to others. Upon learning that Moss had been involved in a disturbance, the warden reassigned Moss to the East building for the remainder of the evacuation.
Another witness, Sam Flurry,[5] testified to seeing Moss and Davis at the top of the fire escape at Rivers North, when Moss "turned the inmate loose" and Davis tumbled down a flight of stairs, tried to right himself and fell down the rest of the stairs. Flurry was "troubled" by the incident.
Moss denied shoving any inmate and denied seeing any inmate tumble down the stairs. Moss testified that he escorted the inmates to the top of the fire escape where he then handed the prisoners over to another correctional officer; however, he could not identify the officer who assisted him on the stairs. Moss claims only to have evacuated dormitories four, five, and six, which were the first three dormitories to be evacuated. Several witnesses testified to Moss' good reputation as a correctional officer and to his calm demeanor on the night of the riot.
After considering all the evidence and noting inconsistencies of certain testimony, the court finds that plaintiff Davis has proven by a preponderance of the evidence that Correctional Officer Moss used excessive force in violation of Davis' Eighth Amendment rights when he shoved Davis down the fire escape stairs of Rivers North on January 4, 1989. The eyewitness corroboration of Davis' claim was compelling. In addition, the testimony of defendant Moss did not appear credible, as it seems incredible that Moss failed to see plaintiff fall down the stairs.
ANALYSIS
The Eighth Amendment protects prisoners from "cruel and unusual punishment." See Wilson v. Seiter, 501 U.S. 294, ___, 111 S. Ct. 2321, 2323, 115 L. Ed. 2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 102-05, 97 S. Ct. 285, 290-91, 50 L. Ed. 2d 251 (1976). Such cruel and unusual punishment occurs where prison officials inflict pain on *1197 prisoners unnecessarily and wantonly. Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed. 2d 251, 260 (1986). Eighth Amendment claims consist of both an objective and subjective component. See Hudson v. McMillian, 503 U.S. ___, ___-___, 112 S. Ct. 995, 999-1000, 117 L. Ed. 2d 156, 166 (1992); Wilson, 501 U.S. at ___, 111 S.Ct. at 2324. Courts "must ask both if `the officials act[ed] with a sufficiently culpable state of mind' and if the alleged wrongdoing was objectively `harmful enough' to establish a constitutional violation." Hudson, 503 U.S. at ___, 112 S.Ct. at 1000, citing, Wilson, 501 U.S. at ___, 111 S.Ct. at 2321.
The objective analysis of an Eighth Amendment claim focuses on whether the deprivation is of a serious nature. The Supreme Court has rejected the argument that a plaintiff's injury must be significant for him to state a claim of excessive force under the Eighth Amendment. Hudson, 503 U.S. at ___, 112 S.Ct. at 999. Davis suffered substantial injury as a result of his fall down the fire escape stairs. The fall itself produced significant pain; moreover, the fall permanently damaged two discs in plaintiff's lower back causing him to undergo back surgery. Therefore, Davis' claim satisfies the objective prong of the Eighth Amendment analysis.
In addition, the plaintiff must satisfy the subjective component of an Eighth Amendment violation. The plaintiff must prove that the defendant acted with a certain state of mind, i.e. wantonly. The particular state of mind, intentional or malicious, depends on the basis of the claim. Compare Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976) (wantonness in challenge to inadequate medical treatment is "deliberate indifference" by prison officials); with Hudson, 503 U.S. at ___, 112 S.Ct. at 999 (wantonness in excessive force claim is "malicious and sadistic" behavior). In an excessive force claim, the court must find that the official acted "in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at ___, 112 S.Ct. at 999. The Hudson Court extended the above standard, first announced in Whitley, to all excessive force claims. The Court reasoned that the prison officials, whether they are presented with a riot situation as in Whitley or simply are attempting to maintain order and discipline, must balance the need to restore discipline with the risk of injury to inmates. Hudson, 503 U.S. at ___, 112 S.Ct. at 999. When assessing the defendant's behavior, a finder of fact should consider the following factors: 1) the extent of the plaintiff's injuries; 2) the need for the application of force; 3) the correlation between that need and the amount of force used; 4) the threat reasonably perceived by the defendant; and 5) any efforts made by the defendant to temper the severity of a forceful response. Hudson, 503 U.S. at ___, 112 S.Ct. at 999 (citing Whitley, 475 U.S. at 321, 106 S.Ct. at 1085).
Analyzing the action of Moss under the maliciousness standard of Hudson, the court finds that Moss did not act with a good faith motive to restore discipline. Plaintiff was handcuffed and was neither resisting nor threatening Correctional Officer Moss. Defendant presented no evidence of the need to use force whatsoever, much less the amount of force needed to shove a man down a flight of metal stairs. The court finds that Moss' actions were motivated by malice and ill will toward inmate Davis. Plaintiff Davis must prevail on his Eighth Amendment claim against defendant Moss.
DAMAGES
In light of the above findings of fact and conclusions of law, an award of damages to plaintiff is appropriate to compensate for the pain he suffered at the time of the incident and for any lasting effects he suffers. However, special damages are not warranted because all of plaintiff's medical expenses have been paid by the Department of Corrections, and the plaintiff's own expert physician concludes that further surgery is unnecessary.
The parties have contested the appropriateness of an award for lost earning capacity. Generally, the amount of damages must be proved with a reasonable degree of certainty so that the award is not the product of speculation. While this rule does not prevent a plaintiff who works intermittently to be awarded an amount for diminished earning capacity, evidence must be presented *1198 from which a finder of fact can estimate, or infer the loss or decrease in earning capacity with reasonable certainty. Michaels v. Kroger Co., 172 Ga.App. 280, 286, 322 S.E.2d 903 (1984); Hunt v. Williams, 104 Ga.App. 442, 443, 122 S.E.2d 149 (1961). See also Draper Canning Co. v. Dempsey, 91 Ga.App. 593, 597, 86 S.E.2d 678 (1955).
After considering this issue, the court has determined as a factual matter that plaintiff is not entitled to recover for lost earnings capacity. The evidence does not justify such an award because plaintiff has presented no evidence of past gainful employment or other productive activity. While plaintiff's back problems may limit his ability to accomplish certain job tasks, the court finds no evidence that plaintiff would have applied himself to income-generating employment but for the injury. Plaintiff's past work history is minimal. Though apparently supporting himself, he worked only sporadically at farm jobs.[6] He left high school while in eighth grade. Since that time, he has been in and out of the Georgia penal system.[7] After being paroled on May 21, 1993, plaintiff has failed to go to either the unemployment office or the department of vocational rehabilitation. Moreover, he admits to not having applied for jobs, but has simply "asked around". In light of plaintiff's meager past work history, the court finds that any award for impairment of his earning capacity would be speculative.
In conclusion, compensatory damages are warranted to compensate plaintiff for his pain and suffering. Against Correctional Officer Moss, the court awards the plaintiff $10,000 in compensatory damages.
The court further concludes that punitive damages should be awarded in this case. Smith v. Wade, 461 U.S. 30, 51-56, 103 S. Ct. 1625, 1637-40, 75 L. Ed. 2d 632 (1983). The imposition of punitive damages are necessary to deter Moss and other correctional officials from using unnecessary and malicious force against inmates. The Court in Smith v. Wade authorized punitive damages "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." The court recognizes that "callous indifference" may be insufficient to support an award of punitive damages in light of Hudson v. McMillian; however, the court has found specifically that Moss acted with a malicious intent to harm Davis. Hence, an award of punitive damages is appropriate. In his claim against Correctional Officer Moss, the court awards plaintiff $25,000 in punitive damages.
The plaintiff is directed to file and serve his fee petition on or before fourteen days after the entry of judgment in this case. Defendants are directed to file and serve their objections, if any, on or before twenty days after the filing of the fee petition. The court encourages the parties to settle the attorney fees issue. If after a good faith effort they cannot settle the issue, plaintiff's counsel should so notify the court.
CONCLUSION
The court directs the Clerk of the Court to enter judgment in favor of the plaintiff Davis with regard to the his Eighth Amendment claim against defendant Moss. The damage amounts should be entered as set in the preceding section of this Order, for an award in compensatory damages of $10,000, and an award in punitive damages of $25,000. The Clerk of the Court is further directed to enter judgment on plaintiff's Eighth Amendment *1199 claim against defendant Jordan in favor of Jordan.
SO ORDERED.
NOTES
[1] During the riot, the tactical squad members, while themselves correctional officers, were distinct from correctional officers who were not tactical squad members because the tactical squad was specially outfitted and assigned.
[2] Inmates on all floors had to be evacuated through the second floor because the other floors lacked fire escapes.
[3] Joris had been called around 1:30 am on January 4, 1989, and was asked to assist in the evacuation. He stationed himself in the second floor cafeteria to control the flow of inmates going through the cafeteria to the fire escape door.
[4] Witnesses dispute whether plaintiff fell the entire way down the stairs to the ground or whether he was able to right himself at the first floor landing. Determining the exact length of the fall is unnecessary, as Davis could have suffered injury from the fall regardless of its length.
[5] Sam Flurry worked as a correctional officer at Rivers and also part-time as a sheriff's deputy for Baldwin County. In his role as a sheriff's deputy, he was called to Rivers C.I. during the riot and stood outside Rivers North about 40 feet from the fire escape.
[6] Defendant's exhibit one, a pre-sentence investigation report completed in 1980, discloses that Davis worked sporadically as a chicken catcher, being paid by the number of chickens caught. His employer stated that Davis did not work fulltime, but "may work one day a week if he wants to." Defendant's Exhibit 1.
[7] Davis' criminal offenses began in 1976, when he was thirteen years of age. He was committed to the Youth Detention Center ("YDC") twice, before being convicted as an adult for burglary. He was conditionally released under the youthful offender program in March 1982. However, the parole board revoked his conditional release in August 1983 for failing to maintain full-time employment, possessing a firearm, and committing the offense of terroristic threats and acts. In November 1984, Davis was convicted of armed robbery. He was serving this sentence at the time of his injury.
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01-03-2023
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10-30-2013
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8 F.2d 9 (1925)
SLAKOFF
v.
UNITED STATES.
No. 3286.
Circuit Court of Appeals, Third Circuit.
September 29, 1925.
Henry W. Braude (of McAvoy & Braude), of Philadelphia, Pa., for plaintiff in error.
George W. Coles, U. S. Atty., and L. Le Roy Deininger, Asst. U. S. Atty., both of Philadelphia, Pa.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge.
Benjamin A. Slakoff, defendant below, was indicted, tried, and convicted for having devised a scheme and artifice to defraud and for obtaining property by means of false and fraudulent representations, and for using the mails for the purpose of executing the scheme, in violation of section 215 of the United States Criminal Code (Comp. St. § 10385).
He was engaged in manufacturing and selling clothing at the southeast corner of Twenty-Second and Arch streets, Philadelphia, Pa., under the name of B. A. Slakoff & Co. The indictment contains eight counts. In the first, second, third, and sixth he was charged with sending through the mails to prospective creditors a statement of which the following is a copy, representing his net worth to be $49,098.45 on December 30, 1922:
State of Financial Condition as of December 30,
1922.
Assets.
Cash on hand and in bank (National
Bank of Commerce) .............. $ 4,287.60
Accounts receivable .............. 31,012.19
Inventory ........................ 28,614.23
Machinery and fixtures ........... 9,849.06
Liberty bonds .................... 350.00
Real estate ...................... 7,850.00
Building & Loan Association ...... 1,651.25
__________
$83,614.33
Liabilities
Notes payable .................... $15,500.00
Other notes payable .............. 1,499.81
Accounts payable ................. 13,416.07
Mortgages ........................ 4,100.00
__________
Total ......................... $34,515.88
Net worth ..................... 49,098.45
__________
$83,614.33
In the fourth, fifth, seventh, and eighth, he was charged with sending through the mails a similar statement representing his net worth to be $57,006.95 on September 1, 1923. The first statement was sent out on January 6 and February 19, 1923, and the second on September 6, October 29, November 2, 3, and 6, 1923.
The statements were admittedly false, in that they did not correctly represent the assets, liabilities, and net worth of the defendant when they were made. Both statements contained an overstatement of his assets the first one by $18,000 and the second by $17,000.
On the basis of these statements, credit was extended to him. He seeks to relieve himself of the consequences of his alleged wrongdoing by the plea of ignorance, that *10 he did not knowingly and willfully devise the scheme. His counsel, summing up the substance of the testimony, said "that he was an illiterate man, not capable of dictating a letter, and that when a letter or statement was to be sent out he gave her (his bookkeeper) a general idea what to write, and either she or the stenographer wrote the letter, copied a statement, if one was to be sent out, and then defendant signed it. * * * It did not appear he fully realized their contents. He relied upon the figures given him. He was incapable of making up the statement himself, and it is doubtful if he fully understood it when presented to him for signature."
That the defendant did the acts charged is not, and cannot be, denied, but he may not be convicted and punished unless he knowingly and willfully did them with the intent to defraud and obtain credit and property. An incorrect statement, grossly misrepresenting facts, does not amount to fraud in law, unless the false representation was knowingly and willfully made with fraudulent intent. Gilpin v. Merchants' National Bank, 165 F. 607, 91 Cow. C. A. 445, 20 L. R. A. (N. S.) 1023; Cooper v. Schlesinger, 111 U.S. 148, 4 S. Ct. 360, 28 L. Ed. 382. It was the defendant's duty, however, to make such investigation as was necessary to enable him honestly to sign and send out the statements. If he did not do this, but acted with such gross carelessness and indifference to the truth of the representations contained in the statements as to warrant the conclusion that he acted fraudulently, then his conviction may stand. Kaplan v. United States, 229 F. 389, 143 Cow. C. A. 509; Yusem v. United States (C. C. A.) 8 F.(2d) 6.
The evidence, however, tended to establish that the defendant himself was responsible for the statements. He himself prepared them in part and furnished the bookkeeper with the figures which she put into them. If he did this, knowing the representations to be false, he was guilty of the crime charged. Whether or not he knew the falsity of the statements, and made and sent them out with fraudulent intent, are questions upon which there was sufficient evidence, if the jury believed it, to sustain the verdict. The evidence was correctly submitted to the jury. The court charged that "there must be in the case, not only a finding that the statements were false, but that they were sent out with the intent to defraud." The verdict settles the fact of intent, and the conviction must stand unless the trial judge otherwise committed reversible error.
This the defendant says he did in admitting in evidence his schedules in bankruptcy. Under section 21 (a) of the Bankruptcy Act of 1898 (Comp. St. § 9605), the bankrupt must testify and produce his books and papers when required to do so, but section 7 (9), being Comp. St. § 9591, provides that "no testimony given by him shall be offered in evidence against him in any criminal proceeding." This provision is simply the recognition of the constitutional immunity from self-incrimination of the Fifth Amendment. Testimony within the meaning of this section refers to oral evidence and not to schedules prepared at leisure and scrutinized with care by the bankrupt before he verifies them. Consequently they do not come within the inhibition of the act. Ensign v. Pennsylvania, 227 U.S. 592, 33 S. Ct. 321, 57 L. Ed. 658.
Did the court err in refusing to withdraw a juror because a motion for a new trial in another case of similar character was discussed in the presence of the jury and because in his address to the jury the assistant United States attorney, in speaking of the assets and liabilities, said: "But there has been no explanation here as to why these discrepancies appeared"?
No one apparently noticed the presence of the jury; at least, the attention of the court was not called to it until the argument was concluded. The defendant and his counsel are as much in fault, if there be fault, as any one. The occurrence was entirely unintentional, and its effect upon the jury is purely speculative. But in the case of McKibben v. Philadelphia & Reading Railroad Co., 251 F. 577, 163 Cow. C. A. 571, cited by defendant, the action of a former jury in that same case was designedly brought before the jury with the intention of influencing it. Furthermore it was alleged, and not denied, that during the trial of this case counsel for defendant raised and discussed identically the same questions before the jury that were discussed in the other case. It is the duty of courts to see that defendants have a fair trial and that their rights are protected; but it does not appear to us in this case that the rights or interests of the defendant were prejudiced. We do not think that the learned trial judge erred in refusing to withdraw a juror and continue the case.
The defendant did not testify or offer any testimony in his behalf. Act March 16, 1878 (20 Stat. 30; Comp. St. § 1465), provides *11 that, in the trial of all indictments in the United States courts, "the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him." If the statement to the jury was designed to direct attention to defendant's failure to testify or to create a presumption against him on that account; or if, in the ordinary use of language, it had such necessary effect, the statute was violated and reversible error was committed. Shea v. United States, 251 F. 440, 163 Cow. C. A. 458. In the case of Linden v. United States (C. C. A.) 296 F. 104, we said:
"Every one accused of crime is presumed to be innocent until proven guilty. During the period of that presumption, one so accused may combat the evidence brought against him; or he may, if he choose, meet it in silence. That is his right. For its protection the law imposes corresponding silence upon prosecutor and court. Neither can validly refer or indirectly call attention to his failure to speak in his own defense. Being innocent in the eyes of the law, he is not called upon to meet accusing testimony by contradiction or explanation. Therefore no presumption can lawfully be raised or comment lawfully be made upon his failure to do that which the law expressly says he shall not be required to do."
The assistant United States attorney said that the discrepancies in the assets and liabilities were shown from the books by the certified public accountant, and that what he had in mind was that neither in his direct nor cross examination was any explanation of them made from the books or otherwise by him. He might easily, under cross-examination, have shown from the books how this occurred. The assets as given in the statements consisted in part of an inventory, equity in real estate, and stock in a building and loan association. There might be an honest difference in opinion as to the value of the inventory and equity in real estate. We said, in the case of Yusem v. United States (C. C. A.) 8 F.(2d) 6, that "the amount of equity in real estate depends upon market value" of the real estate "and this value * * * is a matter of opinion. With the phenomenal rise in the price of real estate generally, * * * the value of the equity given in the statement" might have been the "honest judgment of the defendant and absolutely correct." Whether the figures in the books represented cost or equity was not disclosed by the accountant. This could easily have been ascertained from him under cross-examination without any reference whatever to the failure of the defendant to testify. We held, in the case of Linden v. United States, supra, that under the peculiar facts of that case the language of the court necessarily called attention to the failure of the defendant to testify, but in the case under consideration we do not think it did. When the entire statement of the prosecutor amounts merely to an argument that the evidence of the government is uncontradicted and unexplained, without necessarily calling attention to defendant's failure to testify, it is not ground for reversal. Carlisle v. United States, 194 F. 827, 114 Cow. C. A. 531; Rose v. United States, 227 F. 357, 363, 142 Cow. C. A. 53.
The judgment of the District Court is affirmed.
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IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-203-CR
THE STATE OF TEXAS,
APPELLANT
vs.
JASON MICHAEL NOLAN,
APPELLEE
NO. 3-90-204-CR
THE STATE OF TEXAS,
APPELLANT
vs.
SCOTT WAYNE HOLLAND,
APPELLEE
NO. 3-90-205-CR
THE STATE OF TEXAS,
APPELLANT
vs.
BILL ARON DUNCAN,
APPELLEE
NO. 3-90-206-CR
THE STATE OF TEXAS,
APPELLANT
vs.
DONOVAN DUNN,
APPELLEE
FROM THE COUNTY COURT OF LLANO COUNTY,
NOS. 9068, 9071, 9072, & 9073, HONORABLE J. HOWARD COLEMAN, JUDGE
PER CURIAM
The State appeals orders of the county court granting appellees' motions to suppress
evidence and to dismiss the prosecutions against them. Tex. Code Cr. P. Ann. art. 44.01 (Supp.
1991). The informations ordered dismissed accuse appellees of possessing less than two ounces
of marihuana.
Appellees were arrested after a bag of marihuana was found in the glove
compartment of an automobile in which they were traveling. In their motions to suppress,
appellees urged that the initial stop of the car and the subsequent search of the glove compartment
were violations of state and federal constitutional prohibitions against unreasonable searches and
seizures. Following a hearing, the motions to suppress were granted. Subsequently, appellees
filed motions to dismiss on the ground that the evidence remaining after the suppression order is
insufficient to support a conviction. These motions were also granted. The State gave timely
notice of appeal from the orders of the trial court.
On April 15, 1990, a Department of Public Safety trooper and three Llano County
sheriff's deputies set up a roadblock on Ranch Road 3404. One of the deputies was Curtis
Tisdale, the only witness to testify at the hearing on appellees' motions to suppress. According
to Tisdale, the roadblock was "a routine driver's license and insurance check" during which every
motor vehicle entering the checkpoint was stopped and an inquiry was made whether the driver
had an operator's license and proof of liability insurance. One of the cars stopped at the
roadblock was an Oldsmobile driven by appellee Bill Aron Duncan, and in which appellees Jason
Michael Nolan, Scott Wayne Holland, and Donovan Dunn were passengers. Tisdale testified that
the Oldsmobile was stopped solely for the purpose of checking for a driver's license and proof
of insurance.
Tisdale asked to see Duncan's driver's license, and Duncan complied. Tisdale then
asked to see proof of liability insurance. Duncan asked Holland, who was the front seat
passenger, to "Hand me the insurance out of the glove box." Tisdale described what then
happened:
A As I stated and explained a while ago, the driver asked the right front
passenger to hand him the insurance.
He placed his left hand upon the dash with his thumb in front of the glove
compartment door, unlocked it by his hand and allowed it to only open by a few
inches.
He had trouble getting his hand in there and he scrambled around in there
a little bit with his hand looking for it, and then he came out with it, and as soon
as his hand came out, he slammed it shut right quick.
Q How was he acting at that point?
A As if there was something in there he didn't want me to know about, and
being though as I was standing there and they had the rifle butt in the car and he
was acting that way, I felt that there was something in there such as a firearm.
That's what I had in my mind is that they had another firearm in there.
Q So you were concerned about a concealed weapon being in this glove
compartment?
A Yes.
Tisdale had previously testified that as he watched Holland retrieve the insurance form, he saw
through the window a wooden rifle stock in the back seat of the car. This weapon proved to be
a pellet rifle. Tisdale also testified that the occupants of the car appeared to be unusually nervous.
For "officer safety," Tisdale ordered appellees to exit the vehicle. Tisdale then
opened the glove compartment, in which he found not a weapon, but a small plastic bag of a
substance he believed was marihuana.
Standing
Although it did not raise this issue below, the State now argues in its first point of
error that appellees lack standing to contest either the stop of the vehicle or the search of the glove
compartment. That is, the State urges that appellees failed to demonstrate that the stop and search
infringed on their personal and legitimate expectations of privacy. Rakas v. Illinois, 439 U.S. 128
(1978); Chapa v. State, 729 S.W.2d 723, 727 (Tex. Cr. App. 1987).
In its most recent opinion speaking directly to the point, the Court of Criminal
Appeals held that the existence of a legitimate privacy interest is an element of the defendant's
constitutional claim which he has the burden of establishing, and that the absence of a challenge
to the defendant's standing by the State in the trial court does not preclude the State from raising
the issue on appeal. Wilson v. State, 692 S.W.2d 661, 669 (Tex. Cr. App. 1985) (opinion on
motion for rehearing). (1) Wilson, however, was an appeal by the defendant in which the point of
error challenged the overruling of a motion to suppress. The court in Wilson noted that a different
rationale might apply in appeals by the State from an order granting a motion to suppress. 692
S.W.2d at 667-68.
The State is not before this Court in its accustomed role as appellee. Instead, the
State is the appellant and bears the burden of demonstrating that the trial court committed
reversible error. As a general rule, appellate courts will not consider errors, even those of
constitutional magnitude, not called to the trial court's attention. Aylor v. State, 727 S.W.2d 727,
730 (Tex. App. 1987, pet. ref'd). To preserve a complaint for appellate review, a party must
have presented to the trial court a timely request, objection, or motion, stating the specific
grounds for the ruling he desired the court to make. Tex. R. App. P. Ann. 52(a) (Pamph. 1990).
Applying these rules to the causes before us, the State may not complain on appeal that appellees
lacked standing because the State did not present this contention to the trial court. The point of
error presents nothing for review.
We emphasize that this is not a case in which there is uncontradicted affirmative
evidence establishing, as a matter of law, that appellees' lack standing. Different considerations
would apply if, for example, there were undisputed evidence that the car had been stolen by
appellees, Jackson v. State, 745 S.W.2d 4, 8 (Tex. Cr. App. 1988), or if appellees, at the
hearing, had disclaimed any interest in or connection to the car. Jimenez v. State, 750 S.W.2d
798, 804 (Tex. App. 1988, pet. ref'd). See Sullivan v. State, 564 S.W.2d 698, 704 (Tex. Cr.
App. 1978) (opinion on rehearing).
The State's first point of error is overruled.
Search and Seizure
In its second point of error, the State urges that the trial court erred in concluding
that appellees were the victims of an unlawful search or seizure. In their motions to suppress,
appellees challenged two separate acts by the police: (1) the stop of the automobile and detention
of its occupants pursuant to the driver's license checkpoint; and (2) the subsequent search of the
glove compartment. At the conclusion of the hearing, the court stated that it was not suppressing
the evidence "on the constitution" but "on the probable cause of the search." We understand this
to mean that the trial court did not base its order on a finding that the initial stop was unlawful,
but on a finding that the officer was not authorized to search the glove compartment following the
stop. Because we find no reversible error in the trial court's ruling with respect to the search, we
do not address the State's contention that the checkpoint stop was lawful. We will merely assume
that the initial stop was lawful for the purposes of this opinion.
Having lawfully detained a suspect for the purpose of investigation, an officer may
conduct a limited search for weapons where it is reasonably warranted for his safety or the safety
of others. Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme Court stressed the
investigating officer's need to protect himself in such circumstances:
[W]here a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where
in the course of investigating this behavior he identifies himself as a policeman and
makes reasonable inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others' safety, he is entitled for
the protection of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to discover weapons
which might be used to assault him.
392 U.S. at 30-31.
Where officers have temporarily detained the driver of an automobile under Terry,
they may search those parts of the passenger compartment where a weapon may be hidden, if the
officers have a reasonable belief that the detainee is dangerous and may gain access to a weapon.
Michigan v. Long, supra. The Supreme Court stated:
Our past cases indicate then that protection of police and others can justify
protective searches when police have a reasonable belief that the suspect poses a
danger, that roadside encounters between police and suspects are especially
hazardous, and that danger may arise from the possible presence of weapons in the
area surrounding a suspect. These principles compel our conclusion that the search
of the passenger compartment of an automobile, limited to those areas in which a
weapon may be placed or hidden, is permissible if the police officer possessed a
reasonable belief based on "specific and articulable facts which, taken together
with the rational inferences from those facts, reasonably warrant" the officer in
believing that the suspect is dangerous and the suspect may gain immediate control
of weapons. See Terry, 392 U.S. at 21. "[T]he issue is whether a reasonably
prudent man in the circumstances would be warranted in the belief that his safety
or that of others was in danger." Id., at 27. If a suspect is "dangerous," he is no
less dangerous simply because he is not arrested. If, while conducting a legitimate
Terry search of the interior of the automobile, the officer should, as here, discover
contraband other than weapons, he clearly cannot be required to ignore the
contraband, and the Fourth Amendment does not require its suppression in such
circumstances.
463 U.S. at 1049-50 (footnote omitted).
In the causes before us, the police did not stop and detain appellees based on any
reasonable suspicion that they were engaged in criminal activity. To the contrary, the stop of
appellees at the checkpoint was a "suspicionless seizure" for the limited purpose of enforcing the
driver's licensing and mandatory liability insurance laws. Higbie v. State, 780 S.W.2d 228, 236-37 (Tex. Cr. App. 1989). Moreover, Tisdale undertook what he described as his protective
search for weapons only after he had determined that Duncan had a valid driver's license and
proof of liability insurance. Further, Tisdale never testified that he believed that appellees were
dangerous.
We do not hold that a Long-type weapons search can never be justified following
a stop at a license checkpoint. However, the conduct of such searches must be carefully
circumscribed if a license checkpoint is not to become an excuse for general searches of the
vehicles stopped. Meeks v. State, 692 S.W.2d 504, 508 (Tex. Cr. App. 1985).
At a hearing on a motion to suppress evidence, the trial court is the sole judge of
the credibility of the witnesses and the weight to be given their testimony, and an appellate court
must defer to the trial court's findings of fact absent a clear abuse of discretion. State v. Carr,
774 S.W.2d 379 (Tex. App. 1989, no pet.). In the causes before us, the trial court has not been
shown to have abused its discretion by concluding that the officer did not have a reasonable basis
for believing that a search of the glove compartment of appellee's vehicle was required for his
safety or the safety of others. No other lawful basis for the warrantless search is urged by the
State or suggested by the evidence. We affirm the order of the county court granting appellees'
motions to suppress.
Dismissal of Prosecutions
The county court was not authorized to dismiss these causes on appellees' motions.
State v. Shelton, 802 S.W.2d 80 (Tex. App. 1990, pet. filed); State v. Gray, 801 S.W.2d 10
(Tex. App. 1990, no pet.). While the county court's orders suppressing evidence may have the
practical effect of making convictions in these causes impossible, it is for the prosecutor, as the
officer charged with the responsibility for preparing and prosecuting criminal suits, to decide
whether a prosecution is sustainable. The situation is analogous to that presented when an
appellate court reverses a conviction because a motion to suppress evidence should have been
granted. See Collins v. State, 602 S.W.2d 537 (Tex. Cr. App. 1980).
The orders granting appellees' motions to suppress evidence are affirmed. The
orders granting appellees' motions to dismiss are reversed and the causes are remanded to the
county court.
[Before Chief Justice Carroll, Justices Jones and Smith]
Affirmed in part; reversed and remanded in part
Filed: April 10, 1991
[Publish]
1. Wilson was the last in a series of opinions in which the Court of Criminal Appeals endeavored
to answer the question whether the State could raise standing for the first time on appeal, never
reaching the same answer twice. See Maldonado v. State, 528 S.W.2d 234 (Tex. Cr. App. 1975);
Sullivan v. State, 564 S.W.2d 698, 704 (Tex. Cr. App. 1978) (opinion on rehearing). See also
Hernandez v. State, 762 S.W.2d 578 (Tex. Cr. App. 1988) (opinion dissenting to refusal of
discretionary review). More recently, the court has hinted that its opinion on this question may
change once again. See Goodwin v. State, 799 S.W.2d 719, 725 (Tex. Cr. App. 1990); Russell
v. State, 717 S.W.2d 7, 9 fn. 6 (Tex. Cr. App. 1986). None of the cases were appeals by the
State from orders suppressing evidence.
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596 S.W.2d 277 (1980)
Arnold QUINTERO, Appellant,
v.
CITIZENS AND SOUTHERN FACTORS, INC., Meinhard-Commercial Corporation, and Rawleigh, Moses & Company, Inc., Appellees.
No. 17568.
Court of Civil Appeals of Texas, Houston (1st Dist.).
February 28, 1980.
*278 Stuart Haynsworth, Houston, for appellant.
Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellees.
Before PEDEN, EVANS and WARREN, JJ.
EVANS, Justice.
This is an appeal from judgments entered in three separate actions on sworn account which were consolidated for purposes of trial. The plaintiffs in each action were creditors of one of the defendants, Fred Guzman, allegedly doing business as Texas Furniture Unclaimed Freight. The other defendants were two brothers, Arnold and Fred Quintero. Based on jury findings that the debts were due and that a partnership existed between Guzman and the Quintero brothers, the trial court entered a judgment *279 in each of the three cases, awarding the plaintiffs money damages and attorney's fees against all three defendants.
Arnold Quintero has alone perfected an appeal. During the pending of this appeal, an amended appeal bond has been filed with this court, showing the name of Fred Quintero as an additional principal appellant, but the amended bond was not filed until after time had expired for perfection of an appeal. Therefore, this court lacks jurisdiction over the attempted appeal of Fred Quintero, and the appeal will be considered only as to the defendant Arnold Quintero.
In his first four points of error Arnold Quintero complains that the trial court erred in overruling his motion for judgment non obstante veredicto, challenging the legal sufficiency of the evidence to support the jury's finding that Fred Guzman was not acting as sole proprietor of Texas Furniture Unclaimed Freight and that the Quinteros were partners in and owners of the business at the time the debts were incurred. The record before this court does not reflect that Quintero's motion for judgment non obstante veredicto was presented to and ruled upon by the court, and under this state of the record, there is no action of the trial court before this court for review. Home Ins. Co. of New York v. Dacus, 239 S.W.2d 182 (Tex.Civ.App.Texarkana 1951, no writ); Commercial Standard Insurance Company v. Southern Farm Bureau Casualty Insurance Company, 509 S.W.2d 387 (Tex.Civ.App.Corpus Christi 1974, writ ref'd n. r. e.). However, even if it be assumed that the trial court considered and overruled Quintero's motion for judgment non obstante veredicto, these points must be denied because there is legally sufficient evidence to support the jury's verdict.
In 1973 Fred Guzman, a salesman for a retail furniture company going out of business, was contacted by Arnold and Fred Quintero with respect to the operation of a retail furniture store under a new arrangement. As a result of negotiations between these parties, Guzman obtained a new lease on the retail furniture store premises, and a "Factoring and Security Interest Agreement" was executed by Fred Guzman and Fred Quintero. Under this agreement Guzman was to operate Texas Furniture Unclaimed Freight and Fred Quintero was to assist in financing inventory purchased from designated wholesale companies. The agreement specified that Quintero's role would be in the nature of a "factor" and that he would be secured by appropriate liens against all of the inventory. Quintero was to have free access to the business premises, including the right to inspect all records, and was to be furnished with periodic accountings. The agreement further stipulated that Quintero was to receive 4% of the "net sales of this enterprize," payable on a monthly basis, and 1% of the invoice value of all merchandise not paid for by Guzman within thirty days of billing. It was also specified that the agreement would continue in effect until mutually terminated, and if terminated within the first year of operation, Guzman was to pay Quintero $5,000; if during the second year of operation an additional $5,000, and so on until a limit of $25,000 had been reached. The agreement stipulated the parties intended to create a security interest "in the merchandise advanced or paid for" by Quintero and supplied by Guzman. Upon termination, Quintero was to have immediate right to possession or full payment for all merchandise advanced or paid for "by him," under the agreement. A security statement was filed by Fred Quintero with the Secretary of State, reflecting a lien on the furniture inventory of Texas Furniture Unclaimed Freight, and this statement was on file when the sales in question were made.
Soon after starting up this new business, Fred Guzman began to handle merchandise furnished by suppliers other than Quintero, and in the months of April, May and June 1974, the plaintiffs or their assignors sold merchandise to the business on open account. In June and July 1974 the business began to have each flow problems and Arnold Quintero started shipping large, *280 unordered quantities of furniture to Guzman. On Guzman's questioning as to the purpose of these shipments, he was advised by Quintero that this was being done in order to increase sales through the expansion of their volume of inventory. However, the volume of sales did not substantially increase, and the business continued to face severe financial problems. In September 1974 Arnold Quintero went to the store and advised Guzman that they were going to incorporate and that Guzman would have to sign incorporation papers. Under the purposed incorporation arrangement, Quintero was not going to pay anything for the assets of the store, but he would own one hundred percent of the stock of the corporation. Although Guzman signed the papers, the incorporation was never effected.
In October 1974 Guzman found out that the owners of the building premises were selling the property and that it would be impossible for him to get an extension of the lease. When he advised Arnold Quintero of this circumstance, Quintero told him: "I am foreclosing on you." Arnold Quintero then took possession of all furniture in the store and all accounts receivable, applying the value thereof as a credit against the amounts owed by Guzman under the agreement. No further business was thereafter conducted by Guzman.
The jury failed to find that Guzman had conducted the business as a sole proprietorship or as the Quinteros' agent or employee. It did find that both Fred and Arnold Quintero were partners in and owners of the business at all material times.
In determining whether there is legally sufficient evidence to support the jury's findings, this court must consider only the evidence and inferences therefrom which tend to support such findings and must disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). If there is any probative evidence which supports the jury's findings, the points of error must be overruled.
Guzman testified that he had invested about $6,000 in the business and had spent many hours of his own labor in the endeavor. Arnold Quintero had invested money in the financing of the business inventory and had used his skill, knowledge and experience in the furniture business to assist Guzman in making the venture a profitable operation. Quintero advised Guzman what, when, how much and from whom he should purchase goods not supplied by Quintero, and under the terms of their arrangement, Quintero was to receive four percent of the net sales price of all merchandise sold through the business, not just a percentage of the merchandise which he, Quintero, supplied. The parties also agreed that if Guzman decided to terminate the agreement, he had to make a substantial payment of money to Quintero, the amount of such payment being determined by the length of time the business had been in operation.
The jury was instructed that the term "partnership" as used in the special issues, meant:
"A combination of two or more parties of their capital, labor or skill for the purpose of a business of the parties for their common benefit. The intention to form a partnership may be expressed or implied from the circumstances surrounding the particular transaction."
Quintero did not object to this definition and any complaint with respect to the form of the instruction must be deemed waived. Yellow Cab and Baggage Company v. Green, 154 Tex. 330, 277 S.W.2d 92 (1955); Rule 274, Tex.R.Civ.P. The jury could have concluded from all the circumstances surrounding the transaction that Guzman and the Quinteros had intended to form a partnership and, in furtherance of that purpose, had combined their capital, labor or skill for the purpose of establishing a business to their common benefit.
In his points of error six through eight, Quintero complains of the trial court's action in rendering judgment based upon the jury's findings that he and his brother, Fred Quintero, were partners and co-owners with Fred Guzman in the retail furniture business. *281 These points of error, complaining that the trial court erred in rendering judgment on the verdict because of the state of the evidence, must be considered "no evidence" points. Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970). For the reasons stated with respect to the first four points of error, these points will be overruled.
In his ninth point of error Quintero contends that the trial court erred in admitting parol evidence of the alleged partnership because such evidence contradicted and varied the terms of the written "Factoring and Security Interest Agreement." Neither the plaintiffs nor defendant, Arnold Quintero were parties to the written agreement, and under the circumstances of this case, parol evidence was admissible on behalf of the plaintiffs to show that a partnership existed between Guzman and the Quintero brothers. Williford Lumber Co. v. Malakoff Brick Co., 113 S.W.2d 248 (Tex. Civ.App.Dallas 1938, writ dism'd); McCormick and Ray, Texas Law of Evidence, Vol. 2, § 1621, p. 474 (2nd ed. 1956). Furthermore, Quintero's brief does not point out the specific parol testimony complained of nor does it show that any objection thereto was brought to the attention of the trial court. Rule 418(e) Tex.R.Civ.P.
In his tenth point of error Quintero contends that the trial court erred in admitting, over objection, evidence concerning the parties, negotiations with respect to the proposed incorporation. Under this point he argues that the testimony indicating the parties' intent to incorporate improperly influenced the jury to believe that the parties owned some existing interest in the business.
The testimony regarding the negotiations to incorporate was adduced through a witness called by the defendant, Fred Guzman, whose counsel stated that such evidence was being offered for the purpose of showing the degree of control which the Quinteros had over Mr. Guzman and to prove that he acted only as an agent and not as an owner of the business. The record reflects that other testimony regarding the proposed incorporation was admitted in evidence without objection throughout the trial, and the error complained of, if any, must, therefore, be deemed waived. Rule 418(e), Tex.R.Civ.P.; City of Rockwall v. Mitchell, 497 S.W.2d 378 (Tex.Civ.App. Waco 1973, writ ref. n. r. e.).
In his eleventh point of error Quintero contends that the trial court erred in making a comment on the evidence which, in effect, instructed the jury that Arnold Quintero was a partner with Fred Guzman. The trial court's remark in question is reflected by emphasis in the following excerpt from the testimony of Arnold Quintero:
Q. Was Mr. Guzman ever an employee of yours or any business that you had ownership in?
A. No, sir. He was strictly a Texas Giant man, and then he was in business for himself.
Q. Was Mr. Guzman, as you understand it, a partner of yours?
A. No, sir.
Q. Do you know what a partnership is?
A. Definitely.
Q. Would you tell the jury what you think a partnership is?
MR. PETERSEN: Objection to that, Your Honor. That is a matter of law. The Court will instruct the jury what the law is and not what this man thinks.
MR. HAYNSWORTH: Your Honor, the Plaintiff has alleged that Mr. Quintero was engaged in a partnership agreement with Mr. Guzman. Now, if they know what a partnership is, I would like to know if Mr. Quintero was in such a relation.
MR. PETERSEN: Your Honor, we pled that by his acts and his conduct he was a partner. There is no declared partnership. We will agree to that, but by his acts and conduct, he was a partner in this operation.
THE COURT: Overrule the objection. This man knows what a corporation is, and a sole proprietorship, and he knows *282 what a partnership is and that is how he has been operating. I am going to let him answer the question. He has testified to all three factors since he has been on the stand.
Q. (By Mr. Haynsworth) Would you tell the jury what you think a partnership operation would have been?
A. Yes, sir. In order to have a true partnership, you have to have articles of partnership. They have to be filed, where the liability of each partner
MR. HAYNSWORTH: Let me interrupt you just a minute. Everybody has admitted that you did not have articles of partnership, but you can still have a partnership that you hold yourself out as a partner. Explain your relationship with Mr. Guzman and tell the jury if this was a partnership.
THE WITNESS: My relationship with Mr. Guzman is a thing that I have relationships with others. I am an investor, and I am Vice Chairman of the American National Bank. I invest money with people. I help people set up businesses, and never would I ever go into partnership with anyone. Partnership gives you a completer exposure to liability of the man's obligations, and I am too smart to get into these kind of operations.
Q. (By Mr. Haynsworth) Well, if you had a partnership with Mr. Guzman, his financial obligations could conceivably be yours?
A. That is correct. And my net worth prohibits me from getting involved with anyone in a partnership.
Q. Now, don't tell the jury you are wealthy.
A. Well, for me to go into a partnership, I would have to lose my complete thinking, in other words.
Q. In other words, you, when you entered into this agreement, with Mr. Guzman, it would not have been conceivable for you to enter into anything that would amount to a partnership?
A. That is correct. There was no intent. I never intended that.
Q. Would you consider that Mr. Guzman could have been agent of yours?
A. No, sir.
Q. Do you understand what an agent is?
A. That is correct.
The trial court's statement that Mr. Guzman knew "what a partnership is and that is how he has been operating" was clearly improper when considered alone as a comment on the state of the evidence. However, in the context of the proceedings at the time the statement was made, it appears rather obvious that the trial court was merely stating his understanding of Mr. Quintero's prior testimony, indicating by his remark that Mr. Quintero had shown sufficient basis for stating his conclusion regarding whether Guzman's business was a corporation, a sole proprietorship, or a partnership.
An objection to a comment by the trial judge on the weight of the evidence must generally be made at the time of the occurrence if the error is to be preserved for appellate review, unless the comment is of such a nature that it could not be rendered harmless by proper instruction. State v. A. E. Wilemon, 393 S.W.2d 816 (Tex.1965). If the matter in question had been called to the attention of the trial judge, he could have clarified the purport of his comment by explaining his remark to the jury or he could have given an appropriate instruction to the jury that it should completely disregard his remark. Since no objection was made, the error complained of must be deemed waived. Texas Employers' Insurance Association v. Garza, 557 S.W.2d 843 (Tex.Civ.App.Corpus Christi 1977, writ ref'd n. r. e.); Short v. Short, 468 S.W.2d 164 (Tex.Civ.App.Tyler 1971, writ ref'd. n. r. e.).
The trial court's judgments are affirmed.
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596 S.W.2d 139 (1980)
Tillman Pat HOFFPAUIR, Appellant,
v.
The STATE of Texas, Appellee.
No. 58707.
Court of Criminal Appeals of Texas, Panel No. 2.
April 2, 1980.
*140 Wayne Peveto, Orange, for appellant.
Jim Sharon Bearden, County Atty. and Patrick A. Clark, Asst. County Atty., Orange, Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, ROBERTS and CLINTON, JJ.
OPINION
CLINTON, Judge.
Indicted for the offense of murder, appellant was convicted of the offense of voluntary manslaughter and the jury assessed punishment at confinement in the Texas Department of Corrections for a term of five years notwithstanding appellant's sworn motion for probation.
Though appellant presents some sixteen grounds of error for our consideration, we need not reach each of these contentions. In his second ground of error, appellant advances the contention that the trial court erred in overruling his timely request for a copy of the grand jury testimony of witness Tillman Pat Hoffpauir, Jr., after the State had cross examined him from it in the presence of the jury. We agree and now reverse the judgment below.
Briefly stated, the record reflects that appellant shot and killed one Gerald Lacy on the evening of August 10, 1976 as Lacy opened the front door of the trailer where he was staying with his wife. Mrs. Lacy had previously been married to appellant and, after being married to the deceased for just a period of a few weeks, had filed for divorce from him. There was considerable testimony, primarily from Mrs. Lacy, that the deceased was an extremely cruel individual who had compelled her to marry him; had threatened to kill appellant and the children of his marriage to her as well as herself. The deceased earlier had even "kidnapped" his wife at gunpoint and forced her to accompany him to Louisiana. Additionally, there was ample testimony from which the jury could and very well did believe that the deceased was a heavy drinker whose disposition worsened as his consumption of alcoholic beverages increased, which was frequent.
Appellant raised the defensive issues of temporary insanity and self defense and in support of these theories, called, among others, his son, Tillman Pat Hoffpauir, Jr., as a witness. The witness testified that the first time he met the deceased, he formed the opinion that the deceased was intoxicated and heard him brag about how the pills he had in his possession "would keep you going." Their next encounter was when he was awakened by his mother and asked if he would accompany her to pick up the deceased in Bridge City inasmuch as he was drunk and there was some concern that he might be "picked up" by the police.
On cross examination, however, the following colloquy occurred:
Q: [By the prosecutor]: Tillman what kind of guy was Gerald when he was sober?
A: I don't recall ever meeting him when he was sober.
Q: Do you recall your grand jury testimony?[1]
A: No, sir.
At this juncture, defense counsel objected to any further cross examination of the witness regarding his grand jury testimony unless the defense was provided a copy of same. The trial court denied this request and the cross examination continued:
*141 Q: My question to you was, how was Gerald when he was sober. On page 34, line 17, this is you talking, "Question: When he was sober, he was a pretty good guy? Answer: He was a very good natured guy when he was sober, but he was just a sly character and couldn't control his emotions when he got drunk." Do you remember that?
A: I don't believe I worded it that [sic].
Q: Well, this little lady took down what you said, and that it what you said.[2]
At the close of this cross examination, defense counsel renewed his request to be furnished with a copy of the grand jury testimony of the witness because the prosecutor had cross examined the witness from it in the presence of the jury; the trial court again denied this request. Defense counsel then asked the trial court to read the witness's grand jury testimony to see if there were any other "inconsistent statements" and, if so, to furnish him with a copy of the testimony. Though this request was refused, the trial court did agree to make the grand jury testimony part of the appellate record for our consideration. On redirect, defense counsel asked the witness just one question:
Q: Now, Tillman, were you ever around Gerald Lacy when he was sober, or not under the influence of any type of drug?
A: No, sir, I don't believe I ever have.
The trial court, after conducting an in camera inspection of the witness's grand jury testimony denied the defense request to be furnished with a copy of same and ordered it sealed as part of this record.
Turning to appellant's contention, it is well settled that the "use before the jury" rule entitles the defendant to inspect, upon timely request, any document, instrument or statement which has been used by the State before the jury in such a way that its contents become an issue. Mendoza v. State, 552 S.W.2d 444, 449 (Tex.Cr.App. 1977); Haywood v. State, 507 S.W.2d 756 (Tex.Cr.App.1974); Howard v. State, 505 S.W.2d 306 (Tex.Cr.App.1974). This Court has held that the definition of "use before the jury" includes showing a document to a witness who is on the stand, permitting a witness to identify a document, or reading portions of a document aloud to a jury. Mendoza v. State, supra. But counsel for the State must in some way inform the witness that the document or statement is being referred to during the examination. Rose v. State, 427 S.W.2d 609 (Tex.Cr.App. 1968).
In the instant case, it is clear that the requisites of the "use before the jury" rule were met. Initially, there can be no question but that the State made use of the witness's grand jury testimony at trial. The prosecutor definitely let the witness know that he was referring to the grand jury testimony of the witnessthe test of Rose v. State, supra at 611, in explicating Sewell v. State, 367 S.W.2d 349, 351 (Tex. Cr.App.1963). However, in citing Sewell, supra, and White v. State, 478 S.W.2d 506 (Tex.Cr.App.1972), the State contends that the contents of the grand jury testimony did not become an issue. We do not agree. As soon as the prosecutor asked the witness if he recalled his grand jury testimony, it became evident that the prosecutor believed he was laying a predicate for impeaching the witness before the jury with a prior inconsistent statement. After the witness stated that he did not recall his grand jury testimony, the prosecutor took his second step down the impeachment path by pointing out to the witnessgiving page and line numberhis prior testimony which he then purportedly read verbatim from the transcript. When the witness demurred by stating that he did not think he worded it that way, the prosecutor proclaimed that the court reporter "took down what [he] said, and that is what [he] said." The prosecutor's efforts had come full circle and the *142 witness had been imperfectly impeached with a prior inconsistent statement.[3]
In White v. State, supra, while the prosecutor did look at some papers in questioning a defense witness he did not do so "in such a manner as the contents of the document became an issue" because he did not direct attention to the paper, did not exhibit or read aloud from it nor make any reference to indicate to the jury that it was being used as the basis for his interrogation. Here all of that was done and, further, the witness neither recalled his prior testimony nor agreed with what was read to him, the effect of which was that he had seen deceased when he was sober. Thus the responses of the witness to those questions made the contents of his grand jury testimony an issue.
Walton v. State, 386 S.W.2d 805 (Tex.Cr. App.1965) sheds more than a minimal amount of light on the instant proceeding. In Walton, the prosecutor cross examined a defense witness in the presence of the jury from a prior sworn statement. Additionally, the prosecutor, still in the presence of the jury, read certain portions of the prior statement and asked the witness if in fact he had made such statements. Certain portions of the statement differed materially from some of the testimony he had already given before the jury and the witness further denied making certain other portions of the statement which were read to him by the prosecutor before the jury. The sworn statement was not introduced into evidence and the defendant's timely request for a copy of the statement was denied by the trial court. Citing Sewell v. State, 367 S.W.2d 349 (Tex.Cr.App.1963) this Court stated:
"Reversal will result, however, without any showing of injury for denial of the defendant's timely request or demand that he be permitted to inspect any document, instrument or statement which is used in some way before the jury by which its contents becomes an issue such as . . . exhibit[ing] or read[ing] from or us[ing] [it] to question the witness in the jury's presence."
Walton v. State, supra at 806 (citations omitted).
Appellant, consonant with Sewell and Walton and their progeny, need not demonstrate that he suffered any injury from the trial court's denial of his request to be furnished with a copy of the witness's grand jury testimony. The trial court, therefore, erred in denying appellant's timely request for a copy of the witness's grand jury testimony. Walton v. State, supra.
For the error pointed out, the judgment is reversed and the cause remanded.
NOTES
[1] All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
[2] The record reflects that the witness did not respond to the prosecutor's assertion that "that is what you said," as the prosecutor merely asked another unrelated question after making said assertion.
[3] The impeachment was imperfect because the transcript of testimony before the grand jury was not authenticated, predicated, offered and admitted as an exhibit. The content of such a transcript is not proven by the assertion of counsel that "that is what you said," unless, of course, the witness confirms that he did so. Here, however, the prosecutor rhetorically asked "Okay?" and moved on to another matter; the jury no doubt concluded that the prior inconsistent statement had been made by the witness in his grand jury testimony.
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8 F.2d 439 (1925)
CONTINENTAL INS. CO. et al.
v.
SIMPSON.
No. 2347.
Circuit Court of Appeals, Fourth Circuit.
October 20, 1925.
*440 Richard H. Mann, of Petersburg, Va., for plaintiffs in error and cross-defendants in error.
Brockenbrough Lamb and Hill Montague, both of Richmond, Va., for defendant in error and cross-plaintiff in error.
Before WOODS, WADDILL and ROSE, Circuit Judges.
ROSE, Circuit Judge.
When the houses of the plaintiff, Minnie S. Simpson, were burned on October 18, 1923, two policies of insurance were outstanding thereon; the first in the National Liberty Insurance Company, dated April 7, 1923, for $7,180, and the second in the Continental Company, dated May 15, 1923, for $7,500. Mrs. Simpson sued on both policies and the actions were consolidated and tried together.
Attached to each policy was a rider making the insurance payable to C. L. Denoon, trustee, as his interest might appear. The interest of Denoon was as holder of a deed of trust to secure a note for $9,000 payable to W. F. Richardson, Jr. The policy in the National Liberty Insurance Company was in the actual possession of Denoon, trustee. Each policy contained the usual provision that "this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not, on property covered in whole or in part by this policy."
There was evidence that before the fire the resident Richmond agents of each company authorized to countersign and issue policies knew of the fact that both policies were outstanding and took no steps to cancel. But no agreement was indorsed on either policy or added to it permitting other insurance. Therefore the District Court correctly held that, if the above-quoted clause of the policies was to have full effect according to its plain language, each policy was annulled by the other, notwithstanding the knowledge of the resident agents. New York Life Insurance Co. v. Fletcher, 117 U.S. 519, 531, 6 S. Ct. 837, 29 L. Ed. 934; Northern Assurance Co. v. Grand View Building Ass'n, 183 U.S. 308, 22 S. Ct. 133, 46 L. Ed. 213; Lumber Underwriters of New York v. Rife, 237 U.S. 605, 35 S. Ct. 717, 59 L. Ed. 1140; Fidelity-Phenix, etc., Co. v. Queen City Bus, etc., Co. (C. C. A. Fourth Circuit) 3 F.(2d) 784.
The plaintiff contended that the clause could have only the limited effect provided by section 4227 of the Code of Virginia of 1919; namely, that the violation of the condition as to other insurance could not defeat recovery on either policy unless it contributed to the loss. The court held that section 4227 had been repealed, and that therefore, as between the plaintiff and the defendant companies, the policies were of no effect.
It was conceded that the rights of the holder of the deed of trust were not affected by the double insurance. The riders attached for his benefit contained this provision:
"Whenever this company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owners, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee (or trustee) the whole principal due or to grow due on the mortgage with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of his claim."
After the fire, under this provision the insurance companies jointly paid the note of *441 Mrs. Simpson to Richardson, secured by the deed of trust, and took an assignment thereof.
A verdict for the defendant was returned by direction of the court. But the court adjudged, as a condition of entry of the judgment on the verdict in favor of defendants, that they should cancel and surrender the note of the plaintiff secured by the deed of trust. The case is here on cross-writs of error.
The District Court erred in imposing on the defendants the condition of cancellation of the note. Whether valid or not as to the owner of the property, the policies were conceded to be valid as to the holder of the note secured by the deed of trust. They conferred on the insurers the benefit of subrogation to the rights of the lien creditor, and therefore the insurers are entitled to hold the note and to have the benefit of the security of the deed of trust.
From this statement of the case it is evident that the District Judge was right in directing a verdict for the defendant insurers, unless the condition against double insurance fell under a Virginia statute providing that violation of such a condition should not have the effect of preventing a recovery when the violation did not contribute to the loss.
The following section of the Virginia Code of 1919, approved March 7, 1918, effective January 13, 1920, is the statute relied on by the plaintiff:
"No condition in, or indorsed on, any policy of insurance, nor any restrictive provision thereof, shall be valid unless such condition or restrictive provision is printed in type as large as brevier, or eight-point type, or is written in pen and ink or typewriter, in or on the policy, and no provision in any policy of insurance limiting the time within which a suit or action may be brought to less than one year after loss shall be valid, nor shall failure to perform any condition of such policy, nor a violation of any restrictive provision thereof, be a valid defense to an action thereon, unless such failure or violation contributed to the loss sustained.
The previous statute dealt with the size of type and the limitation of actions on insurance policies. Acts of 1912, p. 547; section 3252, Code of 1887. But the words we have italicized expressed the first enactment relating to the necessity of showing as a defense that violation of a condition of a policy contributed to the loss.
This enactment was in force at the date of the policies and the time of the trial, unless the following statute of March 16, 1918 (Acts 1918, c. 362), repealed it by implication:
"An act prescribing the style of type in which conditions and restrictive provisions of insurance policies shall be printed, and to define the time in respect to which insurers may limit the right to institute suit or action upon such policies, and regulate the filing of proof of loss.
"Approved March 16, 1918.
"1. Be it enacted by the General Assembly of Virginia, that no condition in or indorsed on any policy of insurance, nor any restrictive provision thereof, shall be valid unless such condition or restrictive provision is printed in type as large as brevier or eight-point type, or is written in pen and ink, or typewritten in or on such policy; provided, however, that nothing herein contained shall relate to or affect photographic copies of application, or parts thereof, attached to or made parts of policies of insurance.
"2. No provision in any policy of insurance limiting the time within which a suit or action may be brought to less than one year after loss shall be valid.
"3. That where the policy of insurance requires the proof of loss to be filed within a specified time, all time consumed in an effort to adjust the loss is not to be considered as a part of such time."
Section 6568 of the Code of 1919 provided:
"The enactment of this Code shall not affect any act passed by the General Assembly, which shall have become a law after the ninth day of January, nineteen hundred and eighteen, and before the thirteenth day of January, nineteen hundred and twenty; but every such act shall have full effect, and so far as the same varies from or conflicts with any provision contained in this Code, it shall have effect as a subsequent act, and as repealing any part of this Code inconsistent therewith."
There is no express repeal of section 4227 of the Code, for in the act of 1918 there is no reference to section 4227 and no general repealing clause. The case then turns upon the difficult inquiry, Did the Acts of 1918 (Acts of 1918, p. 539) repeal by implication the provision of section 4227 of the Code of 1919 above italicized, providing "nor shall failure to perform any condition of such policy, nor a violation of any restrictive provision thereof, be a valid defense to an action thereon, unless such failure or violation contributed to the loss sustained"?
There is no difference in the courts as to the law. Repeals by implication are not *442 favored. The Legislature is presumed to legislate with knowledge of former related statutes, and to express its intention to repeal them. Repeal will be implied only when necessary, because the last or dominant statute admits of no other reasonable construction.
"The repugnancy between the later act upon the same subject and the former legislation must be such that the first act cannot stand and be capable of execution consistently with the terms of the later enactment." Lewis v. U. S., 244 U.S. 134, 144, 37 S. Ct. 570, 574 (61 L. Ed. 1039).
"When there are two acts on the same subject, the rule is to give effect to both if possible; but, if the two are repugnant in any of their provisions, the latter act without any repealing clause operates, to the extent of the repugnancy, as a repeal of the first." Henrietta Mining & Milling Co. v. Gardner, 173 U.S. 123, 124, 19 S. Ct. 327, 329 (43 L. Ed. 637); U. S. v. Greathouse, 166 U.S. 601, 17 S. Ct. 701, 41 L. Ed. 1130; Petri v. Creelman Lumber Co., 199 U.S. 487, 497, 26 S. Ct. 133, 50 L. Ed. 281; Lewis v. United States, 244 U.S. 144, 37 S. Ct. 570, 61 L. Ed. 1039; Lambert v. Barrett, 115 Va. 136, 78 S.E. 586, Ann. Cas. 1914D, 1226; 25 Rawle C. L. p. 918, and citations.
"It is a well-settled rule in the construction of statutes, often affirmed and applied by this court, that, `even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.' United States v. Tynen, 11 Wall. 88, 92 [20 L. Ed. 153]; King v. Cornell, 106 U.S. 395, 396 [1 S. Ct. 312, 27 L. Ed. 60]; Tracy v. Tuffly, 134 U.S. 206, 223 [10 S. Ct. 527, 33 L. Ed. 879]; Fisk v. Henarie, 142 U.S. 459, 468 [12 S. Ct. 207, 35 L. Ed. 1080]; District of Columbia v. Hutton, 143 U.S. 18, 27 [12 S. Ct. 369, 36 L. Ed. 60]; United States v. Healey, 160 U.S. 136, 147 [16 S. Ct. 247, 40 L. Ed. 369]." The Paquete Habana, 175 U.S. 677, 684, 685, 20 S. Ct. 290, 294 (44 L. Ed. 320); Murphy v. Utter, 186 U.S. 95, 106, 22 S. Ct. 776, 46 L. Ed. 1070; Combined Saw, etc., Co. v. Flournoy, 88 Va. 1029, 14 S.E. 976; Vansant Co. v. Com., 108 Va. 135, 60 S.E. 753.
"It is * * * necessary to the implication of a repeal that the objects of the two statutes are the same, in the absence of any repealing clause. If they are not, both statutes will stand, though they may refer to the same subject." United States v. Claflin, 97 U.S. 546, 552 (24 L. Ed. 1082); United States v. Yuginovich et al., 256 U.S. 450, 463, 41 S. Ct. 551, 65 L. Ed. 1043; Chase, Jr., v. United States, 256 U.S. 1, 41 S. Ct. 417, 65 L. Ed. 801; Baltimore & Ohio R. Co. v. Bates, 119 U.S. 464, 7 S. Ct. 285, 30 L. Ed. 436.
The argument is strongly presented that the act of 1918, though not in express terms repugnant to section 4227 of the Code of 1919, yet covers the whole subject of that section and embraces new provisions, and thus shows it was intended as a substitute for section 4227. In support of this position, defendants' counsel relied strongly on Combined Saw, etc., Co. v. Flournoy and Vansant Co. v. Com., above cited. In both these cases the statutes in question were held to be repealed by implication. But in both the Legislature first amended the original statute and then at a different time again amended and re-enacted it, omitting the first amendment. The rule is well established, and the reason for it plain, that the first amendment of a statute is repealed when the statute referred to is again amended and wholly reenacted with the omission of the first amendment. Note 88 Am. St. Rep. 281.
In view of the closeness and the difficulty of the question, we have been at pains to examine the legislative history of the act which is said to have worked a repeal. When it was introduced into the Senate, and when it was reported by the committee, it contained no reference to proofs of loss. Senate Journal, p. 223. On its passage through that body, and after its second reading, it was reconsidered and amended by adding "and regulate the filing of proof of loss," to the title and making the provision concerning such proof now found in it. There is nothing to show that the Legislature had under consideration a requirement that the violation of conditions or a restriction must have contributed to the loss if it was to be available as a defense.
The method of printing policies, the time for bringing an action prescribed by them, and the provisions as to the proofs of loss, are very distinct and much less important than the provision that the actual violation of a condition or restriction should not be available unless it contributed to the loss. Indeed the last is so distinct that it might well have been embraced in a separate act, although in point of fact the revisors of the Code did place it in the same section with the others and indeed included it in the same sentence. The revisors in their annotation to section 4227 expressed the opinion that that *443 section was repealed by the act of 1918. Their opinion is entitled to great weight as that of three intelligent students of the subject, one of them now a distinguished judge of the Supreme Court of Appeals of the state. The presumption is that they gave more careful consideration to the Code and to the statutes bearing on it than has any one else.
Hardly any two cases involving the question of appeal by implication are alike. After all, the test is the intention indicated by the terms of the later or dominant statute, supplemented by the history of the legislation when the latter throws any real light on the subject. We have been at pains to set forth in detail the various circumstances which are relied upon to show that the Legislature did intend to repeal the provisions now in question. After obtaining all the light we can, the question of what was the legislative intention still remains quite doubtful. Under those circumstances, we think that the case should be determined by the presumption against repeals by implication. If that be the sound position, as upon the whole we are persuaded it is, it follows the learned Judge below erred in directing a verdict for the insurance companies, and the judgment below will be reversed and the case remanded for a new trial.
Reversed.
WOODS, Circuit Judge, died before the above opinion was prepared.
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596 S.W.2d 11 (1979)
LEXINGTON THEOLOGICAL SEMINARY, INC., Appellant,
v.
Ottie David VANCE, Appellee.
Ottie David VANCE, Cross-Appellant,
v.
LEXINGTON THEOLOGICAL SEMINARY, INC., Cross-Appellee.
Court of Appeals of Kentucky.
May 18, 1979.
Herbert Sledd, William H. McCann, Brown, Sledd, McCann, PSC, Lexington, for appellant/cross-appellee.
Richard N. Rose, Lexington, for appellee/cross-appellant.
Before COOPER, HOWARD and HOWERTON, JJ.
HOWARD, Judge.
This is an appeal from a judgment entered in the Fayette Circuit Court ordering the Lexington Theological Seminary, Inc. (the defendant below) to grant a Master of Divinity graduate degree to Ottie David Vance (the plaintiff below), an admitted homosexual.
The trial court decided this case on a contractual basis. Briefly summarized, the trial court determined that the catalog issued by the Lexington Theological Seminary, Inc. (hereinafter referred to as the Seminary) fulfilled the requirements of a contract between the Seminary and Ottie *12 David Vance (hereinafter referred to as Vance). The trial court further determined that Vance had fulfilled all the academic and financial requirements needed as prerequisites for the granting of a degree. The court held that the catalog did not set forth reasonably clear standards concerning character traits and that none of the contract terms made clear that the Seminary could refuse to grant a degree to Vance because he was a homosexual.
Vance enrolled in the Seminary in September of 1972. In September, 1974, Vance applied to the faculty for admission to the degree candidacy program. The application was deferred until Vance fulfilled certain requirements relating to field experience.
Unbeknownst to the faculty or administrative staff of the Seminary, Vance was a homosexual and had actively engaged in this life style for a number of years. In September, 1975, Vance advised Dean Roy Graham of the fact that he was a homosexual, that he lived a homosexual life style and had been "married" to another man for six years, and that he now desired to come out of the closet. Dean Graham advised Vance to meet with Dr. Wayne H. Bell, president of the Seminary. Vance met with Dr. Bell and told him of his homosexual life style.
Dr. Bell emphasized to Vance that his life style and practice of homosexuality could impair the granting of a degree by the Seminary. Vance was advised that even if he met the academic requirements and was admitted to the degree candidacy program, neither of these factors guaranteed that he would be granted a degree. Vance testified that he was aware that the faculty and Board of Trustees must approve the granting of a degree and that he knew there was some question as to whether the faculty and/or the Board of Trustees would approve.
In January, 1976, Vance was informed that his application for degree candidacy was again being deferred until he could complete one particular course during the spring semester. Vance took the course and successfully completed it. In May, 1976, the faculty recommended that Vance receive his Master of Divinity degree. The Executive Committee voted not to approve the faculty recommendation and the full Board of Trustees subsequently ratified the Executive Committee's decision not to grant Vance a degree. Vance thereafter instituted suit, seeking to have his degree conferred.
Vance also sought compensatory damages for lost wages and the award of attorney's fees. The trial court held that Vance failed to prove any damages he sustained and did not award attorney's fees. These two issues are the subject of Vance's cross-appeal.
The Seminary argues three issues on appeal: 1) That the order compelling the conferring of the degree was a violation of the First Amendment right to freedom of religion; 2) that Vance failed to prove any contract between the parties and failed to prove a breach of contract by the Seminary or the fulfillment of obligations by Vance; and 3) that any alleged contract was rendered void because of Vance's failure to reveal that he was a homosexual at the time of admission to the Seminary.
This Court will not discuss the First Amendment argument since this Court believes, as did the trial court, that this is a contract case. This Court differs with the trial court in that this Court believes that reasonably clear standards concerning character were set forth in the catalog.
The terms and conditions for graduation from a private college or university are those offered by the publications of the college at the time of enrollment and, as such, have some of the characteristics of a contract. University of Miami v. Militana, Fla.App., 184 So. 2d 701, 704 (1966).
College regulations defining student conduct, challenged on the ground of vagueness, are not judged by the degree of specificity required for penal statutes. Neither are these regulations used in a vacuum, but rather they should be interpreted in the context of their intended import. Depperman v. University of Kentucky, 371 F. Supp. 73, 78 (E.D.Ky.1974). In Depperman, *13 the court held that the following regulation was not vague:
Any student may be denied permission to continue enrollment in the College of Medicine if, in the opinion of the Faculty Council, his knowledge, character or mental or physical fitness cast grave doubts upon his potential capabilities as a physician.
In the instant case, the portions of the catalog for the school year 1972-1973, which are relevant to this case, read as follows:
1) The introductory page, entitled "Education For Ministry", contains the following two paragraphs:
Lexington Theological Seminary is engaged at the graduate level in professional education for the Christian ministry. Finding its charter in the gospel transmitted through the Bible and borne through history by the ongoing life of the church, it seeks to equip its graduates to serve as contemporary servants of that gospel.
. . . . .
By the time of graduation, students are expected, having worked through problems of vocational indecision, to be firmly committed to the role and mission with which they will begin their ministry.
2) The Master of Divinity Program is described in the following paragraph:
The Master of Divinity program is a three-year course of study and is designed for those who desire to become pastors of local congregations, leaders of religious education, religious leaders at the state and national level, ministers of music, campus ministers, chaplains in hospitals and in the armed forces, missionaries, and leaders in other specialized ministeries.
3) The explanatory section for the application for degree candidacy contains the following paragraph:
At the time of his application for candidacy, the student's overall seminary profile, including academic performance, field education leadership, financial responsibility, and fundamental character, is evaluated by the faculty. No student on probation may [be] admitted to candidacy.
4) The admissions standards and policies section contain the following paragraph:
Lexington Theological Seminary will consider for admission applicants who hold the B.A. degree or its equivalent. Preference will be given to graduates of accredited institutions who have concentrated in the liberal arts, maintained a minimum of B average in their pre-seminary studies, and display traits of character and personality which indicate probable effectiveness in the Christian ministry.
The trial court believed that the Seminary should have defined what it meant and expected by the use of such words and phrases as "Christian ministry", "gospel transmitted through the Bible", "servants of the gospel", "firmly committed to the role and mission with which they will begin their ministry", "fundamental character" and "display traits of character and personality which indicate probable effectiveness in the Christian ministry." The trial court stated that, although the use of these words and phrases might be clear to the Board of Trustees, the meanings of these words and phrases were not clear to it [the trial court].
We disagree. Those words "can be easily understood by anyone who possesses the intelligence to gain admission to an accredited institution of higher learning." Papish v. Board of Curators of University of Missouri, 464 F.2d 136, 143 (8th Cir. 1972) reversed on other grounds, 410 U.S. 667, 93 S. Ct. 1197, 35 L. Ed. 2d 618 (1973).
Besides having meaning to anyone with enough intelligence to be admitted to a college, we believe that these words should have even greater meaning to a student who is actively seeking a degree in a religious field of study. We do not believe that the words and phrases used in the catalog were vague or indefinite.
In Carr v. St. John's University, New York, 34 Misc. 2d 319, 231 N.Y.S.2d 403, *14 reversed 17 App.Div.2d 632, 231 N.Y.S.2d 410, affirmed 12 N.Y.2d 802, 235 N.Y.S.2d 834, 187 N.E.2d 18 (1962), a Catholic university regulation stated that, in conformity with the ideals of Christian education and conduct, the university reserved the right to dismiss a student on whatever grounds the university deemed advisable. A divided court held that the dismissal of four students, two of whom were married in a civil ceremony and two of whom acted as witnesses, was within the discretion of the university and that the court could not review the exercise of that discretion.
The Seminary asserts that the order compelling the conferring of the graduate degree to Vance was a violation of the First Amendment. Again, we do not feel bound to decide this case on First Amendment grounds, but rather on the basis of whether the Seminary breached its contract to Vance by refusing to grant him his degree.
The courts will not generally interfere in the operations of colleges and universities, especially in actions challenging the institution's academic regulations, since the courts possess minimum expertise in this area. Depperman v. University of Kentucky, supra, at pg. 76.
In 15A Am.Jur.2d Colleges and Universities § 31, at pgs. 292-293, appear the following statements concerning the conferring of degrees by a university:
Universities and colleges are usually vested with the power to graduate and to confer degrees and diplomas on students who have complied with the requirements imposed by the regulations of such institutions. Where a student matriculates at a college or university, a contractual relationship is established under which, upon compliance with all the requirements for graduation, he is entitled to a degree or diploma. However, the faculty or other governing board of a college or university, which is authorized to examine the students and to determine whether they have performed all the conditions prescribed to entitle them to a degree or diploma, exercises quasi-judicial functions, in which capacity its decisions are conclusive, except that a degree or diploma may not be refused arbitrarily. (emphasis ours).
It is true that the Seminary is essentially a private graduate school. However, its main emphasis is on the training and education of people who desire to become involved in the Christian ministry. In this connection, Vance fully intends to become a minister and was not seeking this degree for any other purpose.
The trial court specifically held that it was not deciding the morality of homosexuality in this particular case, even though it can be a criminal offense under Kentucky law, KRS 510.100. Although this case can be decided under contract law, the question of morality of homosexual Christian ministers must be of overriding importance to an institution such as we have here that is engaged in the business or calling of training persons for the Christian ministry. It begs the question for Vance to argue that the secular world is becoming more tolerant of homosexuality as a viable life style. This conclusion on his part is speculative, but even if it is true, this argument is not relevant to the issues in the case.
Although we are living in a society that is more permissive in many respects than the societies in the recent past, the argument that Christian denominations or other religious groups should adopt the life style and morals of some segments of the population at any given time is ridiculous on its face. This type of argument can be made for gaining approval for many different activities which are completely contrary to the teachings of the Christian religion.
The Lexington Theological Seminary is an old and illustrious Seminary that has prepared ministers to preach the Christian gospel in the Disciples of Christ Church and other denominations. Therefore, it has the most compelling interest in seeing that its graduates who go forth with a Divinity degree, bearing the name and approval of the Lexington Theological Seminary, shall be persons possessing character of the highest Christian ideals. Therefore, the Board *15 of Trustees of the Lexington Theological Seminary had every right, and it was their strict duty, to exercise sound discretion in the matter of granting a degree to Ottie David Vance.
In view of the circumstances shown in this case, we do not find that the Board exercised its discretion in an arbitrary manner or that same was abused. The trial court's decision in ordering the Seminary to grant Vance a Divinity degree was clearly erroneous. Furthermore, there was no estoppel shown precluding the denial of the degree by the Seminary. Vance proceeded to finish his studies at his own risk, after he revealed his homosexual life style. He was warned by the Seminary that this revelation might preclude the degree being granted.
The judgment of the trial court is reversed on the appeal and is affirmed on the cross-appeal. The trial court shall dismiss the complaint.
COOPER, J., concurs.
HOWERTON, J., dissents.
HOWERTON, Judge, dissenting.
I cannot agree with the opinion of my colleagues, although I am sympathetic with the desire of the trustees to withhold the seminary's degree from an avowed homosexual. For me, the problem of the seminary falls primarily on the actions, or inactions, of the dean, the president, and the faculty. If those seminary leaders cannot stand up for what is supposed to be right, then why should we expect the student, Vance, to interpret the meaning of the language in the catalog to exclude him from eligibility for a degree. Since neither the dean, the president, nor the faculty understood the catalog to clearly exclude homosexuals, their view certainly clouds any contrary meaning.
The trial court found the language in the catalog to be too ambiguous to exclude a homosexual such as Vance. Under the circumstances in this case, I agree. Except for the indecisiveness of the dean and the president, however, I would have agreed with the majority opinion and concluded that anyone intending to become a minister in any Christian denomination should understand, or at least soon know, the attitudes toward homosexuality as are expressed in both the Old and New Testaments of the Bible.
Once the dean and the president were aware of Vance's intention to continue living as a homosexual, they could have reasonably expelled him. Such a decision would obviously have been upheld by all members of this panel, if Vance had bothered to challenge such a dismissal.
Vance voluntarily gave the dean and president this information in September, a whole school year before his time for graduation. At the beginning of his final semester, the seminary accepted more tuition, and Vance was advised what he must do to complete the requirements for the degree. Vance did all of these things and was then recommended for a Masters Degree by the faculty. Therefore, in addition to agreeing with the trial judge's finding that the catalog did not exclude homosexuals, I must also conclude that the seminary should be estopped from denying Vance his degree. The fact that Vance was given some weak warning would not overcome this.
I can certainly understand why the Board of Trustees would not wish to grant Vance a degree from the Lexington Theological Seminary, Inc., but granting the degree does not ordain Vance to become a minister in any church. Furthermore, degrees have been granted by this seminary to others who did not intend to become Christian ministers. For that matter, degrees have been granted to non-christians, who merely desired to become educated in the teachings of the seminary. In the future, the Board should consider revising the catalog to be more explicit on what is meant by "fundamental character." The Board might also make it clear that applications for degree candidacy will not only be "evaluated by the faculty" but will also be reviewed by the Board.
*16 The seminary raised a question regarding religious freedom and the separation of church and state. Under the peculiar circumstances in this case, and considering the nature of this particular seminary, I do not find that the trial court's judgment violates the constitutional requirements of religious freedom and the separation of church and state. The seminary also argued that Vance's original enrollment was based on fraud or mistake which would render any contract void. This point would be valid only if the catalog "contract" could be interpreted to exclude homosexuals. Since I have concluded that the language has been rendered meaningless, Vance's failure to disclose his life style and feelings on this moral issue could not constitute fraud on his part. This argument might have carried considerable weight, and the changed circumstances would probably have brought a different result, if Vance had not disclosed his homosexuality until he had completed all academic requirements for his degree.
Finally, I agree with the trial judge in that Vance proved no damages. Therefore, I would affirm the judgment of the trial court on the appeal and the cross-appeal.
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596 S.W.2d 166 (1980)
UNITED STATES FIRE INSURANCE COMPANY and the Home Indemnity Company, Inc., Appellants,
v.
Frank SKATELL, Appellee.
No. 8715.
Court of Civil Appeals of Texas, Texarkana.
January 22, 1980.
Rehearing Denied February 26, 1980.
*168 Tom Alexander, Byron G. Lee, Butler, Binion, Rice, Cook & Knapp, Houston, for appellants.
Ralph Balasco, Houston, for appellee.
CORNELIUS, Chief Justice.
Frank Skatell brought this action to collect insurance benefits under two insurance policies issued by U. S. Fire Insurance Company and The Home Indemnity Company, Inc. covering certain pieces of jewelry which were allegedly stolen from his home on the night of December 15, 1973. On March 20, 1974, in the course of their investigation of the loss, the insurance companies orally examined Mr. Skatell under oath, during which examination he denied having any previous criminal record. On May 23, 1974, Mr. Skatell was again orally examined and at that time he admitted that he did have a criminal record consisting of several offenses of fraud, hot checks and theft by false pretenses. Thereafter the insurance companies denied Mr. Skatell's claim on the ground that the policies had been voided because of his false statements. Each policy contained a clause which provided as follows:
"1. Misrepresentation and Fraud. This entire policy shall be void if, whether before or after a loss, the Insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the Insured therein, or in case of any fraud or false swearing by the Insured relating thereto."
Trial was to a jury which found that the jewelry had been stolen as alleged and that its actual cash value was $56,200.00, but that Mr. Skatell had concealed the fact of his criminal record and that such concealment was material to the risk. The trial court disregarded the jury findings of concealment and materiality and rendered judgment for Mr. Skatell against each company for $28,100.00, plus interest from May 28, 1974, to the date of judgment. The basis of the court's disregard of the jury issues was that the insurance companies did not allege or present any evidence that the false statements were of the nature required by Tex.Ins.Code Ann. art. 21.19 in order to void a policy. Article 21.19 provides as follows:
"Any provision in any contract or policy of insurance issued or contracted for in this State which provides that the same shall be void or voidable, if any misrepresentations or false statements be made in proofs of loss or of death, as the case may be, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract or policy, unless it be shown upon the trial of such suit that the false statement made in such proofs of loss or death was fraudulently made and misrepresented a fact material to the question of the liability of the insurance company upon the contract of insurance sued on, and that the insurance company was thereby misled and caused to waive or lose some valid defense to the policy."
The companies bring this appeal complaining principally of the failure of the trial court to render judgment in their favor based upon the jury findings of misrepresentation and materiality. We have concluded *169 that the trial court correctly disregarded those issues. The insurance companies were attempting to invoke a policy provision which would relieve them of liability, and therefore they had the burden to plead and prove both that misrepresentations such as those contemplated by the policy provisions were made and those misrepresentations met the requirements of the anti-technicality statute. Fireman's Fund Ins. Co. v. Reynolds, 85 S.W.2d 826 (Tex. Civ.App. Waco 1935, writ ref'd); Fidelity-Phenix Fire Ins. Co. v. Sadau, 167 S.W. 334 (Tex.Civ.App. Amarillo 1914, no writ). There was no allegation or proof in this case that the false statements were fraudulently made, were material to the issue of liability, or caused the insurers to waive or lose any valid defense to the policies.
The companies argue, however, that the restrictions of Article 21.19 do not apply to Mr. Skatell's statements because those statements were made upon oral examination rather than in the proofs of loss which Article 21.19 specifically mentions. We disagree. The examination under oath, although not a formal proof of loss, nevertheless is an elaboration upon and partakes of the nature of a proof of loss, and therefore comes within the statute even though not specifically mentioned. Fireman's Fund Ins. Co. v. Reynolds, supra; Vernon v. Aetna Insurance Company, 301 F.2d 86 (5th Cir.), cert. denied, 371 U.S. 819, 83 S. Ct. 33, 9 L. Ed. 2d 59 (1962). For an analogous conclusion concerning Article 21.16 relating the misstatements in an application for insurance, see Bowie v. Ranger Insurance Company, 563 S.W.2d 394 (Tex.Civ.App. Eastland 1978), rev'd on other grounds, 574 S.W.2d 540 (Tex.1979). As noted in Vernon v. Aetna Insurance Company, supra, if false statements in the more formal proof of loss will not void the policy unless they are fraudulent, material and harmful to the insurer, certainly the intent of the statute is that false statements of lesser consequence should not be allowed to void a policy unless they, too, meet such requirements.
The next group of points contends that the trial court erred in failing to submit certain requested special issues inquiring (1) whether Mr. Skatell concealed or misrepresented any fact material to the risk when applying for the insurance; (2) whether he misrepresented any material fact after the loss; (3) whether he failed to produce any invoices, purchase slips or other records concerning the lost property; and (4) whether the misstatements materially interfered with the investigation of the loss.
The requested issues were properly refused. The first should not have been submitted because there was no allegation or evidence that any misrepresentation was made in the application for Mr. Skatell's insurance. The second and third requested issues were adequately submitted by Special Issue No. 4 which the court gave, and the last requested issue was correctly refused because there was no pleading or evidence to support its submission.
It is also asserted that the companies' objections to the court's charge should have been sustained because the charge failed to inquire of the jury whether Mr. Skatell was the named insured in the policies and whether he owned or controlled each piece of the jewelry at the time of the loss. The contention will be overruled. The insurance policies themselves named Mr. Skatell as the named insured, and those policies were introduced in evidence. No contrary evidence was presented. Since it was not disputed there was no need to submit an issue thereon. Sullivan v. Barnett, 471 S.W.2d 39 (Tex.1971). As for the ownership or control of the jewelry, Mrs. Skatell[1] testified repeatedly about the purchase of "their" jewelry, the insuring of it, and the loss of it in the burglary, plus the fact that each item lost was taken from "their house." Such testimony was sufficient to constitute some evidence of ownership and control. Although the testimony *170 was from an interested party, it was clear, positive, and free of circumstances tending to discredit or impeach it, and being uncontradicted was sufficient to establish the fact of ownership and control without the necessity of submitting an issue thereon. McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943); Texas & Pacific Railway Company v. Moore, 329 S.W.2d 293 (Tex. Civ.App. El Paso 1959, writ ref'd n. r. e.).
Point of Error No. 11 urges that reversible error was committed when the trial court admitted into evidence Mr. Skatell's Exhibit No. 1 which was a police report of the theft investigation. After lengthy objections and arguments, the court excluded everything in the police report except the fact that Mr. and Mrs. Skatell had reported a theft, and those matters which the investigating police officers had personally found and reported in their investigation. The trial judge then carefully instructed the jury and allowed only the admitted portions of the report to be read to the jury.
We perceive no error with reference to the exhibit. The fact that the Skatells reported the theft of their jewelry was admissible, not for the truth of their statement, but to show that they had made such a report, an operative fact in itself because the credibility of their testimony that a theft had occurred had been attacked. The other portion of the exhibit, being the report by the investigating officers of what they actually found, as distinguished from what others had said or done, was shown to meet the requirements of the business records act, Tex.Rev.Civ.Stat.Ann. art. 3737e (Supp.1978-1979), and was therefore admissible.
The appeal also attacks the judgment on the ground that the values of the individual pieces of jewelry were not established, particularly items 3, 4 and 8. We find the evidence sufficient to support the jury's findings of value. Mr. Levit, a jeweler who sold most of the items to the Skatells, testified that he appraised each item of such jewelry on behalf of Mr. and Mrs. Skatell in July of 1973 for insurance purposes, and he recited those values into the record. He further testified to the changes in the value of each item which had occurred between the date of the appraisal and the date of the loss, and the values found by the jury were consistent with those values. There was no other testimony as to value. The main thrust of the companies' complaint in this regard is that as to items 3, 4 and 8 Mr. Levit said he had no independent recollection of the pieces or of their value apart from the appraisal, but that based on the appraisal he could say what the values would be at the time of loss. That testimony was not improper. Mr. Levit testified that he made the appraisal from personal knowledge and examination of the jewelry in July of 1973 and at that time he made an accurate record or memorandum thereof. Although having no independent recollection of the value of the particular items, having testified that when the event was fresh he made a memorandum thereof and being able to guarantee its correctness, his testimony of the facts shown in the memorandum was admissible under the rule of past recollection. Decker v. Commercial Credit Equipment Corp., 540 S.W.2d 846 (Tex.Civ.App. Texarkana 1976, no writ); 1 McCormick & Ray, Texas Evidence § 541, p. 438; § 542, p. 439; § 544, p. 441; § 547, p. 443 (2d ed. 1956).
In Point 14 it is urged that the trial court erred in refusing to admit the testimony of the witness Pat Carr, a former F.B.I. officer, about his review of the F.B.I. files concerning the investigation of the theft. The point will be overruled. Although the court initially sustained an objection to Mr. Carr's testimony regarding his review of the F.B.I. files, the evidence eventually came in, and we cannot perceive any harm which resulted to the insurance companies. Tex.R.Civ.P. 434.
Points 15 and 16 complain of prejudicial remarks of the trial judge during the arguments concerning Mr. Carr's testimony and the judge's reversal of his decision to grant a mistrial. We find that the remarks of the trial judge were invited by counsel. As for the reversal of a decision to grant a mistrial, *171 it appears that when counsel first requested a mistrial the judge stated that one would be granted if either party desired it, but after reflection and upon hearing the reasons for counsel's motion (which had not been stated theretofore), the court determined that a mistrial was not warranted. We agree with the trial court's ultimate conclusion, and under the circumstances, we cannot conclude that any harm was done.
The last contention on appeal is that prejudgment interest on the amount of the claim should not have been allowed. The trial court allowed interest on the recovery at 6% per annum from May 28, 1974, which was the date the insurance companies denied Mr. Skatell's claim. The companies argue that such an award of prejudgment interest was improper, because they were only liable to Mr. Skatell for the actual cash value of the jewelry, and such value could not be determined until the trial. We disagree. The rule is that interest runs from the date when the loss should have been paid. Where the insurer denies liability, and the insured establishes liability, interest will run from the date of the denial of the claim, even though the actual value of the lost property is not established until the trial. Miles v. Royal Indemnity Co., 589 S.W.2d 725 (Tex.Civ.App. Corpus Christi 1979, writ filed); Fidelity & Casualty Co. of N.Y. v. Jefferies, 545 S.W.2d 881 (Tex.Civ. App. Tyler 1976, writ ref'd n. r. e.); New York Underwriters Ins. Co. v. Coffman, 540 S.W.2d 445 (Tex.Civ.App. Fort Worth 1976, writ ref'd n. r. e.); Fort Worth Lloyds v. Hale, 405 S.W.2d 639 (Tex.Civ.App. Amarillo 1966, writ ref'd n. r. e.).
All other points of error have been carefully considered and are respectfully overruled.
The judgment of the trial court is affirmed.
NOTES
[1] Mr. Skatell did not appear at the trial. Portions of his deposition testimony were introduced into evidence.
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596 S.W.2d 916 (1980)
ROSEMONT ENTERPRISES, INC., Appellant,
v.
William R. LUMMIS, Temporary & Co-Administrator, Appellee.
No. A2244.
Court of Civil Appeals of Texas, Houston (14th Dist.).
February 13, 1980.
Rehearing Denied March 5, 1980.
*918 Eliot Tucker, Mandell & Wright, John E. Bagalay, Jr., Houston, for appellant.
R. F. Wheless, Jr., Houston, for appellee.
Before BROWN, C. J., and MILLER and JUNELL, JJ.
MILLER, Justice.
The threshold questions in this action to enforce the terms of a promissory note are whether the probate court of Harris County had in personam jurisdiction of the debtor, a Nevada corporation with offices in New York and authority to do business in California as well, and if so, did it have subject matter jurisdiction? We hold that the court had both, that it decided other questions involved in the judgment correctly, and thus we affirm.
On July 2, 1965, Howard Hughes granted to Rosemont Enterprises, Inc. the exclusive right to publish his biography or otherwise to exploit his name or life-history. Rosemont was incorporated in Nevada for that purpose on September 16, 1965. Its original three shareholders were two executives of the Hughes Tool Company and Chester Davis, general counsel of that company. Under the contract, Rosemont agreed to pay Hughes 60% of the net proceeds, as defined, derived by Rosemont from the use of the rights granted it.
Aside from the issue of capital stock, Rosemont financed its operations from July 2, 1965, to September 9, 1974, by a series of loans from the Texas Commerce Bank, N. A., in Houston, Texas. These loans were guaranteed by the Hughes Tool Company, which later changed its name to Summa Corporation, and were arranged by a Hughes Tool Company executive, Raymond Holliday, who resided in Houston. By September 6, 1974, the appellant owed the bank $250,000.00 and had paid approximately $130,000.00 in interest. This interest was apparently financed by unsecured borrowings from an unrevealed source.
In order to reduce the interest charges and to lessen Summa Corporation's income tax exposure, on September 9, 1974, the *919 decedent, Howard Hughes, transferred to appellant's account in the Texas Commerce Bank $500,000.00 in exchange for a note of like amount dated September 6, 1974, due on or before September 6, 1975. The note provided for interest at the prime rate charged by the Texas Commerce Bank, and was payable at that bank. $265,091.33 of the proceeds were used to pay principal and interest on the notes due the bank, and the balance remained on deposit at the bank. On September 12, 1975, Rosemont purchased a certificate of deposit for $225,000.00 from the Texas Commerce Bank, and left the certificate with the bank for safekeeping.
Hughes died on April 5, 1976, without having attempted to collect either principal or interest on the note. Appellee Lummis was appointed Temporary Co-Administrator in Texas of the Hughes estate by the probate court of Harris County. He filed suit in that court seeking recovery on the note, and also sought a temporary injunction against Texas Commerce Bank restraining the bank from releasing funds of Rosemont held by the bank. Appellee additionally requested a writ of garnishment of the approximately $245,000.00 held by the bank for Rosemont's account.
Service was had on the Secretary of State, who notified appellant by mail addressed to its New York office. The day before the hearing on the temporary restraining order, Chester Davis, secretary-treasurer of appellant, wired the court stating that he had just received copies of the petition, asking for a delay in the hearing. This was granted. Rosemont then filed a special appearance and motion to dismiss in which it contested the court's personal jurisdiction over it, the authority of Lummis to bring the suit, and the propriety of the issuance of an injunction. The court ruled in appellee's favor on Rosemont's motion, and later granted summary judgment on the $500,000.00 note and directed the issuance of a writ of garnishment.
I.
In its first point of error, appellant levels a three-pronged attack on the probate court's ruling that it had personal jurisdiction of appellant. It alleges service of process was inadequate; the Texas "long-arm" statute, Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964), does not authorize the suit; and Rosemont had insufficient contacts with Texas to satisfy federal and state due process standards.
Appellee alleged in its original petition that "Defendant, Rosemont Enterprises, Inc., is a Nevada Corporation doing business in Texas and having assets located in the State of Texas and may be served by serving the Secretary of State of Texas, pursuant to article 2031b." Appellant correctly points out that such petition fails to allege that it does not maintain a place of regular business in Texas nor a designated agent for service.[1] It urges that such failure is fatal to the process, and cites McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965), which held that the record must reflect these conditions. As pointed out in Collins v. Mize, 447 S.W.2d 674, 675 (Tex.1969), however, "[t]his court's opinion in McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965) is inapplicable, since the appeal there was on a writ of error following a default judgment. The *920 particularity of pleading required to sustain a default judgment against a direct attack was a critical consideration in that case." (Emphasis added). Appellant here does not deny that it received actual notice, and it has vigorously defended the case.
Appellant's telegram to the court asserted that Rosemont had "no pertinent contact with Texas other than the deposit of funds with the Texas Commerce Bank and its only office is in New York." The missing allegations were thus supplied to the record. Further, appellee's amended complaint filed in the federal district court after removal of the case thereto was served on Rosemont by service upon the Secretary of State and notice to Rosemont as provided in article 2031b. In addition, after remand to the probate court, appellee filed its amended petition which was served upon appellant by service upon the Secretary of State and notice to Rosemont. Both of these petitions contained the missing allegations.
The Supreme Court of the United States has pointed out in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656, 94 L. Ed. 865, 873 "the... words of the Due Process Clause... at a minimum require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." These minimum constitutional standards have been adequately met in the case at hand. Rosemont's complaint of inadequacy of notice is ill-founded.
Appellant's next attack is on the statutory foundation of the court's in personam jurisdiction over the defendant. Article 2031b(4) provides as follows:
For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, joint stock company, association, partnership, or non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.
Appellant singles out the phrase "with a resident of Texas" and argues that such phrase excludes transactions to be performed in the state where both parties are non-residents of the state.
Both parties contend that the decedent, Hughes, was not a resident of Texas. While we note parenthetically that on December 6, 1977, a jury, in a Texas case now on appeal, found Hughes was a Texas domiciliary, such determination is not necessary to finding in personam jurisdiction in this case.
Appellant cites Law, Snakard, Brown & Gambill v. Brunette, 509 S.W.2d 671 (Tex.Civ.App.Beaumont 1974, writ ref'd n. r. e.) as authority for the argument that no single contract entered into between non-residents may be the basis of a contested suit within the state. That case, however, in finding that the defendant was amenable to suit in Texas, pointed out that the burden is on the defendant to show that it is not amenable to the long arm process not that one of the parties must be a resident of Texas. Our supreme court has ruled that "Article 2031b reaches as far as the federal constitutional requirements of due process will permit." U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977). The phrase, "and without including other acts that may constitute doing business" in 2031b(4) expands the scope of in personam jurisdiction to the limits of the federal constitution. See Thode, In Personam Jurisdiction; Article 2031b, the Texas "Long Arm" Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere, 42 Tex.L.Rev. 279, 307-308 (1964). We hold that if the transaction at issue meets the constitutional requirement of due process a suit thereon is justiciable in Texas even though neither party is a resident of the state.
Appellant's third attack on the personal jurisdiction of the court below is *921 that due process considerations preclude the exercise of jurisdiction in this case. Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977) makes it abundantly clear that the test of state court in personam jurisdiction is whether it is reasonable in the context of our federal system of government to require the defendant to defend a particular suit in the state where the suit is brought. The criterion of minimum contacts consistent with traditional notions of fair play and justice developed by International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), and its "progeny", McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), and Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958) has been interpreted in Texas to require consideration of several factors: (1) there must be a purposeful act or consummation of some transaction in the forum state by the non-resident defendant, (2) the cause of action must arise from, or be connected with, such act or transaction, (3) the forum state must have some special interest in granting relief, and (4) the relative convenience of the parties must be considered. O'Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966); Computer Synergy Corp. v. Business Systems, 582 S.W.2d 573 (Tex.Civ.App.Houston [1st Dist.] 1979, no writ).
In the present case, appellant had almost constant contact with the Texas Commerce Bank during the period extending from October 7, 1965, to September 9, 1974. In that period Rosemont signed original or renewal notes at least 42 times, these notes being payable to the bank in Houston. Each renewal required correspondence with the bank at its Houston office. It would be difficult for Rosemont to argue that a default in its obligation during that period would not have subjected it to a suit in Texas by the bank.
The note to decedent Hughes was apparently negotiated on the advice of a Texas attorney, Mickey West, with a Texas executive of Summa Corporation, Raymond Holliday, and was payable in Texas; it was funded by Hughes by a transfer of funds from his account in the Texas bank to appellant's account in that same bank; the proceeds which were not used to discharge the indebtedness to the Texas bank were mainly invested in a certificate of deposit issued by the bank. The principal tangible assets of the appellant corporation were that certificate of deposit which was held in safekeeping in Texas by the bank and its bank account at Texas Commerce Bank. The bulk of appellant's income in its fiscal year ended July 30, 1976 ($10,441.00 of a total of $10,880.00) was derived from interest on the Texas certificate of deposit. It is interesting to note that in its two fiscal years prior to the purchase of the certificate Rosemont had no gross income at all.
Rosemont is a corporation chartered in Nevada with its offices in New York. Lummis has been appointed and has qualified in the State of Texas, where there is a pending administration of at least a portion of the Estate of Howard R. Hughes, Jr. The custodian of the note and the depository of appellant's funds and principal tangible assets is located in Texas. Other witnesses, such as Hughes' accountant, resided in Texas. There is no doubt that, on balance, the parties were not more inconvenienced by trial of the suit in Texas than in any other state.
With its interest in the orderly administration of the Texas assets, at least, of the Hughes estate, it is evident that Texas has a special interest in the determination of this litigation.
For all of the above listed reasons, we hold that the "minimum contacts" test of International Shoe and its progeny has been more than met, and appellant Rosemont is subject to in personam jurisdiction of Texas courts. Appellant's first point of error is overruled.
The court below held that Davis' telegram to the court on February 10, 1977, constituted an appearance in the proceedings. *922 Inasmuch as the telegram did not comply with Rule 120a, Tex.R.Civ.P., which provides for a special appearance to contest the jurisdiction of the court, the court concluded the communication was a general appearance in this cause. Appellant vigorously contests such finding. The question, though interesting, is not necessary of decision in view of our holding that Rosemont had sufficient contacts with Texas to satisfy the requirements of personal jurisdiction by a Texas court.
II.
Appellant next questions the probate court's jurisdiction of the subject matter of this suit. It argues that the statute creating Probate Court Number Two provides that "[t]he practice and procedure of Probate Court Number Two of Harris County shall be the same as that provided by law generally for the county courts of this state", Tex.Rev.Civ.Stat.Ann. art. 1970-110a.2, § 2 (Vernon Supp.1965 to 1979), that county courts in general have no jurisdiction of matters involving an amount in controversy in excess of $1,000.00, Tex.Rev.Civ. Stat.Ann. art. 1950 (Vernon 1964), and that, a fortiori, Probate Court Number Two has no jurisdiction to hear a $500,000.00 law suit.
Tex.Prob.Code Ann. § 5 (Vernon Supp. 1978-79) provided, in part, at the date of trial:
(d) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate,... and actions to construe wills .... (Emphasis added).[2]
Appellant argues that this section of the probate code does not apply to property that has not been determined to belong to the estate, and "the very nature of the underlying lawsuit is to determine whether the $500,000 is owed to the estate."
It cannot be denied that when the decedent advanced $500,000.00 to Rosemont, he acquired a claim of some sort against that corporation. That claim, whether absolutely due on September 6, 1975, or if only a participation in future profits, is property of the estate. Appellant's argument must therefore fall on this ground alone.
The larger question, however, is whether the probate code allows an executor or administrator of an estate to sue on a note in probate court where the claim exceeds the jurisdictional limit of the county court. We hold that it does. The supreme court of Texas, in holding that an executor could sue in a probate court for conversion of funds allegedly belonging to an estate, laid down the following rule: "The determination of a decedent's right to probate assets necessarily falls within the scope of being an action `incident to an estate.' Furthermore, the outcome of [the] suit will have a direct bearing on the assimilation, collection, and distribution of [the decedent's] estate." English v. Cobb, 593 S.W.2d 674 (Tex.1979).
Under the statute as interpreted by our supreme court it is clear that the probate court had subject matter jurisdiction of this cause. Appellant's second point of error is overruled.
III.
Appellant's third point of error asserts that Appellee Lummis, as temporary co-administrator, lacked authority to file suit to collect the note because (1) the probate court did not give him such power nor does the probate code authorize it, and (2) the Nevada administrator alone had the authority *923 to sue because the situs of the note, since it is personal property, is Nevada, the supposed domicile of the decedent.
In support of the first premise, appellant urges that the powers of temporary administrators include only those powers "specifically expressed in the order of the court appointing them, and as may be expressed in subsequent orders of the court." Tex.Prob.Code Ann. § 133 (Vernon 1956). This argument overlooks the probate court's order of August 18, 1976, which granted the temporary co-administrator "the same powers, authorities and duties conferred on permanent administrators under the Texas Probate Code, other than the power to make distribution to any beneficiary of the estate ...." The argument is thus without foundation.
Appellant cites no cases in support of his assertion that the Nevada administrator had exclusive right to sue on the note. We have found none which so hold. It is settled law that a foreign administrator or executor, as such, cannot sue or be sued in Texas courts. Eikel v. Bristow Corporation, 529 S.W.2d 795 (Tex.Civ. App.Houston [1st Dist.] 1975, no writ). We have concluded that jurisdiction of this suit lies in Texas courts, and the note was physically located and payable in Texas. It must therefore follow that the Texas representative of the estate had power to sue on the note in Texas. Appellant's third point of error is overruled.
In its fourth point of error, appellant alleges that appellee was not entitled to a restraining order as a matter of law. During the course of the litigation, Rosemont agreed to extension of this restraining order several times, and, in fact, until the final judgment, the restraining order was in effect by agreement. Whether or not Rosemont could have, by motion to the probate court or by appellate action, had the restraining order dissolved, the time is long since past to complain of this action of the probate court. The question being moot, appellant's fourth point of error is overruled.
Appellant's fifth point of error complains that the probate court erred in granting appellee's motion for summary judgment. In support thereof, appellant alleges that the affidavit of Chester Davis raises a fact issue in that, it is asserted, the subject note was not intended to be effective until the publication of the Hughes biography, and, therefore, was conditionally delivered. We agree with appellant that summary judgment is a harsh remedy. It is to be strictly construed against the movant, and summary judgment should be granted only if the record establishes that as a matter of law there is no genuine issue as to any material fact in the case. Taylor v. Fred Clark Felt Company, 567 S.W.2d 863 (Tex.Civ.App.Houston [14th Dist.] 1978, writ ref'd n. r. e.).
The promissory note is dated September 6, 1974, and provides, in pertinent part:
On or before one (1) year after date, for value received, ROSEMONT ENTERPRISES, INC., a Nevada corporation ("debtor") promises to pay to the order of HOWARD R. HUGHES ... the sum of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) with interest ....
It is not contested that Hughes loaned Rosemont $500,000.00 in cash which amount was evidenced by the note. The corporate tax returns of Rosemont for the years ending June 30, 1975, 1976, and 1977 each showed a liability of $500,000.00, which Rosemont's secretary-treasurer, Davis, identified as being the subject obligation. This obligation is listed in the space entitled "Mtges., notes, bonds payable in less than 1 yr." Rosemont's contention is simply that the note was not intended to become due until after the publication of the Hughes biography. This contention is, therefore, that a parol provision, rather than the express written terms of the agreement is to prevail.
*924 Under the parol evidence rule a prior or contemporaneous agreement that contradicts the express provisions of a written instrument may not be shown by extrinsic evidence. Sheppard v. Citizens Nat. Bank of Austin, 567 S.W.2d 613 (Tex.Civ. App.Austin 1978, writ ref'd n. r. e.), Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960). Appellant's argument is thus foreclosed. Appellant has not raised a material issue of fact, and its fifth point of error is overruled.
Appellant's sixth and last point of error is that the court below erred in ordering the issuance of a writ of garnishment. Appellant urges that the affidavit signed by Appellee Lummis in support of appellee's petition in the probate court did not disclose of its face his authority even though the petition was styled "WILLIAM R. LUMMIS, TEMPORARY CO-ADMINISTRATOR VS. TEXAS COMMERCE BANK, N. A. AND ROSEMONT ENTERPRISES, INC." Appellant cites Gex v. Texas Company, 337 S.W.2d 820, 828 (Tex.Civ. App.Amarillo 1960, no writ) which held "[that] an affidavit made on behalf of another in a judicial proceeding should disclose in the record or affidavit the affiant's authority." (Emphasis added). Lummis' authority is amply disclosed in the record. Rule 658 of the Texas Rules of Civil Procedure provides only that "[s]uch application shall be supported by affidavits of the plaintiff, his agent, his attorney, or other person having knowledge of relevant facts." Appellee has complied with this rule; appellant's sixth point of error is overruled.
All points of error having been overruled, the judgment is affirmed.
NOTES
[1] Art. 2031b reads, in pertinent part, as follows:
Sec. 3. Any foreign corporation, association, joint stock company, partnership, or non-resident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation, joint stock company, association, partnership, or non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such corporation, joint stock company, association, partnership, or non-resident natural person is a party or is to be made a party.
[2] The quoted language has been changed, effective August 27, 1979, to the following:
All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate.
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841 F. Supp. 209 (1994)
In re the Complaint of NOLTY J. THERIOT, INC., for Limitation of Liability as Owner of the M.V. MITZI ALARIO.
Civ. A. No. H-92-2945.
United States District Court, S.D. Texas, Houston Division.
January 7, 1994.
*210 Randolph J. Waits, Emmett, Cobb, Waits & Kessenich, New Orleans, LA, for plaintiffs.
Louis J. St. Martin, Houma, LA, Ernest H. Cannon, Ernest Cannon & Associates, Houston, TX, for Ernest LeBoeuf.
Harvey Jay Lewis, Lewis & Kullman, New Orleans, LA, Dennis M. McElwee, Schechter & Associates, Houston, TX, for Sadie S. Lorraine, Donald Lorraine, Rhonda Lorraine Danos and Ramona Lorraine.
OPINION ON DISMISSAL
HUGHES, District Judge.
1. Introduction.
Theriot seeks to limit its liability for injuries suffered by crewmembers of its ship who were injured in a car accident on the way to the ship for a crew change. Because the activity giving rise to the accident bears no substantial relationship to traditional maritime activity, this court does not have jurisdiction of the subject and, therefore, must dismiss the action.
2. Facts.
In an automobile accident on Interstate 10, near Lake Charles, Louisiana, a Chevrolet Suburban left the roadway and overturned, injuring the driver and two passengers and killing the third passenger. The car was owned by Theriot and operated by an employee of Theriot's, and it was being used to transport crewmembers to Port Arthur, Texas, where they would join in a crew change of Theriot's vessel, the M.V. Mitzi Alario. The passengers were employed by Theriot for the crew.
3. Procedural History.
In May 1992, LeBoeuf, one of the injured, filed a petition under the Jones Act in state court in Jefferson County, Texas. 46 U.S.C. App. § 688 (1987). He claimed injuries in the scope and course of his employment. Theriot was among the defendants. Later Theriot filed a complaint for limitation of liability in the United States District Court for the Eastern District of Louisiana. The court restrained other prosecutions of claims and transferred the case to the Southern District of Texas. LeBoeuf moved to dismiss the limitation of liability action for want of jurisdiction.
4. The Subject.
Theriot's limitation of liability action must be dismissed because the admiralty jurisdiction of the federal court does not extend to this case. Although federal law allows a vessel owner to limit its liability to the value of the boat, the limitation itself is not an independent basis for federal jurisdiction. 46 U.S.C. App. § 183 (1987). See Three Buoys Houseboat Vacations, U.S.A. Ltd. v. Morts, 878 F.2d 1096 (8th Cir.1989), vacated and remanded on other grounds, 497 U.S. 1020, 110 S. Ct. 3265, 111 L. Ed. 2d 775 (1990); Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1052-54 (11th Cir.1989); Complaint of Sisson, 867 F.2d 341, 348-50 (7th Cir.1989), rev'd on other grounds, 497 U.S. 358, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990). To use the limitation statute, the shipowner must have facts that support admiralty jurisdiction other than the desire to limit liability. 28 U.S.C. § 1333(a) (1986); see Guillory v. Outboard Motor Corp., 956 F.2d 114 (5th Cir.1992).
Traditionally, admiralty jurisdiction over acts was determined exclusively on the basis of the place of the event whether it occurred on navigable waters. Since 1972, the law has required that the event's facts must "bear a significant relationship to traditional maritime activity" to come within the court's admiralty jurisdiction. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S. Ct. 493, 504, 34 L. Ed. 2d 454 (1972). Admiralty jurisdiction exists "when a potential hazard to maritime commerce arises out of activity that bears a substantial relationship to traditional maritime activity." Sisson v. Ruby, 497 U.S. 358, 362, 110 S. Ct. 2892, 2895, 111 L. Ed. 2d 292 (1990).
Theriot asserts that admiralty jurisdiction requires only that either the element of locality or nexus exists. LeBoeuf urges that both *211 locality and nexus must be present. Since neither exists here, the court cannot resolve this dispute.
5. Locality.
The locality element is not present since the accident was on land in an ordinary non-maritime activity, about twenty miles from the waterway and the ship. This absence distinguishes this case from the usual case about a nexus to maritime commerce, which has the locality as a given. See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S. Ct. 493, 34 L. Ed. 2d 454; Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S. Ct. 2654, 73 L. Ed. 2d 300 (1982); and Sisson v. Ruby, 497 U.S. 358, 110 S. Ct. 2892, 111 L. Ed. 2d 292. If the car wreck had been while on a land-based errand during a port call in mid voyage, the physical connection to the sea might be said to exist, but that is not this case.
6. Nexus.
Under the law, there are two aspects of the nexus requirement:
A. The potential impact on commercial maritime commerce; and
B. The substantial relation between the act and a traditional maritime activity.
Any land-based liability of a shipowner may seriously affect its solvency and, consequently, affect maritime commerce in general. This is true for every act of the shipowner that generates a liability, whether an office lease, supply contract, or ordinary tort. This is not enough to satisfy the nexus requirement. When these activities do not have a substantial relation to traditional maritime activity, there is no admiralty jurisdiction. The solvency of the company may be destroyed, but not the solvency of the voyage. A car wreck on dry land with no particular relation to a vessel or maritime commerce, except that the vehicle had passengers going to join a ship, does not bear a sufficient relation to traditional maritime activity to fall under admiralty jurisdiction.
7. The Jones Act.
Theriot argues that admiralty jurisdiction exists when a seaman brings a claim against his employer irrespective of whether the accident occurred on land or at sea. This is potentially true when the seaman's claim comes under the Jones Act, Longshoremen's and Harbor Workers' Compensation Act, or an admiralty claim for maintenance and cure. See, e.g., O'Donnell v. Great Lakes Dredge and Dock Company, 318 U.S. 36, 63 S. Ct. 488, 87 L. Ed. 596 (1943); Perkins v. Marine Terminals Corporation, 673 F.2d 1097 (9th Cir.1982). These are situations where congress or the courts have found admiralty jurisdiction wherever the act may have occurred. In each of these, the extra protection is provided to the seaman, not the shipowner.
While the Jones Act is an independent basis for federal admiralty jurisdiction, it does not necessarily compel federal jurisdiction. LeBoeuf elected to file his claim in a state court rather than in the federal court, and the law allows the state-court jurisdiction under the Jones Act parallel to this court's. The only claim originally brought before this court is under the limitation of liability act, and it is not an independent ground of admiralty jurisdiction. This claim must be dismissed for lack of subject jurisdiction.
8. Limitation of Liability Act.
Even if admiralty jurisdiction did exist, this action would fail. The purpose of the limitation of liability procedure is to assure that liability for damage from a disaster at sea that is occasioned without the participation of the shipowner shall not exceed the value of the vessel at fault together with the pending freight. Helena Marine Service, Inc. v. Sioux City, 564 F.2d 15 (8th Cir.1977); Pennzoil Producing Co. v. Offshore Express, 943 F.2d 1465, 1473 (1991).
Because world maritime operates under limitation of liability rules, congress sought to insure that American shipping too would attract investment capital by alleviating the threat of unlimited economic exposure in situations where the shipowner is without privity or knowledge. University of Texas Medical Branch at Galveston v. United States, *212 557 F.2d 438 (5th Cir.1977). These purposes are not served by allowing a limitation of liability claim in this case. The accident did not occur at sea, nor did it occur on the vessel. The vessel did not contribute to the accident, and the accident had no direct involvement with maritime commerce. It is true that the accident occurred while the owner's agent was gathering a crew; however, this action was in preparation for a voyage, not the beginning of a voyage. None of the reasons for the personification of the vessel or the voyage apply to a land based support activity that anticipates the beginning of a voyage. While an owner-furnished means of transport might meet the tests for maritime conversion if it had happened in mid-voyage, that is not this case.
The law has furnished the whole shipowning entity with alternative ways to limit its whole liability through recognition of the corporate form of doing business and through the bankruptcy laws. There is no limitation of liability cause of action.
9. Conclusion.
Theriot's limitation of liability action will be dismissed for lack of jurisdiction over the subject because, even though the seaman has a maritime-based claim under one federal statute, the statute benefitting Theriot does not extend equally as far as the one benefitting the seaman.
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596 S.W.2d 23 (1979)
James W. JOHNSON, Appellant,
v.
K. A. CORMNEY and Ethel Cormney, Appellees.
Court of Appeals of Kentucky.
November 30, 1979.
Discretionary Review Denied April 15, 1980.
*24 James D. Ishmael, Jr., Brown, Sledd & McCann, Lexington, for appellant.
Wheeler B. Boone, Lexington, for appellees.
Before HOGGE, REYNOLDS and WINTERSHEIMER, JJ.
REYNOLDS, Judge.
This is an appeal by James W. Johnson, one of the judgment defendants against whom a verdict had been rendered by a Fayette Circuit Court jury in an action for fraud and deceit initiated by the sellers of a mechanical vending machine business to the appellant and two associates.
The appellees, Mr. and Mrs. K. A. Cormney, were the owners of a vending machine business (Central Vending Company) which *25 had been in operation for more than fifteen years in the Lexington, Kentucky, area. Their company employed 50-60 people, owned and operated 25-30 motor vehicles and operated between 700-1,000 vending machines ranging in value from $100 to $5,000 each which were located in some 300-400 locations. The company, a functioning enterprise, had at the time the business was sold assets and accumulated depreciation approximating $1,000,000 with annual gross sales and revenue of $1,500,000. At the time of sale the company's indebtedness exceeded $404,000; and it showed a loss of $74,000 for 1971. Mr. Cormney, who desired to sell the business, was contacted by Messrs. Henry, Johnson and Kennedy who were stockholders and officers in a North Carolina company. After preliminary studies and examination of the company records and assets, the parties executed a stock sale and purchase agreement on June 27, 1972, and in conjunction therewith the buyers' North Carolina company assumed indebtednesses owed by Mr. Cormney's company to the Central Bank and Trust Company, with Cormney remaining personally liable to the bank. While Mr. Henry entered into the sales-purchase contract as an officer of the North Carolina company, all contractual rights were thereafter assigned to Mr. Henry, individually, and he became the principal operating officer of the newly-acquired Kentucky corporation.
Under Henry's stewardship, during the summer and fall of 1972, the vending company experienced financial difficulties, and by October of 1972 the business was getting pressure from banks to reduce its indebtedness. On December 23, 1972, at the demand of Central Bank and Trust Company, alternate financing was required, and a new contract was entered into. Therein appellant Johnson and Mr. Kennedy agreed to personally sign an extension agreement as additional security to Central Bank and Trust Company. This agreement contained provisions to the effect that the physical assets of Central Vending would be first applied in the event of default upon the repayment of its loan, that Mr. Cormney would be fully informed so he could protect certain stock that he had pledged as additional security for the loan, and that all proceeds of the sale of used equipment would be applied toward the payment of the debt at Central Bank. On December 28, 1972, appellant Johnson was elected executive vice-president of the company at a directors' meeting and was charged with the financial aspects of the business. On January 2, 1973, a $251,182.90 promissory note to the order of Central Bank and Trust Company was signed by appellant Johnson, Kennedy and Mr. Cormney. Through the spring of 1973 unsuccessful negotiations were conducted with a national vending concern relative to the sale of Central Vending Company.
By early May 1973 the company was a financial wreck. It collapsed and was placed into receivership with only $40,000 to $50,000 worth of equipment on hand and on location, with $450,000 to $500,000 worth of bills and claims from various suppliers and with an indebtedness owing to Central Bank. This litigation was instituted by the appellees as against three original co-defendants, Henry, Kennedy and Johnson, alleging that through their overt and omitted acts they wrongfully, willfully, and maliciously conspired and connived to remove the tangible property, monies and assets of Central Vending Company and to defraud the creditors thereof. Co-defendant Henry was not present at trial and has not appealed. A directed verdict was entered for the co-defendant, Kennedy. The record is replete with substantial evidence that the Central Vending Company's assets were disposed of or sold with an intent to avoid the payment of equipment mortgages, or to cheat, hinder or delay the company's creditors which included appellees.
The appellant Johnson appeals from the $251,182.90 judgment entered against him and co-defendant, Mr. Henry. On this appeal he raises the following issues:
I. Whether the court correctly gave instructions permitting judgment against the appellant on basis that he "condoned" some alleged action, when the allegations of the complaint and amended complaint *26 charged and the opening statement of counsel indicated that proof would show that the appellant "wrongfully, willfully, maliciously, unlawfully, . . . and with a fraudulent intent" committed certain acts against the appellees in an effort to cheat them?
II. Whether there was sufficient proof of any direct involvement by the appellant to support the verdict and judgment on grounds of fraud and deceit?
III. Whether there was sufficient proof on the issue of damages to support the verdict and judgment, or whether the jury was allowed to speculate or guess?
IV. Whether the appellees failed to take appropriate action to prevent their alleged damages in breach of their contractual and legal duties which, under proper instructions, the jury should have had an opportunity to decide?
V. Whether there existed sufficient contacts with Kentucky by the appellant to confer jurisdiction by this court pursuant to KRS 454.210?
On the first issue he maintains that the trial court's Instruction No. 2, Question No. 3 was improper in that it did not correctly set forth the requirements of the law or proof by which his conduct should have been measured. This instruction provided:
Question No. 3: Do you believe from the evidence that subsequent to June 27, 1972, the defendant, James W. Johnson, caused or knowingly participated in or knowingly condoned the taking, selling, or disposing of money or property belonging to Central Vending Company with the intent to avoid the payment of mortgages on such property, or to cheat, hinder or delay the creditors of Central Vending Company, including the plaintiff? (Emphasis added.)
It is appellant's contention that the trial court's use of the word, "condoned," in this instruction erroneously allowed the jury to reach a verdict without its finding that he had wrongfully, willfully, unlawfully and intentionally committed affirmative acts to the detriment of the appellees, contrary to the pleadings and offered proof.
Appellant's tendered instruction as to this issue required the jury to believe from the evidence that he
wrongfully, willfully, maliciously, unlawfully did sell or otherwise dispose of the money and physical assets of Central Vending Company . . . with the fraudulent intent to cheat, hinder . .
Appellees' complaint, as amended, had alleged omitted as well as overt fraudulent acts by Johnson against the appellees, and in any event proof was introduced at trial as to Johnson's omitted acts during his tenure as executive vice-president of the company without objection. But for the use of the word, "condoned," those instructions tendered by appellant do not differ substantially from those given by the court, and we find no objection by appellant at trial, or tendered instruction, that could be said to make reasonably clear to the trial court what the appellant had in mind as to his objection to the use of the word, "condoned." See CR 51 and Palmore, Kentucky Instructions to Juries, Vol. 2 § 13.11 and § 13.15.
While appellant did not preserve any assignment of error as to this instruction, we determine that the instruction, as given, was not likely to mislead the jurors in that it was clear that appellant's condoning of the acts of another had to be done both with his knowledge of those acts and with his intent to avoid the payment of mortgages or to cheat, hinder or delay creditors, including the appellees. Contrary to appellant's assertions, fraud and deceit are not limited to active or affirmative acts when the circumstances surrounding a transaction impose a duty or an obligation upon one of the parties to disclose material facts known to him and not known to the other party. Hall v. Carter, Ky., 324 S.W.2d 410 (1959).
The second issue is that while Mr. Henry was shown to be the perpetrator of certain acts that could have substantially impaired appellees' rights, appellant's direct involvement in fraud or deceit was never *27 shown. We note that it is not necessary that direct evidence of fraud be adduced and that fraud may be established by evidence which is wholly circumstantial. 37 C.J.S. Fraud § 115; and Campbell v. First National Bank of Barbourville, 234 Ky. 697, 27 S.W.2d 975 (1930). The courts of this Commonwealth have long recognized that "[p]arties contemplating the commission of fraud do not usually blow a horn or beat a drum to call attention to what they are doing," and have accordingly held that frauds may be established by circumstances. Bolling v. Ford, 213 Ky. 403, 281 S.W. 178 (1926). Further, even though each bit of circumstantial evidence in and of itself may seem trivial and unconvincing, the combination of all the circumstances considered together may be decisive in a given case of fraudulent design. 37 C.J.S. Fraud § 115. We have studied the entire transcript and determine that sufficient evidence of appellant's participation was produced to support the jury's verdict. Simply, there was evidence of appellant's being advised that machines and money were being taken and that payments were not being made upon the company's indebtedness, in accordance with agreements between the parties, and the jury did not believe appellant's testimony to the effect that he did not know what was going on around him. There were issues of material facts presented in this case requiring submission to a jury, and under such a circumstance, where certain testimony must be believed and other testimony must consequently be rejected, we are most hesitant, even if we were so inclined, to substitute our surmise for the findings of a jury. Lemaster v. Caudill, Ky., 328 S.W.2d 276 (1959).
Appellant's third argument is that there was insufficient proof on the issue of damages to support the jury's verdict. His reference to Spencer v. Woods, Ky., 282 S.W.2d 851 (1955); Sanford Construction Co. v. S & H Contractors, Inc., Ky., 443 S.W.2d 227 (1969); Roadway Express, Inc. v. Don Stohlman & Assoc., Inc., Ky., 436 S.W.2d 63 (1969); and Commonwealth, Department of Highways v. Jent, Ky., 525 S.W.2d 121 (1975), are unconvincing. As a general rule, the measure of damages for fraud is the actual pecuniary loss sustained, and one injured by the commission of fraud is entitled to recover such damages in a tort action as would place him in the same position as he would have occupied had he not been defrauded. 37 Am.Jur.2d Fraud and Deceit § 342; and Sanford Construction Co., supra. All recoverable damages are subject to some uncertainties and contingencies, but it is generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of damage and not as to its amount. Where it is reasonably certain that damage has resulted, mere uncertainty which prevents a recovery is uncertainty as to the amount does not preclude one's right of recovery or prevent a jury decision awarding damages. 22 Am. Jur.2d Damages § 23 and § 25; Kellerman v. Dedman, Ky., 411 S.W.2d 315 (1967); and Roadway Express, supra.
Appellant argues that there was no evidence of numbers of equipment or amounts allegedly taken by him that was ever presented to the jury and that in substance the evidence was confusing and based upon guesswork and speculation. We determine that in this case the trial court correctly permitted the introduction of testimony having a broad, but not unreasonable, evaluation as to the numerous pieces of equipment and vehicles that had been disposed of from the business from the date of the sale in June 1972 to the date of the collapse of the business in May 1973. The court permitted the testimony of experienced parties, giving a range in values as to the worth of various machines or equipment. The jury's verdict was for the amount of appellees' collateral note to Central Bank but this, of itself, does not reduce the case to one of a promissory note as to an action sounding in fraud and deceit since the verdict was within the limits of the proof.
Appellant's fourth contention is that the trial court improperly refused his tendered instruction to the effect that Mr. Cormney had a duty to exercise reasonable business judgment commensurate with his *28 skill and experience in overseeing and directing the business affairs and operation of Central Vending Company to prevent failing circumstances. We disagree and find appellant's citations distinguishable. A high degree of frankness and fair dealing was required in this buy-sale arrangement, and the appellee could not be charged with a lack of diligence in failing to make an independent investigation under the facts of this case. 37 Am.Jur.2d Fraud and Deceit § 254. Additionally, there was no evidence to support such an instruction since Mr. Cormney had relinquished control of the company, and his son had been fired the day after the sale. On occasion, prior to the collapse of the business, Mr. Cormney and his son did make business inquiries, and the son, according to his own testimony, was thrown out of the building. Mr. Cormney, however, was reassured that the money was being properly applied and was told not to worry.
As to appellant's fifth issue, we find sufficient contacts with Kentucky by the appellant existed to confer jurisdiction, pursuant to KRS 454.210(2)(a).
It should be noted that early in this appeal the appellees moved to dismiss this appeal for failure to properly designate the judgment appealed from in the notice of appeal. CR 73.03. The notice stated that the appeal was taken "from the final judgment entered by this court on the 4th day of May, 1978." May 4 was the date of entry of an order overruling a motion for a new trial. The final judgment had actually been entered on March 13, 1978.
Sitting en banc, this Court overruled the motion to dismiss stating that the appellant had complied with CR 73.03 by using the words "final judgment" and that the date of the judgment was not an essential element of the designation in cases where all issues were settled by a single judgment. Judges Hayes, Lester, and White dissented from that holding.
The opinion and order on the motion to dismiss also contained a ruling dismissing the appeal in Adams v. Commonwealth. The opinion and order was originally designated to be published, but because discretionary review was granted in Adams v. Commonwealth,[1] it appears that our opinion and order should not be published and cannot be cited as authority. CR 76.28(4)(c). Discretionary review was sought in this appeal but was denied because the case was still pending in this Court. Our holding is restated here for the information of the bar and to make it clear that our opinion and order of December 22, 1978, in this appeal can no longer be cited as authority.
The judgment is affirmed.
All concur.
NOTES
[1] See Foremost Insurance Co. v. Shepard, Ky., 588 S.W.2d 468, (1979).
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596 S.W.2d 605 (1980)
Clinton MANGES, Appellant,
v.
ASTRA BAR, INC., Appellee.
No. 1457.
Court of Civil Appeals of Texas, Corpus Christi.
February 21, 1980.
Rehearing Denied March 6, 1980.
*607 Max J. Luther, III, Barnhart & Luther, Corpus Christi, for appellant.
Donald R. Sallean, Houston, for intervenor.
Roger M. Dreyer, Perkins, Dreyer & Rather, Gonzales, for appellee.
OPINION
NYE, Chief Justice.
This is an appeal from a summary judgment for the plaintiff, Astra Bar, Inc. [Astra Bar], in a suit on a promissory note. Clinton Manges [Manges], the maker of the note, appeals.[1]
Astra Bar filed suit on April 28, 1978, against Manges, seeking to recover the past due principal and interest on a promissory note executed by Manges on September 20, 1977, payable to Astra Bar on or before six months from the date of issuance, in the original principal sum of $631,175.60, and for attorney's fees. Astra Bar also sued Joe C. Schero, an accommodation endorser, and Ronald B. Truitt, the trustee of the security agreement which granted Astra Bar a security interest in certain described property to secure payment of the note. Astra Bar prayed for a joint and several judgment against the defendants. Copies of the note and the security agreement were attached to plaintiff's sworn petition.
*608 Manges filed a general denial. Thereafter, on June 16, 1978, Astra Bar filed a motion for summary judgment which alleged there was no genuine issue of fact to be decided as to the issue of liability and the amount owed on the note. The motion was supported by the sworn statement of H. David Christian, President of Astra Bar. Certified copies of the note and security agreement were attached to plaintiff's motion. Manges filed a response in the nature of a sworn statement from one of Manges' employees which generally alleged that material issues of fact were present; that the sum prayed for was incorrect; and that all offsets and credits had not been allowed.
Eight days prior to the summary judgment hearing (July 13, 1978), Southwestern Mud, Inc. [Intervenor] filed a petition in intervention against Astra Bar, alleging that Astra Bar, as consignor, and Intervenor, as consignee, had executed a consignment contract on March 1, 1976. Intervenor alleged that the terms of the contract required Astra Bar to remit certain commissions to Intervenor for sales of Astra Bar's drilling mud, and that
"[d]uring the year 1976, Intervenor performed its obligations under said contract and made various sales of drilling mud to purchasers on behalf of [Astra Bar] and became entitled to commissions from [Astra Bar] now aggregating the sum of $104,170.72."
Intervenor also alleged that its claim for commissions "arises out of and is related to the same series of transactions" upon which Astra Bar's claim against Manges is based, and that Astra Bar's claim against Manges is upon a note given by Manges in payment of an open account for sales of drilling mud to Manges which were "carried out" by Intervenor, as Astra Bar's distributor. In accordance with all of these allegations, Intervenor prayed for judgment over against Astra Bar for its share of the unpaid commissions. A copy of Intervenor's contract was attached to the petition.
On July 20, one day before the scheduled summary judgment hearing, Manges' attorney filed a "first motion for continuance," which requested that the summary judgment hearing be "reset for some time in the future" when he could be present. In support of this request, the motion alleged the following grounds: 1) that the attorney had a conflict in trial settings and that he had a three-day criminal felony case scheduled to commence on July 19, 1978; and 2) that, on July 17, 1978, he had received the petition in intervention, and due to the pretrial preparation required in the criminal case, the attorney,
". . . has not had sufficient time to determine this recent pleading's effect, if any, to include additional defenses on the behalf of [Manges]."
The following day (July 21, 1978), Manges, (without leave of the court), filed his "second answer" to appellee's motion for summary judgment. This answer alleged:
"That the sums claimed by [Astra Bar] to be due and owing are not, in fact, due and owing, as for the reason that [Astra Bar] executed an agreement with Southwestern Mud Co., Inc., whereby the said Southwestern Mud Co., Inc., would receive a 50% commission of the gross profit of 50% computed from the [Astra Bar's] published price at its warehouse, and therefore [Astra Bar] [has] overcharged [Manges] by at least $104,170.72, which should be deducted from the sums sued upon by [Astra Bar], and therefore the sums sued upon by [Astra Bar] are not correct."
Manges also alleged in essence that all adjustments and counterclaims have not been deducted from the amount Astra Bar sued upon and that a material fact exists between the parties, thus precluding summary judgment. In support of this "second answer," an affidavit (made on personal knowledge by one of appellant's employees) repeated verbatim the allegations contained in the answer.
In spite of the motion for continuance filed the previous day, Manges' attorney appeared on July 21 for the summary judgment hearing as scheduled because his prior trial conflict had been resolved. At the time of this hearing, two issues were argued *609 by counsel for the respective parties before the trial court. The first issue was whether or not Astra Bar was entitled to a summary judgment; and, the second, concerned the disposition of Manges' motion for continuance. The substance of Manges' position was that Manges thought he had dealt solely with Astra Bar and that he had no knowledge prior to the intervention petition of the existence of the consignment contract between Southwestern Mud and Astra Bar, and that a continuance should be granted to allow Manges the opportunity to depose "several parties" in order to "determine what has occurred," and whether Manges had any defenses on the note that could be asserted against Astra Bar.
Counsel for Astra Bar argued, on the other hand, that the pleadings of Southwestern Mud showed that its claim for unpaid commissions was a claim asserted against Astra Bar alone, and as such, was immaterial as to Astra Bar's suit against Manges on the note.
After the hearing, the trial judge took the case under advisement and requested the respective parties to submit additional authorities within ten days. Fourteen days later (August 4, 1978), the trial judge signed an order granting Manges' additional request to file an "amended answer" and a "supplemental response" in opposition to Astra Bar's motion for summary judgment on the ground that Southwestern Mud's petition in intervention introduced new issues into the case regarding the relationship of Intervenor and Astra Bar.
In his "supplemental response" to appellee's motion for summary judgment, Manges made certain allegations "upon information and belief," based upon the allegations contained in the petition of intervention. Manges "supplemental response" stated in part:
"[I]f the allegations of the Intervenor and [Astra Bar] are viewed in the light most favorable to [Manges], it would appear that [Manges] issued his Promissory Note to whom [Manges] owed no debt, but the amount of the Promissory Note is not correct, or that the principal amount of the Promissory Note is not correct in that a portion of the principal amount is owed to the Intervenor."
Manges also alleged that, if summary judgment were to be granted in favor of Astra Bar, Manges would be subject and remain vulnerable to be sued by the Intervenor for the same debt which is the subject of this suit.
In addition to his "supplemental response" to Astra Bar's motion for summary judgment, Manges filed an amended answer, a cross-action to Astra Bar's suit and a second motion for continuance. The amended answer alleged in substance that: 1) the "promissory note is incorrect" because part of the principal amount is owed to the Intervenor and therefore, there is a "complete and/or partial failure of consideration" for the issuance of the note; and 2) agent or employees made material misrepresentations concerning the prices for drilling mud which they quoted to Manges, which Manges relied upon, causing him to purchase mud from Astra Bar on an open account and to execute the note in question. In accordance with these allegations, Manges prayed that the note be cancelled and that he be awarded actual and punitive damages.
The second motion for continuance alleged that in light of the intervention petition, he had not had sufficient time to discover facts which would constitute defenses to Astra Bar's suit on the note or to its motion for summary judgment. The motion further stated that Manges desired to take the deposition of the Intervenor to determine whether Astra Bar "is holder in due course of the note in question, or whether [Astra Bar] has committed any act which constitutes real or personal defenses [which Manges could assert] to [Astra Bar's] cause of action." In accordance with these allegations, Manges prayed that his motion be granted prior to the trial court's ruling on Astra Bar's motion for summary judgment and that the hearing on the summary judgment be reset until he had a "reasonable time" to take Intervenor's deposition.
*610 On August 10, 1978, the trial court entered a partial summary judgment in favor of Astra Bar as to Manges' liability on the note. A month later, the trial court granted Astra Bar's plea in abatement and dismissed Intervenor from the lawsuit. Then, after hearing evidence concerning Astra Bar's claim for attorney's fees, the trial court entered a final judgment awarding Astra Bar recovery of the unpaid principal and interest due on the note, foreclosing the deed of trust, and awarding attorney's fees. Manges appeals.
In passing upon the points raised in this appeal, we are guided by the familiar rules established by our Supreme Court concerning summary judgments. To be entitled to a summary judgment, the movant has the burden of establishing that there exists no material fact issue and that he is entitled to a judgment as a matter of law. Town North Nat. Bank v. Broaddus, 569 S.W.2d 489, 494 (Tex.Sup.1978); Mitchell v. Baker Hotel of Dallas, Inc., 528 S.W.2d 577 (Tex.Sup.1975); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.Sup.1970). If the party opposing the motion relies upon an affirmative defense to defeat the motion, he has the burden to come forward with summary judgment evidence sufficient to raise an issue of fact with respect to such affirmative defense. Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 381 (Tex.Sup.1978); Town North Nat. Bank v. Broaddus, 569 S.W.2d 489, 494 (Tex.Sup. 1978); Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.Sup. 1974). Affidavits supporting or opposing the motion must set forth facts that would be admissible in evidence. Conclusions of the affiant, having no probative value, are insufficient to raise an issue of fact. Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 382 (Tex.Sup.1978); Hidalgo v. Surety Savings and Loan Association, 487 S.W.2d 702 (Tex.Sup.1972); Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.1967).
In his first two points of error which are grouped together for the purposes of argument, Manges complains that the trial court erred in granting Astra Bar's motion for summary judgment because there exist genuine issues of fact concerning: 1) the amount Manges owes Astra Bar pursuant to the terms of the promissory note and 2) whether or not the promissory note fails for partial failure of consideration. Astra Bar argues, on the other hand, that the statements contained in the affidavits filed by Manges in opposition to the motion for summary judgment are mere conclusions which are insufficient to raise a fact issue and that Manges' affidavits are fatally defective because they were not properly sworn to upon personal knowledge. We agree.
To substantiate his claim that an issue of fact was raised concerning whether or not Manges owed the entire amount evidenced by the promissory note, Manges relies upon the portion of his own affidavit and the affidavits of Albert Cole and Morris Ashby, which state that "all off-sets, adjustments and counterclaims have not been deducted from the sums sued upon by [Astra Bar] and [Manges] has not been credited therefor." These statements are almost identical to a statement recently rejected by our Supreme Court as insufficient to raise a fact issue because it was a mere conclusion. See Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 381-82 (Tex. Sup.1978). We hold that the statements upon which Manges relies are mere conclusions and are insufficient to raise an issue of fact that Astra Bar failed to credit all offsets and payments on the note. Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 381-82 (Tex.Sup.1978). See Garza v. Allied Finance Co., 566 S.W.2d 57, 61 (Tex. Civ.App.Corpus Christi 1978, no writ); Smith v. Crockett Production Credit Association, 372 S.W.2d 956 (Tex.Civ.App.Houston 1963, writ ref'd n. r. e.). Appellant's first point of error is overruled.
Manges also contends that the affidavit of employee Morris Ashby raised a genuine issue of fact concerning the defenses of partial failure of consideration and fraud. That portion of the affidavit upon which Manges relies states:
"The sums sued upon by [Astra Bar] and claimed to be due and owing in this cause *611 are not due and owing, for the reason that [Astra Bar], without the knowledge of [Manges] agreed to pay to [Intervenor] 50% of the gross profit computed from [Astra Bar's] published price at its warehouse, and thereby by fraud effectively doubled the price charged to [Manges] in the amount of at least $104,170.72, and therefore, the sums sued upon by [Astra Bar] are not correct."
Astra Bar, on the other hand, says that the above statement is hearsay as to it and amounts to nothing more than conclusions which are insufficient to raise an issue of fact.
It is well settled that pleading an affirmative defense will not, of itself, defeat a motion for summary judgment by a plaintiff whose proof conclusively establishes his right to an instructed verdict if no proof were offered by the defendant in a conventional trial on the merits. Nichols v. Smith, 507 S.W.2d 518 (Tex.Sup.1974). In order to avoid a summary judgment on the ground that the opponent has an affirmative defense, the summary judgment evidence must raise a fact issue on each of the elements of his affirmative defense. Hagar v. Texas Distributors, Inc., 560 S.W.2d 773 (Tex.Civ.App.Tyler 1977, writ ref'd n. r. e.); Motheral v. Motheral, 514 S.W.2d 475 (Tex.Civ.App.Corpus Christi 1974, writ ref'd n. r. e.). Manges contends that his summary judgment evidence raised the issues of partial failure of consideration and of fraud. We do not agree.
In order to constitute actionable fraud, there must be evidence that shows: 1) that a material misrepresentation of fact was made; 2) that it was false; 3) that, when the speaker made it, he knew it was false, or that he made it recklessly without any knowledge of its truth and as a positive assertion; 4) that he made it with the intention that it should be acted upon by the party; 5) that the party acted in reliance upon it; and 6) that he thereby suffered injury. Custom Leasing, Inc. v. Texas Bank & T. Co. of Dallas, 516 S.W.2d 138, 143 (Tex.Sup.1974); Oilwell Division, United States Steel Corp. v. Fryer, 493 S.W.2d 487, 490 (Tex.Sup.1973); Sawyer v. Pierce, 580 S.W.2d 117, 124 (Tex.Civ.App.Corpus Christi 1979, writ ref'd n. r. e.). The misrepresentation must relate to a material fact. In order to show materiality, proof must be made that the misrepresentation induced the complaining party to act. Sawyer v. Pierce, 580 S.W.2d 117, 124 (Tex.Civ. App.Corpus Christi 1979, writ ref'd n. r. e.). See Putnam v. Bromwell, 73 Tex. 465, 11 S.W. 491 (Sup.1889); 25 Tex.Jur.2d, Fraud & Deceit, § 15, p. 630 (1961).
The affidavit of Morris Ashby falls far short of raising factual issues on each and every element necessary to constitute fraud. There is no evidence that Astra Bar made a misrepresentation of material fact which induced Manges to purchase the drilling mud or to execute the note in payment thereof. See Candela v. Steidle, 457 S.W.2d 461, 464 (Tex.Civ.App.Corpus Christi 1970, writ ref'd n. r. e.). There is nothing in the record to suggest that the transactions between Manges and Astra Bar giving rise to the note were anything other than an arms-length purchase and sale of the drilling mud.
Even if we were to assume that the contract between Astra Bar and the Intervenor was properly before the trial judge for his consideration during the summary judgment hearing, such contract, on its face, shows that it was merely a consignment contract whereby Intervenor received compensation for its services to Astra Bar. See Winship, The "True" Consignment under the Uniform Commercial Code, and Related Peccadilloes, 29 S.W.L.J. 825 (1975). The express terms of the contract required Astra Bar to do all of the "billing, invoicing, and disbursing of funds on materials sold or delivered by [Intervenor]." Fraud is never presumed. Unless all of the elements of fraud are alleged and proved, the presumption is in favor of the transaction. Turner v. Lambeth, 2 Tex. 365 (Sup.1847); Hawkins v. Campbell, 226 S.W.2d 891 (Tex.Civ. App.San Antonio 1950, writ ref'd n. r. e.).
For many of the same reasons, the summary judgment evidence also fails *612 to establish the affirmative defense of partial failure of consideration. Such a defense presupposes that there was a consideration for the note in the first instance, but that it later failed. National Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691 (Sup.1935); Aetna Casualty & Surety Company v. Watson, 476 S.W.2d 868, 869 (Tex.Civ.App.Houston [1st Dist.] 1972, no writ). Manges presents no facts showing that he did not receive some of the drilling mud he purchased or that the drilling mud that he did receive failed to meet the standards of the agreement. Compare Whittenburg v. Cessna Finance Corp., 536 S.W.2d 444 (Tex.Civ.App.Houston [14th Dist.] 1976, writ ref'd n. r. e.). At most, Manges is complaining of a price charged for the drilling mud which included a commission to the distributor. As a general rule, courts do not concern themselves with the adequacy of consideration or the relative value of the property or services for which the note was given. Hall v. Fowler, 389 S.W.2d 730 (Tex.Civ.App.Dallas 1965, no writ); Chastain v. Texas Christian Missionary Soc., 78 S.W.2d 728 (Tex.Civ.App. El Paso 1935, no writ); 77 C.J.S. Sales § 23 (1952). See also Crumpler v. Humphries, 218 S.W.2d 215, 217 (Tex.Civ.App.San Antonio 1948, writ ref'd). Appellant's second point of error is overruled.
In his remaining point of error, Manges contends that the trial judge abused his discretion by refusing to grant Manges' motion for continuance. In support of his contention, Manges argues, in substance, that the pleadings and affidavits he filed on August 4, 1978, "indicated that there could exist a genuine issue of material fact considering the consideration" supporting the note in question, and therefore, the trial judge abused his discretion when he refused to give appellant time "to take the depositions of the parties" in the suit. Rule 166-A(f), Texas Rules of Civil Procedure, provides as follows:
"Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."
The request for a continuance pursuant to Rule 166-A(f) is a matter well within the trial court's discretion. The ruling will not be disturbed on appeal unless an abuse of discretion is shown. Enterprises & Contracting Co. v. Plicoflex, Inc., 529 S.W.2d 805 (Tex.Civ.App.Houston [1st Dist.] 1975, no writ); Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ.App.Amarillo 1968, writ ref'd n. r. e.). See Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1963).
In this case, Astra Bar filed suit against Manges in April and completed service of process in May. On June 9, Manges filed a general denial. Later in June, Astra Bar filed its motion for summary judgment and the hearing date on the motion was set for July 21. During all of the time prior to the summary judgment hearing date, Manges did not institute any discovery proceedings as to Astra Bar in order to inquire into the circumstances surrounding the sale of drilling mud. The plea in intervention seeking to recover alleged unpaid commissions pursuant to a contract between Intervenor and Astra Bar was filed against Astra Bar alone, and not against Manges.
At the summary judgment hearing, when the trial judge took the case under advisement, Manges orally requested an additional ten days time to submit further authorities to the court. This request was granted. Fourteen days later, Manges obtained leave of the court to file an amended answer and a supplemental response to Astra Bar's motion for summary judgment. Manges filed his second motion for continuance. The record does not show that such motion was ever drawn to the attention of the trial judge.
Manges' motion for continuance requests additional time to depose the Intervenor. It fails, however, to show any diligence to obtain the same information from Astra Bar. In addition, his motion for continuance fails to show that the evidence he *613 seeks to obtain is material. See Watson v. Godwin, 425 S.W.2d 424, 430 (Tex.Civ.App. Amarillo 1968, writ ref'd n. r. e.); Wilson Finance Co. v. State, 342 S.W.2d 117 (Tex. Civ.App.Austin 1960, writ ref'd n. r. e.). We are of the opinion that the trial judge did not abuse his discretion by failing to grant Manges' motion for continuance. Appellant's point of error three is also overruled.
The judgment of the trial court is affirmed.
OPINION ON MOTION FOR REHEARING
Manges has apparently abandoned all previous points of error, but now asserts a single new point on motion for rehearing. He now complains, for the first time, that the trial court erred in granting Astra Bar's motion for summary judgment because the affidavit of H. David Christian, filed in support of the motion, fails to affirmatively state that Manges executed and delivered the note in question. A certified copy of the note signed by Manges was included in the summary judgment evidence. The execution of the note or the genuineness of Manges' signature was not questioned by the pleadings or by the summary judgment evidence in opposition to the motion. This point was neither presented to the trial judge, nor was it assigned as a point of error to us on appeal. On the contrary, Manges' own appellate brief states, in relevant part, as follows:
"The facts are uncontroverted. On September 20, 1977, the Appellant Clinton Manges, issued his Promissory Note to Appellee, Astra Bar, Inc., in the principal amount . . ." (emphasis added.)
Appellant's motion for rehearing, having been considered by the Court is overruled. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.Sup.1979).
NOTES
[1] Joe C. Schero signed the note as an accommodation party. He prosecuted a separate appeal to this Court. See: Schero v. Astra Bar, 596 S.W.2d 613 (Tex.Civ.App.Corpus Christi 1980), handed down this day.
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2 S.W.3d 382 (1999)
In re WESTERN AIRCRAFT, INC.
In re Nozaki America, Inc., Relators.
Nos. 04-99-00001-CV, 04-99-00165-CV.
Court of Appeals of Texas, San Antonio.
June 23, 1999.
David M. Prichard, Laura Flores Macom, Jeffrey S. Hawkins, Ryan G. Anderson, Ball & Weed, P.C., San Antonio, Charles H. Smith, John W. Moore, April F. Robbins, Smith & Moore, L.L.P., Dallas, for appellant.
Michael J. Maloney, Maloney, Martin & Mitchell, L.L.P., Houston, Cynthia L. Muniz-Berain, Rodriguez & Muniz-Berain, P.C., Eagle Pass, Thomas R. Ajamie, David Mark Goldberg, Andrew C, Schirrmeister, Schirrmeister Ajamie, L.L.P., Houston, for appellee.
Sitting: ALMA L. LOPEZ, Justice PAUL W. GREEN, Justice KAREN ANGELINi, Justice.
OPINION
Opinion by: ALMA L. LOPEZ, Justice.
Relators are defendants in wrongful death and survivorship litigation stemming from a commercial airplane crash near Piedras Negras, Mexico. Real parties, the plaintiffs below, filed suit in Eagle Pass, Maverick County, Texas. As all of the plaintiffs are Mexican citizens, though some reside in Texas, and none of the defendants have their principal place of business in Texas, relators filed motions to *383 dismiss based on the doctrine of forum non conveniens. Alternatively, relators moved to apply Mexican law to the case. Following a hearing, the trial court denied Western Airlines's motion to dismiss and ruled that Texas law would apply. Two months later, the court ruled against Nozaki's similar motion. Both defendants filed separate petitions for writs of mandamus and this Court granted their motion to consolidate the proceedings.
The Standard of Review
To grant relief in this proceeding, the Court must find a clear abuse of discretion and that the relators do not have an adequate remedy on appeal. Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992). A review of Texas cases from 1991 to 1999 yields only three cases where the mandamus proceeding or the appeal dealt with the denial of a motion to dismiss for forum non conveniens. All found that the trial court had not abused its discretion to retain the litigation. The trial court has a great deal of discretion to retain a case over which it has personal and subject matter jurisdiction on its docket. See hi re Smith Barney, 975 S.W.2d 593 (Tex. 1998, orig. proceeding); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. App.-Houston [14th Dist.] 1995, orig. proceeding); Ismail v. Ismail, 702 S.W.2d 216 ((Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). Three other cases where the dismissal was granted have been reversed on appeal. These cases all arose prior to the Legislature passing a statute concerning this common law doctrine in 1993. See 21 International Holdings, Inc. v. Westinghouse Elec. Corp., 856 S.W.2d 479 (Tex. App.-San Antonio 1993, no writ)(disapproved in In re Smith Barney, supra); Exxon Corp. v. Choo, 881 S.W.2d 301 (Tex. 1994)(affirming court of appeals' reversal of dismissal); Sarieddine v. Moussa, 820 S.W.2d 837 (Tex. App.-Dallas 1991, writ denied).
In this proceeding, we do not find it necessary to engage in a complex analysis of the numerous factors a trial court considers in balancing the pros and cons of the choice of forum or the choice of law. We move, instead, to the second requirement for entertaining a mandamus petition, and find that relators have an adequate remedy on appeal.
The Adequacy of Appeal
Forum non conveniens presents a procedural matter akin to a venue ruling and incidental to the trial process. In American Dredging Co. v. Miller, the United States Supreme Court stated:
At bottom, the doctrine of forum, non conveniens is nothing more or less than a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined. But venue is a matter that goes to process rather than substantive rightsdetermining which among various competent courts will decide the case.
510 U.S. 443, 453, 114 S. Ct. 981, 127 L. Ed. 2d 285 (1994); see also Polaris Investment Management Corp. v. Abascal, 892 S.W.2d 860 (Tex.1995, orig.proceeding) (objection to venue ruling had adequate remedy by appeal); Montalvo v. Fourth Court of Appeals, 917 S.W.2d 1, 2 (Tex. 1995, orig.proceeding) (objection to expediting discovery schedule for venue hearing had adequate remedy on appeal).
To be entitled to a writ, relators must demonstrate that the adverse ruling on forum non conveniens places them in the position of permanently losing a substantive right. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994). Relators do not do so. They argue, instead, that Mexico provides a more proper forum. Nor do the cases relators cite on this issue demonstrate substantial rights loss in this case. CSR, Ltd. v. Link, 925 S.W.2d 591 (Tex.1996) and National Indus. Sand Ass `n v. Gibson, 897 S.W.2d 769 (Tex.1995) concern special appearance rulings, a matter of the court's personal *384 jurisdiction over a defendant. In this case, the relators either did not contest personal jurisdiction or waived their motion for special appearance. Moreover, these cases were decided before the 1997 statutory amendment, which created an interlocutory remedy other than mandamus when a trial court grants or denies a special appearance. When an interlocutory appeal is available, the "extraordinary circumstances" dictating mandamus relief from the denial of a special appearance usually will not be present if the interlocutory appeal is an adequate remedy. See Raymond Overseas Holding, Ltd. v. Curry, 955 S.W.2d 470, 471 ((Tex.App.-Fort Worth 1997).
In United Mexican States v. Ashley, 556 S.W.2d 784 (Tex.1977), the Mexican government was a party defendant in the underlying suit and sought to protect its sovereignty immunity through a mandamus proceeding. No Mexican governmental entity is a party defendant to the Maverick County suit and, although relators argued that Mexican sovereignty is at stake, we do not find such extraordinary circumstances demonstrated here. Western argued that, by treaty, the United States recognizes Mexico's control over its airspace and the regulation of its airline industry. Relators do not demonstrate how a judgment rendered by a Texas court in this case would have any effect at all on Mexico's airspace or its airline regulations.
Likewise, Western presents only conclusions that the trial court had no discretion when ruling on the choice of law. Although there is very little Texas law with which to analyze the adequacy of appeal on a choice of law ruling, we agree with the Houston Court of Appeals that this is another incidental ruling for which relators must seek their remedy by appeal. See Transportes Aereos Nacionales, S.A. v. Downey, 817 S.W.2d 393 ((Tex.App.-Houston [1st Dist.] 1991, orig. proceeding) (subsequent petition to Sup.Ct. dismissed).
The petitions of relators for mandamus relief are denied because they have failed to demonstrate an inadequate remedy on appeal. Real parties' motion for sanctions is denied.
Concurring opinion by: PAUL W. GREEN, Justice.
I concur in the outcome, but only very reluctantly. My concern is that relators actually have no adequate remedy by appeal.
In this mandamus action, the majority likens a forum non conveniens denial to a venue ruling. And the supreme court has repeatedly told us that the denial of motion to transfer venue is merely an incidental trial ruling which, if erroneous, is correctable on appeal. But see In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999). But when it is asserted that the proper forum is a foreign country, a trial court's erroneous denial of a motion to dismiss has much broader implications than a venue ruling. Appeal cannot be an adequate remedy when the case should not have to be tried at all.
When it is clear this country has no legitimate connection to events occurring in a foreign country, our courts should decline to accept jurisdiction of cases that arise out of those events.[1] There are virtually no facts in this case that favor invoking the jurisdiction of the federal or state courts in this country. A Mexican commercial airliner, whose pilot and passengers were all Mexican citizens, crashed in Mexico while on a flight between two Mexican cities. All the plaintiffs are Mexican *385 citizens and all the physical evidence and witnesses are located in Mexico. Relators are involved only to the extent that one is the owner and lessor of the aircraft and the other brokered the lease of the aircraft to the Mexican operator. Neither relator has its principal place of business in Texas.
In light of the above, relators make a good case that it was an abuse of discretion for the trial court to refuse to grant the motion to dismiss. It is fundamentally unfair to require these relators to defend themselves in a trial, even if successful. To have to wait for an appellate remedy simply compounds the unfairness. It is also unfair to the State and those litigants who rightfully seek relief in the Maverick County courts that scarce court resources will be needlessly preempted, and to those hard working citizen-jurors of Maverick County who will be required to sit through a lengthy and complex case that has no relationship at all to their community or their country.
Without relief, relators will also be subject to extraordinary difficulty and undue expense associated with trying to prepare a case for trial in this country in connection with events that occurred in another country. While it is conceded that some cases may go to trial under these circumstances, I daresay those cases do not involve matters and issues as remote to the forum as exist in this case.
Nonetheless, the legislature has not provided an interlocutory appeal for the denial of a forum non conveniens motion to dismiss; mandamus is the only possible avenue of interlocutory relief. And because the supreme court has indicated that in mandamus actions forum non conveniens cases should be treated like venue cases, the majority denies relief on the basis that there is an adequate remedy by appeal.
I concur in the majority's ruling only because I feel constrained by what appears to be the supreme court's intent on the issue. If relief is to be afforded to these relators or future litigants facing similar facts, the supreme court or the legislature will have to provide the mechanism.
NOTES
[1] As Justice Hecht has noted: "The rule of forum non conveniens, properly used, does not prohibit a court from entertaining a case it ought to hear. Rather, it protects courts from being compelled to hear cases when doing so would be fundamentally unfair to the defendants or the public or both." In re Smith Barney. Inc., 975 S.W.2d 593, 598 (Tex. 1998)(quoting from his dissent in Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 707 (Tex. 1990)).
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8 F.2d 223 (1925)
LUCKENBACH S. S. CO.
v.
CAMPBELL.[*]
No. 4648.
Circuit Court of Appeals, Ninth Circuit.
October 19, 1925.
Erskine Wood and Gunther F. Krause, both of Portland, Or., for appellant.
W. K. Royal and M. B. Meacham, both of Portland, Or., for appellee.
Before GILBERT, RUDKIN, and McCAMANT, Circuit Judges.
RUDKIN, Circuit Judge.
As the steamship F. J. Luckenbach was proceeding up the Columbia river to Portland, Or., one Campbell, a seaman on board, was ordered by his superior officer to sweep out and clean up the lower decks in the No. 2 hold, in company with other seamen, preparatory to taking on cargo. As Campbell was proceeding to the place in question, he fell through No. 4 hatch, receiving injuries from which he died on the following day. A libel was thereupon filed in the court below by the administrator of his estate against the Luckenbach Steamship Company to recover the resulting damages. The libel charged that the death was caused solely through the negligence and carelessness of the respondent, its officers and agents, in permitting the hatchway to remain open, unguarded, and uncovered between ports, in failing to warn Campbell of the danger of such opening, in failing to furnish sufficient light, in failing to place any railing or guard at or near the hatch to prevent the deceased from falling therein, and in failing to furnish a safe place to work. Upon the final hearing, the court below found that the respondent was negligent as charged, and awarded damages in the sum of $5,000. From the final decree, the present appeal is prosecuted.
The action was based on section 20 of the Act of March 4, 1915 (38 Stat. 1185), as amended by section 33 of the Act of June 5, 1920 (41 Stat. 1007 [Comp. St. Ann. Supp. 1923, § 8337a]), and the first assignment *224 of error challenges the applicability of that statute to the facts before the court. This question has been answered adversely to the contention of the appellant by the Supreme Court in Panama R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748. Under the remaining assignments of error, the appellant contends that the charges of negligence on its part are not sustained by the testimony, that the deceased was guilty of contributory negligence, and that the award of damages is excessive. In discussing the question of negligence, the court below said:
"So far as the negligence of the company was concerned, it seems to me that very clearly appears from the testimony, and it is not necessary to state in detail the testimony in reference to the matter."
There was ample testimony tending to prove that the working place was unnecessarily dark and dangerous, and whether the appellant, the deceased, or his fellow servants were responsible for that condition was a question of fact for the determination of the court below. The findings of that court, based as they were on competent testimony, will not be disturbed on appeal, in the absence of some plain or obvious error, and none such is here apparent. The only remaining assignment goes to the amount of the recovery. In discussing that question, the court below said:
"The only question I have had any doubt about was the amount of the recovery. It is a difficult and delicate matter always to undertake to fix the pecuniary compensation for the life of an individual. In this case the deceased was about 30 years old. He had a rather unsavory criminal record; he had been arrested and convicted several times for burglary and robbery, and had been arrested several times for vagrancy, and was addicted more or less to the use of narcotics. He does not seem to have been a young man who was industrious but, on the contrary, seems to have been rather a wanderer, and involved in difficulties in the various communities where he resided. The only evidence of his earning capacity given on the trial was a report of the master of the vessel made to this court in obedience to the law governing deceased seamen, in which it is said that his salary was, I believe, $40 a month, and I assume his board and lodging were in addition to that. So that, while I hesitate to fix the amount, it seems to me that under all the circumstances $5,000 is a fair amount to be fixed as damages in this case, and it will be so allowed."
If the recovery must be limited to the pecuniary loss to the estate, the allowance would seem liberal, to say the least, but the statute on which the action was based is a survival statute, under which there may be a recovery for pain and suffering. St. Louis & Iron Mt. Ry. Co. v. Craft, 237 U. S. 648, 35 S. Ct. 704, 59 L. Ed. 1160. In view of that fact, and taking the two elements of damage into consideration, it cannot be said that the amount of the recovery is excessive, or is so excessive as to justify interference by an appellate court. There seems to be some contention that no reference was made in the libel to any statute, but this is wholly unnecessary. The pleader must plead his facts, and, when he does so, he may invoke the protection of the common law, or of any applicable statute.
The decree is affirmed.
NOTES
[*] Rehearing denied November 9, 1925.
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596 S.W.2d 291 (1980)
James P. BAILEY, Appellant,
v.
William R. TRAVIS, Appellee.
No. 13075.
Court of Civil Appeals of Texas, Austin.
March 5, 1980.
Rehearing Denied April 2, 1980.
*292 Ray Fisher, Fisher & Ashby, Austin, for appellant.
David W. Hilgers, Hilgers, Watkins & Hays, Austin, for appellee.
SHANNON, Justice.
Appellee William R. Travis sued appellant James P. Bailey for attorney's fees in the district court of Travis County. Appellee, an attorney, claimed that he was due his fee for services he had rendered appellant, his former client, for preparation and trial of a lawsuit in Bastrop County. After jury trial, judgment was entered for appellee. We will affirm the judgment.
Appellant and appellee had entered into a written contract for appellee to represent appellant in the Bastrop County lawsuit. A copy of the contract was admitted in evidence without objection. Among other things, appellant agreed in the contract to pay appellee fifty dollars for each hour spent on the cause. A disputed fact issue concerned the number of hours that appellee had expended on the preparation and trial of the cause. The district court submitted the question to the jury by special issue number one:
"Find from a preponderance of the evidence the number of hours, if any, which were necessary and reasonable on the part of [appellee] in the proper preparation and trial of [the Bastrop County lawsuit]."
The court's submission of special issue one is the foundation for appellant's points of error two and three. Point of error two is that the district court erred in submitting special issue one ". . . without more, because that issue failed to place before the jury the controlling issues raised by the pleadings and the evidence." Appellant's objection to special issue one was that ". . . the evidence and pleadings in this case clearly raise the issue of the terms of the contract between [appellee] and [appellant], and whether under the terms of that contract any sums are now due and owing to [appellee] by [appellant]. The issue as presented does not submit that fact issue to the Jury."
It is doubtful that appellant has pointed out distinctly the grounds of his objection. Tex.R.Civ.P. 274. "An objection must identify the defect at which it is aimed, the respect in which the issue is alleged to be defective, and why." Hodges, Special Issue Submission in Texas, § 62 (Supp.1969). Assuming, arguendo, that the basis for appellant's objection was properly stated, this Court is of the view that the objection does not state any ground for reversal of the judgment. Contrary to the suggestion in appellant's objection, it is not the function of the trier of fact to determine "the terms of the contract" between the parties. The contract was admitted in evidence without objection, and its construction, if necessary, was for the court. Appellant did not plead and did not request special issues submitting any affirmative defenses to the parties' contract. As the case was tried, the jury's only role was to determine the amount of time appellee expended in preparing and trying the Bastrop County lawsuit. It was the district court's task to ascertain the sum due appellee by applying the hourly rate set by the contract to the number of hours the jury found appellee spent in the preparation and trial of the lawsuit. Point of error two is overruled.
Appellant by point of error three complains that the district court erred in refusing to submit appellant's requested special issue since it "properly submitted the controlling issues raised by the pleadings and the evidence." The requested issue reads as follows:
"What sum of money, if any, do you find from a preponderance of the evidence is now owing to [appellee] by [appellant] for services rendered and furnished by [appellee] to [appellant] and accepted by [appellant]?"
The proper method to complain of the trial court's submission of a defective *293 special issue is by objection, and a request for submission of an issue, even in correct form, will not preserve the complaint. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (1951); Tex.R.Civ.P. 274; Hodges, Special Issue Submission in Texas, §§ 69, 70 (Supp.1969). Point of error three is overruled.
Appellant's final point of error is that the district court erred in overruling his motion for continuance. Appellee filed suit on May 18, 1978, and obtained a setting for trial for January 15, 1979. Appellant engaged in no discovery until about five weeks before the trial setting. On December 7, 1978, appellant propounded Rule 168 interrogatories to appellee. Appellee filed his answers to the interrogatories on January 10, 1979.
As one basis for his motion for continuance, appellant claimed that appellee's responses to the interrogatories were "incomplete and/or inadequate in several respects." As a result, appellant maintained that further discovery might be required to prepare the case for trial.
"Matters of discovery are by their very nature pretrial devices designed to expedite and narrow the issues to be determined by a trial on the merits. The means of discovery should be utilized in a timely manner and should not be delayed until just before trial." Southwestern Bell Telephone Co. v. Griffith, 575 S.W.2d 92 (Tex.Civ.App. 1978, writ ref'd n. r. e.).
Appellant had ample time for discovery after the case was set for trial. Appellant did not employ the means for discovery in an orderly and timely manner. Appellant's delay in preparation for trial should not result in continuing the case. Under these circumstances, the district court did not err in denying the motion for continuance. The point of error is overruled.
The judgment is affirmed.
Affirmed.
SMITH, J., not sitting.
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123 N.H. 719 (1983)
THE STATE OF NEW HAMPSHIRE
v.
GEORGE BERTRAND
No. 82-285
Supreme Court of New Hampshire.
August 31, 1983.
*722 Gregory H. Smith, attorney general (Gregory W. Swope, attorney, on the brief and orally), for the State.
James E. Duggan, appellate defender, of Concord, by brief and orally, for the defendant.
DOUGLAS, J.
The defendant appeals his conviction in Superior Court (Goode, J.) of arson, RSA 634:1, I and II. He challenges his conviction on a number of grounds, including the argument that he *723 was denied due process and a fair trial when the trial judge failed, on his own initiative, to hold an evidentiary hearing during the trial on the defendant's competency. We reverse and remand.
On the morning of June 27, 1981, a fire broke out in the apartment of the defendant, George Bertrand, on the fourth floor of an old wooden apartment building on Pine Street in Manchester. More than half the residents of the apartment building were elderly. A tenant ran into the building manager's office to summon help to extinguish the fire. Maurice Bourgeois, the owner of the building, ran upstairs, broke into the defendant's apartment with a fire extinguisher, and put out the fire, but not before it destroyed the mattress and damaged the bed frame, walls, and floor of the apartment near the bed. When Bourgeois asked the defendant how the fire had started, the defendant said that he had started the fire because he had wanted to kill himself.
The defendant then went to the Manchester police station where he told Officer Paul Soucy, "I set my apartment on fire and I set my bed on fire with me in it." The defendant told Officer Soucy that he wanted to die and asked Soucy to kill him. After it was corroborated that a fire had occurred in the defendant's apartment, the defendant was arrested and charged with arson.
Prior to trial, the court ordered the defendant to undergo psychiatric evaluation, pursuant to defense counsel's request, in order to determine whether he was sane at the time of the fire and whether he was competent to stand trial. In a report dated December 11, 1981, Dr. Henry E. Payson, a psychiatrist and consultant to the New Hampshire Hospital, indicated that the defendant had a long history of mental illness, including twelve previous admissions to the State hospital. Dr. Payson stated that the defendant's medical records showed a variety of mental disorders characterized by periods of depression and delusions of having caused numerous important events, including the bombing of Pearl Harbor and "tragedies occurring to persons on television." Significantly, Dr. Payson also noted that the defendant "has frequently confessed to crimes known not to have taken place." According to this report, the purpose of these false claims was to draw attention to himself.
Based on his evaluation of the defendant, it was Dr. Payson's opinion that the defendant's "statement to the Manchester Police about his deliberate intent to set the fire is not reliable. Without additional evidence of an intentional act, only this unreliable statement appears to distinguish the act from that of an accidental fire setting." In conclusion, Dr. Payson stated that there was insufficient information to determine whether the defendant was insane at the time of the fire, but that he appeared to be competent to stand trial.
*724 In a much more abbreviated report dated March 10, 1982, Dr. Ralph Luce, who is also a psychiatrist, stated that there was no evidence that the defendant was insane at the time of the fire. Dr. Luce also was of the opinion that the defendant could cooperate with his attorney and aid in his own defense, and that he was therefore competent to stand trial.
The defendant was tried on the arson charge in May 1982. There is no evidence in the record that an evidentiary hearing was ever held on his competency to stand trial. At trial, the defendant initially testified that on the morning of the fire he had lain on his bed to smoke a cigarette and had fallen asleep. When he awoke, the room was filled with smoke. This testimony was consistent with what he had told the two psychiatrists during the psychiatric evaluations. Upon questioning by defense counsel, however, the defendant stated that he had "set" the fire.
Defense counsel immediately requested the trial judge to order another psychiatric evaluation of the defendant because "I'm of the opinion that he wants to be found guilty and he's just going along with the testimony he's heard this morning." The trial judge denied the motion, but with defense counsel's acquiescence instructed the jury to treat the defendant's admission as a "confession" which must be supported by substantial independent corroborating evidence to show its trustworthiness. See State v. Zysk, 123 N.H. 481, 487, 465 A.2d 480, 483 (1983); State v. George, 109 N.H. 531, 533, 257 A.2d 19, 20-21 (1969).
In an effort to explain the defendant's in-court admission and out-of-court admissions to Officer Soucy and the apartment building owner, the defense called to the stand Dr. Payson, who repeated much of the substance of his psychiatric evaluation report on the defendant, particularly the defendant's pattern of confessing to crimes he did not commit. On cross-examination, however, he conceded that the reliability of any confession by the defendant would depend upon whether the related circumstances and his conduct at the time corroborated the confession.
The jury found the defendant guilty of arson, a class A felony. After expressing "concern" about the defendant's mental state, the trial judge sentenced him to seven-and-one-half to fifteen years in the State prison, but requested the prison warden to transfer the defendant to an appropriate mental health facility. The defendant then took this appeal.
[1-3] Both the United States Supreme Court and this court have recognized that a criminal defendant has a constitutional right not to be tried if he is legally incompetent. Pate v. Robinson, 383 U.S. *725 375, 378 (1966); State v. Hayes, 118 N.H. 458, 462-63, 389 A.2d 1379, 1382 (1978). The defendant enjoys this fundamental substantive guarantee not to be tried if he is unable to "consult with his lawyer with a reasonable degree of rational understanding" or he does not have "a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960); State v. Stiles, 123 N.H. 680, 684, 465 A.2d 908, 911 (1983); see Roy v. Perrin, 122 N.H. 88, 94, 441 A.2d 1151, 1155 (1982). "To protect this guarantee a defendant also enjoys the procedural advantage that if sufficient doubt exists of his competency to stand trial the trial court must sua sponte inquire into his competency." Acosta v. Turner, 666 F.2d 949, 954 (5th Cir. Unit B 1982) (citing Pate v. Robinson, 383 U.S. 375, 385 (1966)). A court's failure under such circumstances to inquire as to the defendant's competency deprives him "of his constitutional right to a fair trial." Id. at 385.
[4] Pate spoke in terms of a "bona fide doubt" of a defendant's competency to stand trial, id. (italics in original). We hereby adopt the following standard under part one, article fifteen of the New Hampshire Constitution: Due process requires that a trial judge, on his own initiative, order an evidentiary hearing whenever a bona fide or legitimate doubt arises whether a criminal defendant is competent to stand trial.
[5, 6] In Drope v. Missouri, 420 U.S. 162 (1975), the Supreme Court, discussing the significance of Pate, stated that the criteria which a trial court should consider in determining whether a competency hearing is required include "evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competency to stand trial ...." Id. at 180. Once a bona fide doubt arises whether the defendant is competent to stand trial, Pate requires that an evidentiary hearing be held to determine the competency issue. Such a hearing, with the opportunity to introduce evidence, cross-examine witnesses, and have specific factual findings made on the record which may be reviewed on appeal, obviously comports with traditional notions of due process mandated by our State Constitution. See Pate v. Smith, 637 F.2d 1068, 1072 (6th Cir. 1981); cf. Stapleford v. Perrin, 122 N.H. 1083, 1088, 453 A.2d 1304, 1307 (1982) (defining due process rights in cases of delayed incarceration).
[7] Applying the foregoing principles to the instant case, we hold that the defendant was denied his rights to due process and a fair trial because of the trial judge's failure sua sponte to hold an evidentiary hearing on the defendant's competency to stand trial after the *726 defendant's unexpected admission on the witness stand. Dr. Payson's psychiatric evaluation report on the defendant indicated that he had had a long history of mental illness involving twelve prior admissions to the State hospital. See Pate v. Smith, 637 F.2d at 1070. The out-of-court admissions by the defendant that he intentionally set the fire fit the description of the type of behavior which Dr. Payson explained the defendant engaged in for the purpose of gaining attention.
[8] Even though both psychiatrists were of the opinion that the defendant was competent to stand trial, such expert opinions were merely evidence of competency. Because the trial court did not order a competency hearing, the defendant was denied the opportunity to challenge the basis for those opinions. Furthermore, the absence of a record containing specific findings precludes us from adequately reviewing the basis for the trial judge's implicit acceptance of the fact that the defendant was competent to stand trial. See id. at 1072; Tillery v. Eyman, 492 F.2d 1056, 1059 (9th Cir. 1974).
[9] Competency to stand trial, no less than dangerousness under our criminal-commitment statute, RSA 651:11-a (Supp. 1982), is a legal, and not a medical, concept. State v. Paradis, 123 N.H. 68, 71, 455 A.2d 1070, 1073 (1983); see State v. Stiles, 123 N.H. at 684, 465 A.2d at 911 (defining proper legal standard for determining competency). Trial judges must not be permitted to abdicate to psychiatrists their judicial responsibility to determine whether a criminal defendant is competent to stand trial. See State v. Hesse, 117 N.H. 329, 332, 373 A.2d 345, 347 (1977).
[10, 11] "Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial." Drope v. Missouri, 420 U.S. at 181. While the State has attempted to distinguish the cases cited by the defendant for this proposition, arguing that in those cases the defendants' conduct at trial was more egregious, we believe that the abrupt change in the defendant's testimony at trial in this case, in light of his medical history, should have raised a bona fide doubt in the trial judge's mind of the defendant's competency to stand trial. Even though defense counsel requested only a new psychiatric evaluation and acquiesced in the trial court's instruction on the corroboration requirement in lieu of such an evaluation, the trial judge had sufficient information at that time so that it was incumbent upon him to order an evidentiary hearing on the defendant's competency.
*727 [12] During the defendant's sentencing hearing, the trial judge himself expressed "concern" about the defendant's mental state, and requested the prison warden to seek appropriate psychiatric care for the defendant. The trial judge's statement is indicative of his doubt about the competency of the defendant. Providing treatment after trial does not relieve the trial court of its constitutional responsibility of holding a competency hearing before or during trial.
[13] Having concluded that the trial court erred in not holding a competency hearing, we must consider what relief is appropriate in this case. We note that only one year has passed since the defendant's trial. In similar circumstances, some courts have remanded the case for a determination "whether an adequate and meaningful nunc pro tunc inquiry can be made into the question of whether [the defendant] was incompetent at any time during the trial and pretrial proceedings." Acosta v. Turner, 666 F.2d at 956. We believe that the defendant in this case should receive a new trial, however. Otherwise, he would run the risk of an erroneous retrospective determination of competency in the absence of a record of a hearing on the competency issue at the time of his trial. But cf. State v. Stiles, 123 N.H. at 685, 465 A.2d at 911 (case remanded for retrospective determination of competency in light of fact that record existed of competency hearing at time of trial).
[14] Accordingly, we reverse the defendant's conviction and remand the case for a new trial. The defendant shall be entitled to an evidentiary hearing in conformity with this opinion, at which hearing the State shall have the burden of proving that the defendant is competent to stand trial. United States ex rel. Bilyew v. Franzen, 686 F.2d 1238, 1244 (7th Cir. 1982); Brown v. Warden, Great Meadow Correctional Facility, 682 F.2d 348, 349 (2d Cir.), cert. denied, 103 S. Ct. 349 (1982); United States v. DiGilio, 538 F.2d 972, 987-88 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977). But cf. Lokos v. Capps, 625 F.2d at 1262 (defendant bears burden of proof of incompetency at trial in collateral attack by habeas corpus petition); Roy v. Perrin, 122 N.H. at 94, 441 A.2d at 1155 (same regarding competency to plead guilty). The standard of proof shall be a preponderance of the evidence. Brown v. Warden, Great Meadow Correctional Facility, 682 F.2d at 353-54; United States v. DiGilio, 538 F.2d at 988. If the defendant is found to be competent, then a new trial may proceed.
[15] It should be noted that we perceive no inconsistency in placing upon the State the burden of proof that the defendant is competent at the time of trial and placing upon the defendant the burden *728 of proof that he was insane at the time of the offense. See Novosel v. Helgemoe, 118 N.H. 115, 125-27, 384 A.2d 124, 130-31 (1978). The United States Supreme Court has declined to construe the Federal Constitution as requiring the State to prove a criminal defendant's sanity, Patterson v. New York, 432 U.S. 197, 210 (1977); Leland v. Oregon, 343 U.S. 790, 797-99 (1952), whereas federal due process mandates that a defendant not be tried for an offense while he is mentally incompetent. Pate v. Robinson, 383 U.S. at 378 (citing Bishop v. United States, 350 U.S. 961, 961 (1956) (per curiam)).
[16-18] Similarly, this court has interpreted part one, article fifteen of our State Constitution as posing no obstacle to placing the burden on a defendant to prove his insanity. Novosel v. Helgemoe, 118 N.H. at 127, 384 A.2d at 131. Our criminal due process provision, however, requires that a defendant not be subject to criminal prosecution if he is not competent. State v. Hayes, 118 N.H. at 462-63, 389 A.2d at 1382. We believe that a necessary ingredient of that constitutional mandate is that the burden rest upon the State to prove the defendant's competency to stand trial. Nothing in this opinion should be read as deviating from our holding in Novosel v. Helgemoe placing upon the defendant the burden of proving the affirmative defense of insanity by a preponderance of the evidence.
[19] The circumstances of this case convince us that a prophylactic procedure is necessary whenever a defendant's competency to stand trial is put into question by virtue of a court order that he be given a psychiatric evaluation to determine competency.
Therefore, in the future whenever a trial court orders a criminal defendant to undergo psychiatric evaluation to determine such competency, such an order shall be deemed to reflect the existence of a bona fide doubt as to the defendant's competency. See Tillery v. Eyman, 492 F.2d at 1060 (Sweigert, J., concurring); Brizendine v. Swenson, 302 F. Supp. 1011, 1019 (W.D. Mo. 1969). Consequently, in such cases an evidentiary hearing must follow at which the defendant shall be entitled to present evidence and cross-examine witnesses. The trial court must make specific findings of fact on the record, and must state the evidence on which it bases its decision. These post-evaluation procedures thus will complement the specific pre-evaluation procedures required by this court in Novosel v. Helgemoe, 118 N.H. at 121-22, 384 A.2d at 128; see N.H. SUPER. CT. R. 102.
[20] In cases where the court does not order a pretrial psychiatric evaluation, the due process principles articulated in this opinion may nonetheless impose a duty upon the trial judge to order an evidentiary *729 hearing if a bona fide doubt arises later as to whether the defendant is competent to stand trial.
Because of our disposition of this case, we need not address the other issues raised by the defendant.
Reversed and remanded.
All concurred.
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596 S.W.2d 61 (1980)
Lucille Marie MIRANDA, Appellant,
v.
Donald V. MIRANDA, Respondent.
No. WD 30422.
Missouri Court of Appeals, Western District.
March 3, 1980.
*62 Ronald R. Holliger, Kansas City, (Koenigsdorf, Kusnetzky & Wyrsch, Kansas City, of counsel), for appellant.
Michael J. Albano and Michael W. Manners, Independence, (Paden, Welch, Martin, Albano & Graeff, Independence, of counsel), for respondent.
Before KENNEDY, P. J., and PRITCHARD and SWOFFORD, JJ.
PRITCHARD, Judge.
In this appeal from a decree of dissolution of marriage, the issues are whether the trial court properly divided the marital property, and in particular in connection therewith, whether the family-owned corporation was correctly evaluated for division of property; and whether the trial court properly denied appellant-wife maintenance.
The parties were married December 31, 1949. Three children were born of the marriage two of whom were emancipated, and the custody of the younger daughter was awarded appellant, along with a child support award of $30.00 per week.
Since 1965, the parties were jointly engaged in a corporate enterprise, Li'l Guy Foods, Inc., which manufactured and distributed various Mexican food products. Appellant owned 49% of the stock and respondent owned the balance, 51%. Appellant became active in the business in 1968, working on the production line when needed and in supervising help. Later she began doing part of the business paperwork in checking route books, invoices, and checking in drivers. Appellant's hours varied, but she testified that both parties worked in the business often ten to twelve hours a day. Although respondent denied it, appellant testified that she tested and modified recipes used in the products. The business prospered so that it was able to pay $41,600 as combined executive salaries to the parties, although that amount is not readily apparent from a four-year work sheet of income and adjustments, Exhibit 7.
The parties purchased a building for $140,000.00 in 1976 at 2340 Vernon Street in North Kansas City, which was leased to the corporation at $1,000.00 per month. At the time of trial, the corporation was behind $12,000.00 in lease payments.
As to the valuation of the corporate business, appellant's witness, James Harkins, a C.P.A. with experience in valuing corporate stock, testified that he examined corporate financial statements and tax returns for four years prior to March 31, 1977, and used a capitalized earnings method for his valuation *63 on the average of adjusted earnings. He then used a multiplier of 7, which would return about 14% yield on investment, which he testified would be appropriate for this type of business. Using this method, Harkins came up with a valuation of about $165,000.00. In arriving at that figure, Harkins adjusted upwards the earnings because appellant's duties could be done on a part-time basis, about 20 hours a week for an annual salary of $5,200.00, rather than the $20,800.00 she was paid; her social security payments would have been saved; he removed the depreciation and expenses on respondent's personal automobile; he removed non-recurring moving expenses; donations; and non-business type entertaining. He relied upon information given him by appellant's counsel as prepared by the corporation's accounting firm, Wright, Herford and Sanders. He acknowledged that he did not get general ledger information, which would have raised or lowered his valuation; if the information given him was erroneous, it is possible that the appraisal was too high; and he did not take into account the business year, March 31, 1977 through March 31, 1978, because they were not made available to him until the day of trial. [Defendant's Exhibit 10 indicates that from April, 1977 to March, 1978, there was a loss of $16,506.74.]
Respondent's witness, Lawrence D. Ashley, a lawyer and a C.P.A., testified that he reviewed the corporate tax returns and financial statements for the past five years. He also inspected the plant and equipment. There was no established market value for this type of stock. Based upon the book value method, Ashley arrived at a valuation of $60,000.00; and on the capitalized earnings method, which was basically the same as that used by Harkins, he arrived at a value of $44,000.00. Both of these methods are widely used for valuing businesses, but the capitalized earnings was preferable to use. Ashley testified that his method differed from Harkins in that he used a 15% discount factor because of lack of marketability; and he used a lesser adjustment for replacement of appellant's duties as well as raising respondent's salary for his duties. He used the same multiple of seven as applied to net earnings.
Otto Paul Mertens, C.P.A., had handled the records for Li'l Guy Foods, Inc., since 1970, he being associated, and later a partner, with Wright, Herford and Sanders, in Independence, Missouri. He evaluated the corporate business using its figures setting out its financial status as of March 31, 1978, for one figure, $67,587.29, but for the prior year (1977), his evaluation was $81,183.58. The method he used is known as the Hostead formula, which is used extensively by the Treasury Department. The earnings are "broken down between a factor that's related to a return on investment and a return on good will. The return on investment is subtracted from an average net earnings for a five-year period. The residual earnings then is capitalized, to determine the value of the good will of the corporation. This value of good will is then added to the book value of the corporation, to arrive at a total value of the corporation, which then is discounted for certain items, in this case, lack of marketability." Mertens' method differed from the other two accountants (Harkins and Ashley) in that they used earnings solely as a value for consideration of capitalized earnings, while he gave effect to the book value of the corporation, "plus capitalized good willor capitalized earnings to arrive at a good will factor." Defendant's Exhibit 13, although offered, was not received in evidence during the first hearing, but Defendant's Exhibit 9, which Mertens prepared using Exhibit 13, was received in evidence. Because of a dispute as to the production of Exhibit 13, the court recessed until June 12, 1978. Mertens was excused subject to being recalled.
Upon resuming, Harkins again took the stand. After the first hearing, he and Ashley were asked to go to the corporate premises and examine the records at that location to see if there had been any misstatement of income and earnings which might affect the valuation. Ashley and he were of the opinion that a formal audit was not necessary because it would have been timeconsuming. *64 In examining the records of gross sales, upon which commissions were paid drivers, they determined for the three years there were differences: in 1975, $10,251; in 1976, $4,942; and in 1977, $10,252. These figures do not reflect in-house sales or expenses of drivers, Harkins and Ashley believing those items would offset each other. They made adjustments for personal use of a company automobile, entertainment expenses, moving expenses, salaries for both parties, F.I.C.A. taxes for appellant, and apparently an increase in gross sales as computed from drivers' commissions. The income was averaged for five years, applied the factor "for sales that may not have been reported, used a multiplier of 7, a marketability discount of 15%, and arrived at a value of approximately $136,000." The sales reported by the corporation were from bank deposits, not from drivers' sales and commissions paid. The difference was unexplained.
The parties agreed at trial that certain personal property was non-marital, jewelry, a mink stole and coat, and agreed also that this designated property be distributed to the parties. The court incorporated that agreement in its decree, but no value was placed on any of the property by the parties in the evidence. The parties agreed to the identity of the marital property and as to some of its value. The court by decree set off property as follows: To appellant: the marital residence [value $55,000, debt $26,416.28]; 1973 Mercedes automobile [value $11,000.00]; 1975 Mustang [value $3,000.00, debt $2,582.44]. Appellant was ordered to pay all the debts thereon, and to pay respondent $14,500.00 for his one-half of the equity in the residence. Respondent was given all the corporate stock, which the court valued at $81,200.00, and was ordered to pay appellant $40,600.00 for her one-half of the corporate business, less $14,500 for respondent's one-half of the equity in the residence, making a total of $26,100.00 to be paid her in 60 installments of $435.00 per month. The property which had been rented to the corporation was set off to respondent, and he was ordered to pay appellant $24,000.00 for her one-half interest in the equity in 60 installments at $400.00 per month. (No interest on these monthly payments was provided.) A 1977 Cadillac [value $7,000.00, debt $5,000.00]; and a sailboat and trailer, which the court valued at $600.00, was set off to respondent, he to pay $300.00 to appellant for her one-half interest therein. Two retirement accounts, $3,000.00 each, in the individual names of each, were set off equally to the parties. The furniture in possession of each was set off to them. This division resulted in these total amounts of property set off to each: $93,402 to appellant, or about 53%; and $84,485 to respondent, or about 47%.
Appellant's Points I and II that there was no substantial and competent evidence to support the trial court's valuation of the corporate stock, and that that determination was against the weight of the evidence, are ruled against her. First, the testimony of Mertens, he being an expert witness, was competent, and the trial court was authorized to accept his testimony as to what the corporation was worth to the exclusion of the other two witnesses, Harkins and Ashley. Mertens was the corporate C.P.A., and had been doing accounting work for the corporation since 1970, and certainly, as the trial court could have found, he was familiar with it operation. Although appellant complains that Mertens did not give a "book value" which he used in part in arriving at his opinion as to market value, he did testify that he used book value as well as capitalized earnings, the latter (Exhibit 9) coming from corporate records. Either party had the opportunity to recall Mertens when the hearing resumed, and if appellant had done so, she could have explored the bases for Mertens' valuation. On the other hand, it not being pointed out how Harkins' original method of evaluation was superior to that of Mertens, and upon rehearing, Harkins reduced his valuation and Ashley increased his, based, as Harkins testified, on increased sales based upon drivers' commissionsa fact which was not explained. In Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245 (Mo.1968), the problem was the establishing *65 of fair value in a "close corporation" at the instance of a dissenting minority shareholder. The plaintiff contended that the trial court erred in admitting the opinion evidence of defendant's witnesses, urging that they did not constitute evidence of fair value under the statute because they had no previous experience in valuing a food brokerage business and their opinions were based on insufficient data and were not supported by sufficient reasons. The court said, page 254[12], "In this case tried without a jury, the value of the testimony of Mr. Cook and Mr. Baum and the methods and standards used by them must be determined according to the credibility of the witnesses and the probative value of the evidence. The questions of fact presented were for the determination of the trial judge and are subject to review by this court. The trial court did not err in admitting the evidence in these circumstances." And at page 255[13], "The judicial determination of value must be an informed judgment, but `fair value' is not susceptible of determination by any precise mathematical computation and no one formula or figure is binding or conclusive. (Citing cases.)" Applying the standards of the Flarsheim case, it cannot be held that the trial court erred in finding the value of the business to be $82,000.00, and in giving weight to Mertens' testimony.
The trial court could believe under the evidence that both parties were guilty of marital misconduct as that might affect the division of property under § 452.330(1)(4), RSMo 1978. Respondent had struck appellant on about four occasions, the last occurring in 1977. Appellant had, on the other hand, engaged in drinking excessively, and remaining away from home until the early hours of the morning. Without detailing the evidence, showing much bickering and quarrelling, there is little evidence to show that one party was more at fault than the other. Certain unvalued non-marital property was set off to each party. Although respondent will retain the family business, and presumably will continue to operate it and receive its profits, it would have been speculative to have fixed a value of the profits at the time of trial. (Exhibit 10 shows that the business sustained a loss from April, 1977 to March, 1978.) From any profits, or earnings, respondent must pay off appellant's interest in the business and real estate at $835.00 per month. Aside from the ability to be employed, discussed below in connection with the issue of maintenance, the division of property does not seem to be disparate in consideration of the economic circumstances of the parties. As noted, appellant received about $9,000.00 in property more than respondent.
Plaintiff's Exhibit 8, attached to the petition, sets forth that appellant then stated her needs to be $1,333.00 per month, including $230.00 for the needs of the minor daughter. She increased the amounts needed for house repairs, and certain other expenses, in her testimony at trial, but in no precise total amount. The trial court disallowed her maintenance, finding that she had sufficient property to provide for her reasonable needs and was able to support herself through appropriate employment. The payment by respondent for appellant's marital interests does not generate any income. None of her other property is income-producing. Appellant should not be required to use up her marital property, set off to her, to provide for her maintenance needs. In Brueggemann v. Brueggemann, 551 S.W.2d 853, 857[5] (Mo.App.1977), it was said, "In terms of an award of property replacing an award of maintenance, however, the focus of our statute seems more specifically on income-producing property, see Nixon v. Nixon, 525 S.W.2d 835, 838 (Mo.App.1975)." Here, prior to dissolution, appellant's sole income was $20,800.00 per year (a like amount was received by respondent) from the operation of the family business. Since respondent was awarded the business, that source of income is removed from appellant, while respondent will have the full benefit of income from the business. The inquiry as to appellant's needs was insufficient in terms of the statutory standards. As to this issue, there should be further proceedings to determine with specificity: *66 (1) whether in fact the property set off to the appellant, including its possible income, would provide for her reasonable needs; (2) whether appellant can support herself through appropriate employment (considering her age, and the possibility of similar employment to that of the family business in which she participated since about 1968); (3) appellant's total financial resources and her ability to meet her needs independently; (4) the time required, if so, for appellant to acquire sufficient education or training to find appropriate employment; (5) consideration of the standard of living established during the marriage; and (6) the ability of respondent to meet his needs while meeting those of appellant.
As to the judgment denying appellant maintenance, it is reversed and the case remanded for further proceedings in connection therewith. In all other respects, the judgment is affirmed.
All concur.
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2 S.W.3d 355 (1999)
Alfredo VASQUEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-97-00329-CR.
Court of Appeals of Texas, San Antonio.
May 19, 1999.
Rehearing Overruled July 1 and September 3, 1999.
*357 Lisa M. Beck, Beck & Beck, San Antonio, for appellant.
Edward F. Shaughnessy, III, Asst. Criminal Dist. Atty., San Antonio, for appellee.
Sitting: TOM RICKHOFF, Justice PAUL W. GREEN, Justice KAREN ANGELINI, Justice.
OPINION
Opinion by: KAREN ANGELINI, Justice.
Nature of the Case
A jury found Alfredo Vasquez guilty of the offense of murder and assessed punishment at forty years confinement in the Institutional Division of the Texas Department of Criminal Justice. In his first issue, Vasquez alleges that the evidence is legally and factually insufficient to support the verdict. In his second issue, Vasquez contends that he received ineffective assistance of counsel. In his third issue, Vasquez argues that section 19.02(d) of the Penal Code violates his right to due process. In his fourth issue, Vasquez contends that the trial court erred by failing to give a jury instruction on an alternative definition of self-defense.
Factual Background
Shortly after midnight, Vasquez went to the home of the deceased, Annabelle Villarreal, to visit Annabelle's sister. Although Annabelle's sister was not at home, Vasquez decided to drink some beer with Villarreal. After finishing all of the beer, Vasquez and Villarreal decided to go to an ice house to drink more beer. The two left in Vasquez's car and drove to the ice house. After leaving the ice house, Vasquez began driving Villarreal home. According to Vasquez, he pulled over to the side of the road at Villarreal's request. Villarreal then got out of the car and called to Vasquez to join her. Vasquez got out of the car and approached Villarreal who had her back turned to him. When Vasquez got close to Villarreal, she turned around and swung at him with a knife. Vasquez testified that he began backing up and tried to punch her. Fearing for his life, Vasquez used his own knife to attack Villarreal. Vasquez later told the police that he remembered cutting her neck first. After the attack, Vasquez moved Villarreal's body to the side of the road. Vasquez left his car at the scene and walked about half a mile to a convenience store where he *358 called the police and told them that he had been in a fight with a female. The police responded to the call and found Vasquez walking down the road with blood on his clothes. The police officers placed him under arrest.
According to the medical examiner, Villarreal was a victim of homicide who died as the result of multiple stab wounds. The medical examiner further testified that Villarreal suffered a total of fifty-two stab wounds, including wounds to the face, neck, back, chest and abdomen and "defensive" wounds on her hands and arms.
Self-Defense
In his first issue, Vasquez contends that the evidence was legally and factually insufficient to support the jury's finding of murder and rejection of selfdefense. The jury was instructed that if they found that Vasquez acted in selfdefense or they had a reasonable doubt on the issue, they must acquit. Because the jury found Vasquez guilty, there was an implied finding that he did not act in selfdefense. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991). A person is justified in using deadly force when: (1) self-defense is justified under section 9.31; (2) a reasonable person in the defendant's situation would not have retreated; and (3) the use of deadly force was reasonably believed to be immediately necessary to protect the defendant against another's use or attempted use of unlawful deadly force. Tex. Pen.Code Ann. § 9.32(a) (Vernon Supp.1999).[1] The State has the burden of persuasion to disprove self-defense but not a burden of production which means that the State must prove its case beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. Because the issue of selfdefense is an issue of fact for the jury to decide, the credibility of the self-defense evidence is solely within the jury's provmce and the jury is free to accept or reject the evidence. Id. at 914.
In determining the legal sufficiency of the evidence, we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. Id.
The medical examiner testified that the autopsy revealed that Villarreal suffered fifty-two stab wounds to the head, face, neck, chest, abdomen and back and "defensive" wounds on her hands and arms. Based on this evidence, the jury could have found that the force used was not reasonably necessary to protect against Villarreal's use or attempted use of force. The medical examiner's testimony, that nineteen of the stab wounds were inflicted on Villarreal's back, tends to show that deadly force was not immediately necessary to protect against the use of deadly force. Furthermore, because the evidence shows that Vasquez had access to his vehicle, a jury could have found that a reasonable person in Vasquez's situation would have attempted to retreat. Although Vasquez testified that Villarreal swung at him with a knife, the police did not recover Villarreal's knife at the scene.
After viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of murder beyond a reasonable doubt and would also have found against Vasquez on the self-defense issue beyond a reasonable doubt. Id. Therefore, we find the evidence legally sufficient to support the implied finding *359 that Vasquez did not stab Villarreal in selfdefense.
When presented with a factual sufficiency claim, we review all the evidence in the record which is probative of self-defense to decide if the finding of guilt and finding against self-defense are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Reaves v. State, 970 S.W.2d 111, 116 ((Tex.App.-Dallas 1998, no pet.) (combining standards set out in Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996) and Saxton v. State to review the factual sufficiency of a self-defense issue).
Viewing the evidence probative of selfdefense, Vasquez testified that Villarreal swung at him with a knife and that he backed up to avoid being cut. In an attempt to stop the attack, Vasquez testified that he tried to grab her knife and cut his pinky finger. Vasquez further testified that he tried to punch Villarreal in order to disarm her and that he pleaded with her to stop. Believing that he was going to die, Vasquez testified that he pulled his knife out of his pocket and "attacked her back." In a further attempt to show that Vasquez acted in self-defense, Vasquez points to testimony that Villarreal had a bad temper and had been arrested for stabbing a man. Vasquez also urges that he had no motive to kill Villarreal and that his prompt reporting of the attack furthers his self-defense claim. During his testimony, however, Vasquez was unable to recall how many times he stabbed Villarreal and he admitted that he was intoxicated.
Although Vasquez testified to facts tending to support self-defense, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). We must give due deference to the jury on these issues. Id. at 166. Viewing all the evidence probative of self-defense, the jury's rejection of the self-defense claim was not "so contrary to the ovenvhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 134. Therefore, we find the evidence factually sufficient to support the jury's implied finding that Vasquez did not stab Villarreal in self-defense. We overrule Vasquez's first issue.
Ineffective Assistance
In his second issue, Vasquez contends that he received ineffective assistance of counsel during the course of the trial. The right to assistance of counsel also includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In assessing the effectiveness of counsel, we apply the two-part test set forth by the Supreme Court in Strickland v. Washington. The test requires us to determine whether: (1) counsel's performance was deficient; and if so, (2) whether there is a reasonable probability that results would have been different but for counsel's deficient performance. Id. The appellant must overcome the presumption that his trial counsel's conduct might be considered to be sound trial strategy. Jackson v. State, 877 S.W.2d 768," 771 (Tex.Crim.App.1994). Claims of ineffective assistance of counsel must be affirmatively demonstrated in the record. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), cert, denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). Further, we strongly presume that counsel's conduct lies within the "wide range of reasonable representation" and we examine the totality of the representation to determine the effectiveness of counsel. Id.
In his first instance of alleged ineffectiveness, Vasquez argues that his counsel should have objected to the admission of gruesome photographs of the victim's body based on Rule 403. Rule 403 provides: "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of *360 undue delay, or needless presentation ot cumulative evidence." See Tex.R. Evid. 403. Vasquez contends that the probative value of the photographs was outweighed by the danger of unfair prejudice because the photographs shed no light on the issue of self-defense and, therefore, were intended to inflame the jurors and appeal to their emotions.
Photographs provide powerful visual evidence of the offense and the trial court does not abuse its discretion by admitting photographs of the victim into evidence merely because they are gruesome. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App.1995). In determining whether the probative value of the photographs is outweighed by its inflammatory nature, we consider factors such as: the number of exhibits offered, their gruesomeness, detail, size, and color, whether they are close-up, whether the body is naked or clothed, the availability of other means of proof, and the unique circumstances of the individual case. See Santellan, 939 S.W.2d at 172.
In reviewing the factors, we find that the State introduced two photographs of the body at the crime scene and five autopsy photographs. The crime scene photographs are roughly the size of a piece of paper and show the position of the body and a closer view of the victim's leg. The autopsy photographs are small and provide a close view of some of Villarreal's wounds. The photographs depict nothing more than the crime committed. See Sonnier, 913 S.W.2d at 519. Based on the number of photographs and their detail and size, the probative value was not outweighed by the danger of unfair prejudice. Therefore, the court did not abuse its discretion in admitting the photographs. Thus, counsel was not ineffective for failing to object based on Rule 403.
In his second instance of alleged ineffectiveness, Vasquez asserts that defense counsel failed to object to the prosecutor's "inflammatory" jury argument. As examples of inflammatory jury argument, Vasquez points to the prosecutor's argument that Vasquez "butchered" Villarreal, used her as a "pin cushion," and made repeated references to the fifty-two stab wounds. Permissible jury argument falls into the following categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to the argument of opposing counsel; and (4) a plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex.Crim.App. 1990). Any argument made outside of these areas will not constitute reversal unless the argument is manifestly improper, violates a mandatory statute, or injects new and harmful facts into the trial proceedings. Id.
Due to the violent nature of the offense and the numerous stab wounds, the prosecutor's comment that Vasquez had "butchered" Villarreal and used her as a "pin cushion" was a reasonable deduction from the evidence and references to the fiftytwo stab wounds merely summarized the evidence. See Burns v. State, 556 S.W.2d 270, 285 (Tex.Crim.App.1977) (finding references to defendant as an "animal" and a "killer" reasonable deductions from the evidence); White v. State, 699 S.W.2d 607, 615 ((Tex.App.-Dallas 1985, pet. refd) (finding comment that defendant "butchered" the victim a reasonable deduction from the evidence). Because the prosecutor's argument was not improper, counsel did not err in failing to object to the argument.
In his third instance of alleged ineffectiveness, Vasquez contends that his counsel was deficient because he failed to present persuasive evidence of Villarreal's prior acts of violence. Vasquez argues that, although Villarreal's mother testified to Villarreal's violent past and the fact that she stabbed a man, his counsel should have offered evidence of Villarreal's arrest record and elicited the testimony of Trinidad Velasquez, the man Villarreal had stabbed. Additionally, Vasquez alleges that some evidence exists that a witness in Florida *361 could have supported Vasquez's position. In order to show that counsel was ineffective for failure to call witnesses, the evidence must show that the witnesses were available and the defendant would benefit from their testimony. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983). Because the record contains no evidence of the availability of Velasquez or the Florida witness nor how Vasquez would benefit from their testimony, Vasquez has failed to show that his counsel was ineffective. Further, Vasquez has not overcome the presumption that his counsel's conduct might be considered to be sound trial strategy. See Jackson, 877 S.W.2d at 771. Eliciting unfavorable testimony from Villarreal's own mother might be more compelling than testimony from another source and repeated testimony concerning Villarreal's violent past could have the effect of putting the victim on trial. For the foregoing reasons, we find that Vasquez did not receive ineffective assistance of counsel. We overrule Vasquez's second issue.
Constitutionality of Section 19.02(d)
In his third issue, Vasquez asserts that section 19.02(d) of the Penal Code violates his right to due process of law by relieving the state of its burden of proving beyond a reasonable doubt the mens rea element of the crime and improperly shifting to the defense the burden of disproving the culpable mental state. Section 19.02(d) provides that, during the punishment phase, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. Tex. Pen.Code Ann. § 19.02(d) (Vernon 1994).[2] If the defendant proves sudden passion by a preponderance of the evidence, the first degree felony offense of murder is lowered to a second degree felony. Id. Although the jury was charged with sudden passion, they did not find that Vasquez acted under the immediate influence of sudden passion arising from an adequate cause. On appeal, Vasquez alleges that section 19.02(d) violates his constitutional right to due process by shifting the burden of proof to the defendant.
We are not without guidance on the constitutionality of section 19.02(d) as numerous courts of appeals have upheld the constitutionality of the statute. See Green v. State, 971 S.W.2d 639, 643((Tex.App.-Houston [14th Dist.]1998, pet. refd); Fleming v. State, 956 S.W.2d 620, 622 ((Tex.App.-Eastland 1997, pet. refd); Jones v. State, 955 S.W.2d 438, 440 (Tex. App.-Fort Worth 1997, pet. refd); Robinson v. State, 945 S.W.2d 336, 342 (Tex. App.-Austin 1997, pet. refd). In determining the constitutionality of the statute, the various courts of appeals looked to the United States Supreme Court case of Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). In Patterson, the Court upheld the constitutionality of a New York murder statute similar to section 19.02(d). The New York statute provided as an affirmative defense, that the defendant acted under the influence of extreme emotional disturbance, which the defendant had to prove by a preponderance of the evidence. Id. at 200, 97 S.Ct. 2319. The Supreme Court found that the New York statute did not violate due process and observed that in common law the burden of proving affirmative defenses and justifications rested on the defendant. Id. at 202, 97 S.Ct. 2319. Further, as other courts of appeals have pointed out, the Court of Criminal Appeals invited the Legislature to amend the Penal Code to make sudden passion a punishment issue that the defendant must prove by a preponderance *362 of the evidence, See Johnson v. State, 815 S.W.2d 707, 710 n. 3 (Tex.Crim. App.1991); Bradley v. State, 688 S.W.2d 847, 853 n. 13 (Tex.Crim.App.1985). Finding no distinction between the affirmative defense the defendant had the burden of proving in Patterson and section 19.02(d), Texas courts have found that section 19.02(d) does not violate the due process clause of the United States Constitution or the Texas Constitution. We agree with our sister courts and find that section 19.02(d) does not violate the due process clause. We overrule Vasquez's third issue.
Jury Charge
In his fourth issue, Vasquez eontends that the court erred by failing to charge the jury on an alternative definition of self-defense set forth in section 9.32(a)(3)(B) of the Penal Code.[3] The record shows that defense counsel did not request this instruction nor did he object to the omission of the alternative selfdefense instruction when the court asked for any objections to the charge. Having failed to request or object to the omission of the alternative self-defense instruction, the court did not err by failing to include it in the jury charge. See Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998) (finding unrequested defensive instruction not "error"). We overrule Vasquez's fourth issue.
Accordingly, we affirm the judgment.
NOTES
[1] Section 9.31 states that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of lawful force. Tex. Pen.Code Ann. § 9.31(a) (Vernon 1994).
[2] In 1993, the Texas Legislature repealed the offense of voluntary manslaughter, in which the State had to prove that the defendant caused death under the immediate influence of sudden passion arising from an adequate cause, and added the language in 19.02(d) requiring the defendant to prove sudden passion during the punishment phase to reduce murder to a second degree felony. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3613-14.
[3] (a) A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other under Section 9.31;
(2) if a reasonable person in the actor's situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary;
(A) to protect himself against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
Tex. Pen.Code Ann. § 9.32(a)(3)(B) (Vernon Supp.1999) (emphasis added).
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596 S.W.2d 747 (1980)
STATE of Missouri, Plaintiff-Respondent,
v.
Tommy CLARK, Defendant-Appellant.
No. 40628.
Missouri Court of Appeals, Eastern District, Division Two.
March 18, 1980.
*748 David V. Bear, Bear, Hines & Thomas, Columbia, for defendant-appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Steven D. Steinhilber, Asst. Attys. *749 Gen., Jefferson City, for plaintiff-respondent.
KELLY, Chief Judge.
Appellant, Tommy Clark, was convicted in the Circuit Court of Audrain County of aiding and abetting Viola Clark, his former wife, between December 1, 1976, and May 1, 1977, in the concealment of an event required to be reported by law and regulation of the State of Missouri and the United States relating to public assistance, to-wit, the return of a parent to the home, § 205.967(2) RSMo. (1975 Supp.), and was sentenced to a term of three months imprisonment in the Audrain County Jail and fined a sum of $1,000.00 in accord with the jury verdict. He has appealed this conviction and seeks a reversal thereof and discharge from said charge or, in the alternative, a new trial. For reasons hereinafter set out we reverse the conviction and remand the cause to the trial court with instructions.
On appeal the appellant presents five Points Relied On which he contends entitles him to the relief prayed for. Because of the decision we have reached we find it necessary to consider only one of these, i. e. whether the trial court erred in denying his motion for a judgment of acquittal at the close of all of the evidence because there was no evidence adduced by the state to prove beyond a reasonable doubt that (1) he knew the principal in the first degree was concealing or failing to report his presence, (2) he knew her failure to report his presence in the home was unlawful, and (3) he committed any physical or verbal affirmative act which aided or abetted her in any manner in her failure to report to the welfare authorities his return to the home.
In reviewing the evidence in light of general principles applicable to courts of appeal we are not unmindful of the rule that in determining whether there is sufficient evidence to support a criminal conviction, a reviewing court considers as true the evidence most favorable to the state and that all favorable inferences reasonably to be drawn from the evidence must be indulged in to support the conviction. Our review of the evidence is limited to a determination whether substantial evidence supports the verdict of the jury and our function is not to substitute our judgment for that of the jury. We determine only whether the evidence is sufficiently substantial to make a submissible case. Substantial evidence means evidence from which the trier of facts could find the issue in harmony therewith. We do not weigh the evidence. State v. Longmeyer, 566 S.W.2d 496, 499[1-4] (Mo.App.1978).
The evidence, viewed in this light,[1] is that appellant and Viola Clark (hereinafter Viola) were married in June, 1969. Appellant had a minor son by a former marriage and two children, both sons, were born of his *750 marriage with Viola. When the boys were born was not developed in the transcript of the record, other than Viola's testimony that they were born during the time she was on welfare. Sometime in 1973 Viola went on welfare, ADC. The expenses of the birth of both of the children were paid for by Medicaid. At all times relevant to the charge involved in this case Viola and the three children resided in "urban renewal public housing" at 915 Garfield, Mexico, Missouri. She alone signed the lease for these premises and paid the $26.00 monthly rent to occupy them.
Viola continued drawing welfare, ADC, based upon appellant's continued absence from the home, until sometime in February, 1976, when she went to the prosecuting attorney's office to seek a non-support warrant against appellant. When she told the prosecuting attorney that appellant "was in and out" of the house the prosecuting attorney advised her that she had discovered that appellant was living in the home and for Viola to avoid felony proceedings she should divorce the appellant and "go off welfare."
Viola divorced appellant on April 6, 1976, and went off welfare between February, 1976, and June, 1976. Appellant left the home on Garfield following the divorce but returned there sometime in August or September of 1976. Between December 1, 1976, and May 1, 1977, appellant "resided" with Viola at 915 Garfield with his three sons. He wasn't there every evening, but often. He would have dinner there three or four nights a week, and on occasion stayed all night and slept with Viola. He kept some of his clothing and personal belongings, including "guns and things like that," in the home. She washed his clothes and cooked his meals. She told him why he couldn't live there in February, 1976, after she had talked with the prosecuting attorney, and also told him at that time why she was divorcing him, but he ignored her and came and went as he wanted.
Viola admitted that appellant never told her not to report his presence in the home nor did he tell her to keep it a secret. According to her testimony appellant wasn't willing to put enough money into the home for her to sustain the children and because he did not give her enough money to take care of his children she had to get it somewhere so she turned to ADC. This is how he encouraged her not to report his presence in the home.
There was other evidence by an investigator of the prosecuting attorney's office that he observed appellant entering and leaving the home at least three times during the period covered by the Information and that appellant kept two automobiles he owned, a 1973 Chrysler and a 1968 Dodge, near the 915 Garfield address between March 24, 1977, and April 4, 1977. At noon on the 23rd of March, 1977, appellant drove up in front of the house, got out of his car, and went inside the house without knocking on the door. This same investigator testified that on September 26, 1977, appellant stated to him that he had been living with Viola "more off than on" since the time of the divorce and, on a second occasion appellant told him that he had observed Viola and her sister carrying all of his meat out of the house. Later, in November of 1977, while interviewing the appellant in the presence of his counsel, appellant told him that he had lived with Viola at 915 Garfield all but a couple of weeks since the divorce.
Susan Lee Lowery, an income maintenance case worker of the Division of Family Services of Audrain County, testified that it was her responsibility to determine the eligibility of different clients and the eligibility of the different applicants for different assistance programs offered by the state. Viola was one of her clients. According to Ms. Lowery, she must reinvestigate every case at five to six month intervals by contacting the client and have the client fill out a set of forms concerning her eligibility to receive or to continue to receive welfare payments. Among the questions which must be answered are whether there has been a change of residence, whether anyone has come in or left the home, whether her income has changed, and whether her resources have changed. She identified three *751 documents as forms filled out by Viola on November 11, 1976, January 27, 1977 and May 4, 1977, respectively. Ms. Lowery also testified that she explains the form to the applicant and explains the penalties involved in receiving assistance if a person should make false statements and conceal information, and then she has the applicant sign the form after going over it with her. Each of these forms was signed by Viola. The three documents[2] were admitted into evidence as State's Exhibits 1, 2 and 3. Between December, 1976, and May, 1977, Viola was receiving $208.00 per month ADC, and between February and April, 1977, she received food stamps and Medicaid authorized under Missouri law. Viola did not report the return of appellant to the home during this period to Ms. Lowery.
Ms. Lowery further testified that during the period of December 1, 1976, and May 1, 1977, we "sent two letters to him [appellant] but he did not respond."
The appellant testified in his own behalf, and denied that he lived at 915 Garfield during the times charged in the Information. According to his testimony, he lived in Montgomery City, Missouri, during that time, in a house owned by his father and with another woman. He explained his presence in the home on Garfield by categorizing the times he was there as "visits" to his children and his former wife. He explained the presence of his Chrysler at the home on Garfield, testifying that Viola drove it while he drove the Dodge. During that period of time he was working as a truck driver for O'Brien's Transfer over the road and inter-state. At time of trial he was still so employed. On some trips he was gone for two or three weeks at a time; he'd go by and see the children and Viola when he got back in town. Sometimes he'd remain overnight. He left some of his clothing in the home on Garfield. He testified that he never discussed with Viola the matter of reporting his presence in her house. He further testified that he did not know how long she had been drawing a welfare check but found out about it when he came home and there was a check in the mailbox; he denied knowing how long she had been receiving such a check. He recalled taking the check to Viola while she was in the hospital and testified that he received none of the funds from that check. On cross-examination by use of a document which was not introduced into evidence, he admitted that he paid nothing for the birth of either of his children and that he had filed a motion in court saying that he didn't have to pay support for his children because they were living with him and he had made direct payments to plaintiff (Viola) and the minor children.[3]
To make a submissible case of aiding and abetting there must be some evidence that the defendant, in some fashion, associated himself with the venture or participated in the crime in some manner as something he wished to bring about or to make the offense succeed. State v. Taylor, 542 S.W.2d 91, 93[2] (Mo.App.1976). Mere presence at the scene of the crime is not enough. State v. Castaldi, 386 S.W.2d 392, 395[3] (Mo.1965). "Aiding or abetting," in the sense those words are used in criminal law, contemplate conduct calculated to incite, encourage or assist in the perpetration of a crime, and comprehend all assistance rendered by acts or words of encouragement, incitement or support in a criminal act, and involve some participation, either before or at the time the criminal act is committed. In order to "aid and abet" in the commission of a crime, it is necessary that a defendant associate himself in some way with the principal in bringing about the commission of a crime, and mere negative acquiescence is not sufficient. State v. Muchnick, 334 S.W.2d 386, 389[2, 3, 5] (Mo. App.1960).
*752 This case was tried as if the appellant was charged with "welfare fraud," a term used frequently by the prosecutor throughout the trial. The crime charged here only incidentally had anything to do with the receipt of welfare payments by the appellant's former wife. Even if there had been proof that appellant knew Viola was receiving ADC between December 1, 1976, and May 1, 1977, we come to the conclusion that there was insufficient proof to make a submissible case of aiding and abetting her failure to report his presence in the home which is necessary to a conviction under the statute. The duty to report this change in circumstance was Viola's, not the appellant's. The statute places the duty on the one receiving the ADC payments to make this report and there is no evidence appellant received any ADC payments in the period charged in the Information. To convict the appellant as an aider and abettor it is necessary to prove that he did more than return to the home and that he stood by while Viola received ADC payments to which she might not be entitled. To prove the charge the state had to adduce evidence that appellant knew that it was against the law for Viola to receive ADC payments while he was in the home; that she was required under the law to report his presence in the home to the welfare authorities; and that he, with this knowledge, "aided and abetted" her in concealing or in not reporting his presence in the home.
There is simply no evidence that appellant possessed any knowledge that Viola was under a duty to report his return to the house on 915 Garfield. The prosecutor failed to develop just what it was Viola told appellant in February, 1976, about why he had to leave the home, and more critically, that if he returned to the home at any time thereafter, she was under a duty to report that fact to the welfare authorities. Neither is there any evidence appellant gained this knowledge from any source. "Mere suspicion, however strong, will not supply the place of evidence when life or liberty is at stake." State v. Jones, 106 Mo. 302, 17 S.W. 366, 369 (1891).
The state failed to make a submissible case of a violation of § 205.967(2) RSMo. (1975 Supp.).
Since we hold that there was insufficient evidence to support the appellant's conviction, the state may not enjoy a second opportunity to present further evidence, if any there is, which would support the charge. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Basham, 568 S.W.2d 518, 521(3) (Mo. banc 1978).
The judgment of conviction of appellant is reversed and remanded to the trial court with directions to dismiss the Information in this cause and to enter an order discharging him.
STEPHAN, P. J., and STEWART, J., concur.
NOTES
[1] One problem with the evidence developed through the testimony of the state's witnesses is the general nature of the questions propounded; there was an utter failure to limit the time to the period covered by the Information; examples of this are:
"Q. (By Ms. McPhersonthe prosecuting attorney) Was Mr. Clark aware that you were on welfare?
A. (By Witness) Yes, he was.
Q. And how was he aware of this fact?
A. Well, shortly before I left the State, he told me that I could go off welfare and he would take care of me. After the birth of my children, he didn't receive any bills from the hospital saying that he had to pay for the birth of the children. It had to be paid from somewhere.
Q. Did you ever ask him for money?
A. Yes, I did.
Q. What did he say with regard to that?
A. If it were around the first of the month, he would say, you know, `You just got your check; use it.'" Viola testified that she left the state in September, 1977, a period of time after the time frame of the alleged charge.
* * * * * *
"Q. (By Ms. McPherson) Were you aware that if you reported Tommy Clark as having returned to the home that you would lose your welfare grant?
A. I knew that.
Q. And during this period of time, did Tommy Clark ever do anything with any of the checks or cash them?
A. In February of 1976, I was in the hospital and he brought one of my checks to the hospital. I signed it and he had to co-sign it in order to cash it." (Emphasis supplied).
[2] While there were several documents introduced into evidence by the state we have not been favored with them inasmuch as they have not been filed in this court pursuant to Rule 81.15.
[3] This is explained in the argument of the prosecutor as a motion to quash execution in the divorce case whereby the appellant sought to quash a garnishment and where he alleged that he had provided Viola and the children with support in a sum of $195.00 per month.
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2 S.W.3d 376 (1999)
Ex parte Samuel BAUDER.
No. 04-93-00725-CR.
Court of Appeals of Texas, San Antonio.
June 16, 1999.
Rehearing Overruled August 2, 1999.
*377 Adrienne Urrutia Zuflacht, San Antonio, for appellant.
Barbara Hervey, Asst. Criminal Dist. Atty., San Antonio, for appellee.
Before: TOM RICKHOFF, Justice CATHERINE STONE, Justice SARAH B. DUNCAN, Justice.
OPINION
Opinion by: TOM RICKHOFF, Justice.
This habeas appeal is before this court for the third time for us to determine whether Samuel Bauder's retrial for driving while intoxicated is jeopardy barred because an earlier trial ended in a mistrial. See Bonder v. State, 880 S.W.2d 502 (Tex. App.-San Antonio 1994), rev'd, 921 S.W.2d 696 (Tex.Crim.App.1996); Bander v. State, 936 S.W.2d 19 ((Tex.App.-San Antonio 1996) (opinion on remand), rev'd sub nam. Ex parte Bauder, 974 S.W.2d 729 (Tex.Crim.App.1998). As has been detailed in prior opinions, the mistrial was declared after the prosecutor asked the arresting officer "what was going on" when he approached Bauder's vehicle, and the officer responded with a vernacular expression describing a sex act.
In its first opinion in this case, the court of criminal appeals held that under the Texas Constitution "a successive prosecution is jeopardy barred after declaration of a mistrial at the defendant's request... when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." Bauder v. State, 921 S.W.2d 696, 699 (Tex.Crim.App.1996). In its most recent opinion, the court instructed:
[T]he. questions presented in this case are, on the one hand, whether the appellant's motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial. Or, on the other hand, was he required to move for mistrial because the prosecutor deliberately or recklessly crossed "the line between legitimate adversarial gamesmanship and manifestly improper methods" that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it?
Ex parte Bauder, 974 S.W.2d 729, 732 (Tex.Crim.App. 1998) (citation omitted).
Immediately after the officer gave the objectionable answer, the judge, the prosecutor and the defense counsel engaged in a discussion outside of the jury's presence. The first thing the prosecutor stated during this discussion was, "If I could make one thing clear: I didn't know that's what I was expecting him to say was `parking.' I didn't know something inflammatory was going to come out." At the hearing on Bauder's plea in bar, the prosecutor testified that he briefly spoke with the arresting officer in the hallway before the trial began. The officer told him in the *378 hallway that Bauder and his companion were "parking." The prosecutor testified, "I was expecting to getI was pressing to get the answer that [the officer] gave me out in the hallway." He stated that he believed this was "part of what the officer observed." Therefore, the prosecutor "didn't expect to elicit" hearsay or extraneous offense testimony. The prosecutor was "surprised" by the answer given by the officer in court; he "had no idea" the officer would answer in the objectionable way"[i]t was the first time [the prosecutor] heard that."
Considering that the prosecutor had never heard the officer give the objectionable answer before and that the prosecutor "didn't expect to elicit" the answer, was "surprised" by the answer, and "had no idea" the officer would give the answer, we cannot say that the prosecutor was "aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." Bauder v. State, 921 S.W.2d at 699 (emphasis added). Nor can we say that he "deliberately or recklessly crossed `the line between legitimate adversarial gamesmanship and manifestly improper methods...."` Ex parte Bauder, 974 S.W.2d at 732.[1] Therefore, Bauder's retrial is not jeopardy barred.
The trial court's order denying habeas relief is affirmed.
NOTES
[1] We also continue to believe that a judicial admonishment to disregard the officer's answer would have cured any prejudice resulting from it, rendering the mistrial unnecessary. See Bauder v. State, 936 S.W.2d at 22. But we presume from the reversal of our second opinion that neither the necessity of the mistrial nor the efficacy of a judicial admonishment is dispositive. But see Bauder v. State, 921 S.W.2d at 699 ("[T]he prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant's motion [but ] is accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing.") (emphasis added). Compare id. with Ex parte Bauder, 91A S.W.2d at 731 ("The question is not the correctness of the ruling granting the mistrial."); and id. at 732 (describing one of the questions presented as whether the defendant was "required to move for mistrial because the prosecutor deliberately or recklessly crossed `the line between legitimate adversarial gamesmanship and manifestly improper methods' that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it") (emphasis added).
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113 F.2d 643 (1940)
UNITED STATES
v.
THOMSON.
SAME
v.
CRAIG.
Nos. 7227, 7230.
Circuit Court of Appeals, Seventh Circuit.
July 5, 1940.
Rehearing Denied July 17, 1940.
Harold Lindley, of Danville, Ill., and Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon, Ill., for appellants.
Arthur Roe, U. S. Atty., and Ray M. Foreman, Asst. U. S. Atty., both of Danville, Ill., and Carl W. Feickert, of East St. Louis, Ill., for appellee.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
EVANS, Circuit Judge.
Defendants were charged with, and convicted of, the crime of devising a scheme to defraud and using the mails in furtherance thereof and also with a conspiracy to violate Section 338, Title 18, United States Code, 18 U.S.C.A. § 338. They were tried together, and imprisonment sentences pronounced on both. Each appealed separately. The questions presented on both appeals are *644 in some respects alike and one opinion will dispose of both appeals.
Defendants ask us to review and reverse the ruling of the District Court made on their motion to suppress evidence secured through an allegedly illegal search of their property and possessions.
The issue is a narrow one. Were two searches made by post office inspectors reasonable?
Post office inspectors without search warrants made two searches, one August 3, 1938, and one August 16, 1938. The Government's answer to the asserted illegality of the first search is that defendants consented thereto.
Its justification of the August 16th search was that it was made on the occasion of the arrest of the defendants pursuant to warrants issued on the indictment returned in this case. No search warrant was necessary.
On this second search, seventeen mail bags of books, papers and documents were taken in the course of a two hour search made by the post office inspectors while the marshal stood by and the defendants were making arrangements for bail.
The District Court heard oral evidence and ruled against the defendants' motion.
Defendants were in the business of merchandising cosmetics and did so by means of hundreds of solicitors with whom agency contracts were executed. The alleged fraud set forth in each of the many counts of the indictment arose out of these agency contracts. Deposits taken from the solicitors were not repaid, or only rarely. Salaries earned, due to impossible requirements as to hours of service, daily reports, etc., of the agency contract, could not be, or at least were not, collected.
Defendant Thomson had successfully promoted several cosmetic companies, either alone or in partnership. Complaints about him and his ways reached the post office inspectors, who, on August 3, without warrant, called at defendants' place of business to investigate the facts and obtain the names and addresses of the agents so that they might correspond with them. One inspector testified he asked for the names of various agents. He testified that defendant went through his files and gave them to him voluntarily. Thomson, on the other hand, denied granting permission to the inspector to withdraw such records.
The District Court heard oral evidence on the fact issues arising out of defendants' motion to suppress the evidence obtained from this and the other search and reached the conclusion, which we think is well supported by the evidence, that Thomson not only waived his right to object to the use of this evidence, but invited the post office inspector to examine the same and "get any information he desired." This disposes of defendants' objections to the first the August 3d search.
The testimony respecting the search on the 16th of August is not free from dispute.
The investigation of the post office inspector, following the August 3d visit, resulted in the presentation of evidence to the Grand Jury and the return of an indictment against the defendants.
On August 16th the marshal and his deputy arrived at the defendants' place of business with a warrant for their arrest. At the same time two post office inspectors appeared, and, after the arrest was made, the inspectors proceeded to search the premises. They went through defendants' files and records and removed a great many documents. Thomson stated he protested against the removal of his papers and asked leave to telephone his attorney. The inspectors told him they had the legal right to search and seize whenever the Government was making an arrest. They advised him to arrange for his bail. While the marshal was not active in making the search, he was present and the accused was also there during the entire period of the search.
Statements of the law of search and seizure in somewhat analogous cases have been announced by the Supreme Court in the following cases: Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L.R. 409; Marron v. United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231; GoBart Co. v. United States, 282 U.S. 344, 51 S. Ct. 153, 75 L. Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877, 82 A.L.R. 775.
In the face of these decisions it is hardly helpful to cite decisions of inferior courts, which are out of harmony with the holdings of these cases. Differences of opinion may well exist over the weight of the reasons upon which the conclusions expressed in these opinions rest, but our duty *645 is clear. It is to apply these decisions to the facts of each case. So doing, we must reverse the judgment in this case.
In thus disposing of this case we assume: (a) That neither the length of the search at the time of the arrest, nor the volume of the evidence seized has anything to do with the validity of the search. One single bit of evidence, no larger than a half carat diamond, may be all that is seized in one case. Thirteen truck loads of liquor, still apparatus, etc., may be taken in another case. The smuggled diamond may be so skillfully concealed that much time is required for the searching officers to locate it, whereas the defendant may be sitting in his still house surrounded by vats of liquor, in the second search, and no time at all required to complete the search. In other words, the reasonableness of the search depends upon the facts in each case, and this applies to the length of the search and the quantity seized.
(b) The right to search when defendant is arrested is no greater than when the search is made pursuant to a search warrant. There is an intimation in one of the opinions that the right is not quite as comprehensive in the case of search when arrest is made. In United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 423, 76 L. Ed. 877, 82 A.L.R. 775, the court said: "* * * The authority of officers to search one's house or place of business contemporaneously with his lawful arrest therein upon a valid warrant of arrest certainly is not greater than that conferred by a search warrant issued upon adequate proof and sufficiently describing the premises and the things sought to be obtained."
(c) A valid search may result in the seizure of papers as well as other kinds of property. The test is not the nature of the property seized (papers or liquor for instance), but whether such property was by the accused used in perpetrating a crime. In Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 265, 65 L. Ed. 647, the court said: "There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant. Stolen or forged papers have been so seized, * * * and lottery tickets, * * * and we cannot doubt that contracts may be so used as instruments or agencies for perpetrating frauds upon the government as to give the public an interest in them which would justify the search for and seizure of them, under a properly issued search warrant, for the purpose of preventing further frauds. * * *"
(d) Where the papers of the accused are seized upon a search solely for use as evidence of a crime of which respondents were accused or suspected, the search may be described as unreasonable. In the Lefkowitz case the court said: "Respondents' papers were wanted by the officers solely for use as evidence of crime of which respondents were accused or suspected. They could not lawfully be searched for and taken even under a search warrant issued upon ample evidence and precisely describing such things and disclosing exactly where they were. * * *"
Distinguishing the facts in the Marron case, the court said:
"* * * There, prohibition officers lawfully on the premises searching for liquor described in a search warrant, arrested the bartender for crime openly being committed in their presence. * * * The ledger and bills being in plain view were picked up by the officers as an incident of the arrest. No search for them was made. The ledger was held to be part of the outfit actually used to commit the offense. The bills were deemed so closely related to the business that it was not unreasonable to consider them as employed to carry it on. While no use was being made of the book or paper at the moment of the arrest, they like containers [etc.] were kept to be utilized when needed. The facts disclosed in the opinion were held to justify the inference that when the arrest was made the ledger and bill were in use to carry on the criminal enterprise.
"Here, the searches were exploratory and general and made solely to find evidence of respondents' guilt of the alleged conspiracy or some other crime. Though intended to be used to solicit orders for liquor in violation of the act, the papers and other articles found and taken were in themselves unoffending. The decisions of this court distinguish searches of one's house, office, papers or effects merely to get evidence to convict him of crime from searches such as those made to find stolen goods for return to the owner, to take property that has been forfeited to the government, to discover property concealed to *646 avoid payment of duties for which it is liable, and from searches such as those made for the seizure of counterfeit coins, burglars' tools, gambling paraphernalia and illicit liquor in order to prevent the commission of crime. * * *
"This case does not differ materially from the Go-Bart Case and is ruled by it. An arrest may not be used as a pretext to search for evidence. The searches and seizures here challenged must be held violative of respondents' rights under the Fourth and Fifth Amendments."
It is apparent that this case governs the law applicable to the facts in the case before us.
The papers seized in the instant case were in themselves not offending. They were taken for the sole purpose of getting evidence to convict the defendants of a crime with which they had been charged.
It would be unjust and illogical to separate the two cases and uphold the judgment as to one defendant and reverse it as to the other. While the Constitutional Amendments upon which the defense of illegal search and seizure is based may have been available to only one defendant, nevertheless the trial of the two together, and the introduction of evidence against them both may well have worked to the prejudice of the other.
The judgment is reversed with directions to grant a new trial.
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318 Pa. Super. 386 (1983)
465 A.2d 8
Constance ROSSI,
v.
STATE FARM AUTOMOBILE INSURANCE COMPANY, Appellant.
Supreme Court of Pennsylvania.
Argued January 20, 1982.
Filed August 12, 1983.
Petition for Allowance of Appeal Denied January 16, 1984.
*388 Dennis Veneziale, Philadelphia, for appellant.
Eugene A. Spector, Philadelphia, for appellee.
Before JOHNSON, WATKINS and LIPEZ, JJ.
JOHNSON, Judge:
This appeal asks us to decide whether a passenger who has recovered damages under the liability provisions of an insurance policy held by the operator of a motor vehicle may thereafter recover the same damages by compelling arbitration under the uninsured motorist coverage of the same policy. We think not and reverse the order of the common pleas court confirming the arbitration award.
On December 17, 1978, an automobile driven by Rene Lucas collided with an uninsured automobile at Walnut and Fifty-Sixth Streets in Philadelphia. Constance Rossi was a passenger in the automobile driven by Lucas when it was involved in the collision. Rossi sustained injuries as a result of the collision. Subsequently, she settled and released any claims she may have had against Rene Lucas. The release inter alia contained the following language:
Constance Rossi reserves the right to explore any and all avenues to recover further and obtain full and complete compensation for her injuries and damages, including *389 her right to pursue any claims available against any insurance carrier affording to plaintiff uninsured motorist coverage. . . .
In exchange for executing the release, she received $7,500.00 from State Farm Automobile Insurance Co., the liability insurance carrier for Lucas.
After accepting the $7,500.00, Rossi made a claim under the uninsured motorist (UM) coverage of the Lucas policy. State Farm refused payment. Rossi compelled the appointment of arbitrators under the arbitration clause of the policy. The arbitration was conducted pursuant to the Act of April 25, 1927 P.L. 381 No. 248, 5 P.S. § 161 et seq. An arbitration hearing was held on January 22, 1981. The arbitrators awarded Rossi the following damages:
(A) $6,500.00 for Plaintiff's (Rossi's) Pain and Suffering
(B) Special Damages Consisting of:
1. Medical Expenses $984.00
2. Lost Wages 540.00
______
$1,524.00
(C) Total of (A) and (B) $8,024.00
Rossi then petitioned for confirmation of the award of the arbitrators. State Farm cross-petitioned for modification of the award. The petition to confirm the award was granted, prompting this appeal.
We begin our analysis of the instant case by considering the release that Rossi executed. The language in the release purports to reserve a further right of recovery to Rossi of uninsured motorist benefits. However, that further right of recovery is limited to "any insurance carrier affording . . . uninsured motorist coverage" to Rossi. The release therefore permits Rossi a limited right of further recovery from her own carrier of uninsured motorist benefits. Since Rossi sought recovery from the insurance carrier of another, her claim falls outside of the limited right of further recovery reserved in the release. Her second claim under the Lucas policy is therefore not protected by the release.
*390 Even if we were to construe the release as reserving to Rossi the right to further recovery from State Farm under the Lucas policy, our inquiry would not end there. It would be incumbent upon us to determine if Rossi received full compensation for her injuries from the settlement.
While it is a fundamental rule of damages that a person injured by the tortious act of another is entitled to compensation, a court will not allow that person more than one satisfaction in damages. Muise v. Abbott, 160 F.2d 590 (1st Cir. 1947) affirming 60 F. Supp. 561 (D.Mass. 1945). An injured party cannot recover twice for the same injury. See Thompson v. Fox, 326 Pa. 209, 192 A. 107 (1937); see also Smialek v. Chrysler Motors Corporation, 290 Pa.Super. 496, 508, 434 A.2d 1253, 1259 (1981); Embrey v. Borough of West Mifflin, 257 Pa.Super. 168, 180, 390 A.2d 765, 771-2 (1978). This rule is based on the theory that duplicate recovery results in unjust enrichment. Muise v. Abbott, 60 F.Supp. at 562.
We believe this fundamental rule of damages is equally applicable when a recipient of insurance benefits, which fully compensate the recipient for the injuries suffered, seeks to recover for the loss a second time under a different provision of the same policy. We apply the rule to the instant case.[1]
The record indicates that State Farm paid Rossi under the liability portion of the Lucas policy, when she settled her claims against Rene Lucas and executed a release in exchange for the sum of $7,500.00. At the time of the settlement Rossi had incurred medical expenses and wage loss totalling $1,524.00. The medical bills and wage loss were known to the parties and were used as an indicator of the general damages which Rossi sustained. The additional *391 increment of $5,976.00 in the settlement represented payment to Rossi for her general damages. State Farm therefore compensated Rossi for both her special and general damages in the settlement.
After receiving the settlement amount, Rossi compelled arbitration seeking further recovery from State Farm for her injuries. During the arbitration hearing she did not purport to prove additional damages beyond those she received in settlement of her claim against Rene Lucas. She submitted the same medical bills and wage loss to the arbitrators as evidence of her special damages. N.T. Arbitration Hearing at 43-52; R.R. at 107a-116a. From this evidence, the arbitrators determined that she was entitled to be compensated for her special damages in the amount of $1,524.00 and to receive the sum of $6,500.00 as pain and suffering. The arbitrators refused to reduce their award by the amount she had received from the settlement; thus it cannot be said that the amount awarded was for damages in excess of those for which she was compensated by the settlement.
Our review of the record convinces us that Rossi, by compelling arbitration under the UM coverage, sought from State Farm a second recovery of damages for the same injury, under a different portion of the Lucas policy. The presentation of the same evidence of medical expenses and wage loss to the arbitrators convinces us that Rossi did not suffer a loss that remained uncompensated after the prior settlement. In fact, the only difference between the amount of the arbitrators' award and the amount of the settlement was the increased value the arbitrators placed upon Rossi's claim for general damages. This does not represent the accrual of additional compensable loss by Rossi, but it is merely a difference of opinion as to the value of Rossi's general damages.
Irrespective of the amounts she recovered from State Farm in her settlement with Lucas, Rossi argues that she may recover under the UM coverage of the Lucas policy *392 because it is a separate coverage which applies to the circumstances of her injury. However, the purpose of UM coverage is not to enrich persons who have fully recovered monetarily from an accident yet who seek to obtain windfall profits. See Amaradio v. Travelers Insurance Co., 276 Pa.Super. 189, 419 A.2d 159 (1980).
Our cases have held that uninsured motorist coverage is to be construed liberally, except when equally strong legal or equitable considerations to the contrary are present. See Adelman v. State Farm Mutual, 255 Pa.Super. 116, 386 A.2d 535 (1978); Sands v. Granite Mutual Insurance Co., 232 Pa.Super. 70, 331 A.2d 711 (1974). We think that such considerations are present where, as here, a double recovery is sought. But cf., Saunders v. State Farm Insurance Co., 294 Pa.Super. 424, 440 A.2d 538 (1982) allocatur granted June 4, 1982 (where this court permitted double recovery as a matter of interpretation of the insurance policy). We therefore reject the notion that Rossi may have a duplicate recovery for her injuries simply because they fall within two separate and distinct coverages provided by the Lucas policy. We cannot in equity and good conscience allow Rossi to receive more than one satisfaction for her injuries, by permitting her to be twice compensated for them at the expense of State Farm and Rene Lucas.
For the reasons we have discussed supra, we hold that Rossi is not legally entitled to recover duplicate damages for the same injuries under the separate coverages afforded by State Farm in the Lucas policy.
Before concluding, we note that State Farm has raised in its brief an issue similar to the one in Saunders v. State Farm Insurance Co., supra. Saunders held that a policyholder may receive a duplicate recovery of her special damages, i.e., medical expenses and wage loss, under her personal injury protection benefits and her UM coverage. The policyholder/claimant had paid two premiums for these separate coverages. Saunders is distinguishable from the instant case. The facts of Saunders differ from the instant *393 case in that Rossi seeks duplicate recovery of her total damages from the insurance coverages of a third party, Lucas, for which she, Rossi, has not paid premiums. We find Saunders inapplicable to the instant case.
For the above reasons, we reverse the order of the trial court and remand for the entry of an order consistent with this opinion. Jurisdiction is relinquished.
NOTES
[1] Our conclusion that a recipient of insurance benefits which fully compensate for any loss suffered, is not entitled to a double recovery, even if the recipient legally has another claim of recovery for the same loss, is analogous to that reached by the Indiana courts. See Wecker v. Kilmer, 260 Ind. 198, 294 N.E.2d 132 (1973); Lazarrus v. Employers Mutual Casualty Co., 173 Ind.App. 452, 364 N.E.2d 140 (1977).
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191 N.J. Super. 192 (1983)
465 A.2d 948
WILLIAM DERMODY, PLAINTIFF,
v.
ELMER A. STICCO, MICHAEL R. ROSSI, JR., GEORGE L. HERBERT, DATRON SYSTEMS, INC., AND INTERNATIONAL CONTROLS CORP., DEFENDANTS.
Superior Court of New Jersey, Chancery Division Hudson County.
Decided May 5, 1983.
*193 Rabin & Silverman for plaintiff (by I. Stephen Rabin).
Kasen and Kraemer for defendants (by Waldron Kraemer).
*194 CASTANO, J.S.C.
This class action, tried without a jury, arises out of a short form corporate merger in which a defendant corporation, owner of 90% of the stock of a subsidiary, acquired all of the remaining shares of the subsidiary and merged it with another wholly owned subsidiary pursuant to N.J.S.A. 14A:10-5 and N.J.S.A. 14A:10-7(4).
The issue before me is whether the minority shareholders of the subsidiary, whose approval of the merger was not required by the statute, were paid "fair value" for their interest. I find that they were.
At common law the consent of all stockholders was required to carry out corporate mergers and a minority of the shareholders could always block a merger if it was not to their liking or for no reason at all. To protect majorities from arbitrary minorities all states have enacted statutes under which a merger may be ratified by less than a unanimous vote. See Note, 79 Harv.L.Rev. 1453 (1966).
In New Jersey today, mergers proposed by the directors need be approved by only a majority or two-thirds of the shareholders, depending on when the corporation was organized. N.J.S.A. 14A:10-3.
In addition, New Jersey has adopted a short form merger statute, derived from the Delaware Corporation Act. N.J.S.A. 14A:10-5. It provides that a corporation owning at least 90% of the outstanding shares of each class and series of another corporation's stock may merge such other corporation into itself without any shareholder approval at all.
In effect, the parent corporation is authorized to buy out the minority shareholders of the corporation to be merged by converting their shares into cash whether they want to sell or not. N.J.S.A. 14A:10-2(2)(b) and (c). The only limitation is that they must be paid "fair value" for their shares. The statute has never been construed in a reported opinion in this State.
*195 The essential facts in this case were stipulated.
In December of 1979, defendant International Controls Corp. (ICC), a Florida corporation was the owner of more than 90 percent of the outstanding shares of common stock of defendant Datron Systems, Inc. (Datron), a New Jersey corporation, and was the owner of all of its outstanding preferred stock. Datron was a manufacturer and distributor of electro-mechanical and microwave transmission components, electronic relays, power conversion products and steam traps used mainly by the refining industry.
The issued stock of Datron at the time consisted of 5,336,904 shares of common stock, 100,000 cumulative preferred shares and 26,000 cumulative convertible serial preferred shares. On the financial side, Datron was in arrears on its preferred stock dividends in the amount of $9,747,000 and was faced with the obligation of commencing sinking fund payments to redeem the convertible shares within 15 months thereafter.
On December 4, 1979, ICC announced a short form "triangular" merger plan in which it proposed to merge Datron with Nortand Systems, Inc., a wholly-owned subsidiary of ICC. Datron was to be the surviving corporation as a wholly-owned subsidiary of ICC. The merger was effected as proposed on December 24, 1979.
The plan provided that the Datron common stockholders would be paid $1.25 per share. The figure had been determined by a major investment banking firm retained by ICC to provide an independent appraisal. A member of that firm who was defendants' expert at the trial testified that his firm's assignment was to deliver its opinion as to a fair price rather than to marshal evidence in support of any prior valuation made by defendants.
Plaintiff, who owned 1,000 shares of Datron's common stock, was the only one of 470 minority holders other than those not contacted because of a change of address who did not tender his shares and accept the payment offered. He was of the *196 opinion that $1.25 a share was not "fair value" and instituted this suit to recover the difference between the offer and what he deemed to be the fair value of the stock.
Originally, his complaint charged Datron, ICC and several individual defendants with self-dealing and with a violation of their fiduciary duties. Those allegations were abandoned prior to the pretrial conference, however, and the sole issue litigated was whether the shareholders as a class had received "fair value," the action having been certified as a class action on behalf of all of the minority shareholders. Defendants acknowledged that they not the plaintiffs had the burden of proof on that issue.
The "burden of establishing the fairness of the transaction" in merger litigation is always "on those seeking to uphold the merger," Brundage v. New Jersey Zinc Co., 48 N.J. 450, 477 (1967), because those
... who control the affairs and conduct of a corporation, whether public or private, have a fiduciary duty to all the stockholders and the powers they have by virtue of their majority status are powers held by them in trust. [citation omitted] They cannot use their powers for their own personal advantage and to the detriment of minority stockholders. Berkowitz v. Power Mate Corp., 135 N.J. Super. 36, 45 (Ch.Div. 1975).
A fairness controversy, in effect, tests whether that fiduciary duty has been breached and it is only logical that the burden should be on the fiduciaries to justify that they have not violated their trust.
While there is "no inflexible test as to what fairness is * * *," Brundage v. The New Jersey Zinc Co., supra, 48 N.J. at 482, an assessment of fair value requires consideration of "proof of value by any techniques or methods which are generally acceptable in the financial community and otherwise admissable in court." Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983), rev'g, 426 A.2d 1333 (Del. Ch. 1981).
To adjudicate fairness, therefore, a court must first consider separately the alternate methods of valuation proposed and then assign to each the evidentiary weight it deserves in the *197 context in which it is being offered. See Annotation, Valuation of stock of dissenting stockholders in case of consolidation or merger of corporation, sale of its assets, or the like, 48 A.L.R.3d 430 (1973).
As was pointed out in Sterling v. Mayflower Hotel Corp., 33 Del. Ch. 293, 93 A.2d 107 (1952):
* * * all relevant value factors must be considered in arriving at a fair value * * * But the requirement that consideration be given to all relevant factors entering into the determination of value does not mean that any one factor is in every case important or that it must be given a definite weight in evaluation * * the relative importance of several tests of value depends on the circumstances.
Defendants' expert testified that in arriving at the $1.25 per share buy-out figure he first assembled data by making an independent investigation, an examination of published materials and a statistical comparison of other corporations in the same general size range and that he then submitted that data to five tests of value. He approached the information he had compiled from the viewpoint of (1) book value, (2) liquidation value, (3) earnings value, (4) discounted cash flow value and (5) market value.
The book value and liquidation value approaches produced the two least reliable results. At book value the stock was valued at minus 35 cents a share; liquidation value likewise was only a nominal sum. Defendants' expert said he gave no weight to either approach. See Brundage v. New Jersey Zinc Co., supra, 48 N.J. at 479, and Sterling v. Mayflower Hotel Corp., supra, 93 A.2d at 115. See, also, Homer v. Crown Cork & Seal Co., 155 Md. 66, 141 A. 425 (1928).
The earnings and discounted cash flow analyses, on the other hand, were far more comprehensive, treated important factors ignored in the book value and liquidation value approaches and yielded more equitable results.
Both techniques are generally intended to quantify a stock's investment worth to a shareholder through an estimation of the return the shareholder may reasonably be expected to realize. *198 Traditionally this has been recognized to be a significant appraisal consideration.
In In Application of Delaware Racing Ass'n, 42 Del. Ch. 406, 213 A.2d 203 (1965), the court observed that
... dividends paid or the possibility of them being paid in the future, is of especial significance in questions of valuation since receipt of dividends is ordinarily the most usual way for the stockholder to realize upon the value of his stock.
In an earnings analysis, the value of a stock is conceptualized as the product of the corporation's representative earnings multiplied by a number derived from an aggregation of the price/earnings ratios of comparable stocks. The approach is only reliable, however, if it also reflects any diminution in a stock's worth because of priority obligations that may preclude shareholders from participating in anticipated profits in the immediate future.
The discounted cash flow method necessarily takes such realities into consideration. This method may simplistically be described as evaluation of a stock in terms of the present value of the income stream it may be expected to produce, factored for the element of risk inherent in the enterprise. It is a recognized approach to value in "fairness" litigation. Weinberger v. UOP Inc., supra, 712.
The earnings approach, as employed here by defendants' appraiser, recognized that Datron had a modest potential for growth. However, as of the date of the merger, its arrears on dividends payable to preferred shareholders totalled nearly $10,000,000 and its arrears on cumulative preferred shares were accruing at an annual rate of more than $1,000,000.
Even if the optimistic earnings projections were realized, the necessity of meeting the priority obligations together with the need to generate working capital to maintain the enterprise could reasonably have been anticipated to absorb Datron's profits for the decade following the merger.
*199 Consequently, when Datron's earnings were fully "diluted" to reflect the reality of Datron's equity structure, defendants' appraiser arrived at the factually supported conclusion that from an earnings approach the maximum value that could be projected for Datron's stock was $1. Under the discounted cash flow approach, the stock was said to be fairly priced in a range between 81 cents and $1.00.
The final appraisal method utilized by defendants' expert was market price analysis. While that value alone cannot be determinative of the fairness of compensation to minority shareholders, Berkowitz, supra, 135 N.J. Super. at 49, it is a valuable corroboration tool.
While payment above market price does not automatically translate into fairness, it does represent a factor in valuation which properly may be taken into account when a stock is publicly traded as in the present case. See discussion of market value evidence in Brundage, supra, 48 N.J., at 482.
Defendants' expert considered Datron's over-the-counter market price and found that the stock's highest market price, slightly over $1.00, served to corroborate his conclusions as to the stock's value under earnings and cash flow analysis.
In contrast, plaintiff's expert arrived at a value of $7.70 for the stock by utilizing only one approach, earnings analysis. Since it was the most significant test under the circumstances, he cannot be faulted for ignoring the others. However, his analysis was seriously flawed in other respects.
First, the corporations he selected for comparison were not fairly comparable. Most were established industrial companies operating on a scale four times larger than Datron. This enabled them to enjoy price/earnings ratios which Datron could never hope to achieve and to have total sales and assets wholly disproportionate to those of Datron. See Berkowitz, supra, 135 *200 N.J. Super. at 49, rejecting an expert's testimony based on comparisons which were "surely not a barometer by which one can or should measure the fairness of the price offered."
Second, in selecting reported earnings and price/earnings ratios for use in this calculation, he arbitrarily mixed figures from different time periods, seriously undermining the legitimacy of his equation. For example, in one instance he conceded that he had utilized a price/earnings ratio taken from a "look in the newspaper the day I did the analysis," which was almost two years after the date of the controverted transaction.
Third, his earnings projections were based in large part on speculation as to Datron's prospects for future participation in "embryonic markets" which he said were "going to materialize over the next decade" if technological progress took the course he forecast. The result was a shaky view of present value based only on unpredictable expectations and crossed-finger hopes.
Plaintiff tried to justify his conjectural approach on the basis of Perlman v. Feldmann, 219 F.2d 173 (2d Cir.1955), on remand 154 F. Supp. 436 (D.Conn. 1957), where projections of future earnings were weighted to the exclusion of other factors in assessing the fairness of a transaction affecting minority shareholders. The level of speculation, however, was sharply reduced in that case which dealt with a projection of a steel manufacturing corporation's prospects in the context of heightened wartime production demands created by the Korean conflict.
Moreover, the holding is somewhat of an aberration. It appears to be the only reported case which has sanctioned present value conclusions based solely on future earning projections. Traditionally such opinions have been rejected as too unreliable. See David J. Greene & Co. v. Dunhill International, Inc., 249 A.2d 427 (Del. Ch. 1968). That appears to be the better view, but, in any event, the rationale of Perlman is not applicable under the "particular circumstances" of the present controversy *201 where the future market is so theoretical. Brundage, supra, 48 N.J. at 382.
Fourth, his treatment of the preferred stock dividend arrearages was pure double-speak. Rather than dilute his calculation of Datron's potential earnings so as to reflect the impact of the arrearages on the income which common shareholders could actually expect to realize, he merely deducted the arrearages, measured on a per share basis, from what he considered to be the fair price of the stock had the arrearages not existed.
He measured the stock as having an earnings gross value of $9.60 a share. From that figure, he deducted $1.72, which represented the per share dividend arrearage, and arrived at his value figure of $7.70 a share.
There was no proof that the procedure was an approach generally recognized in the financial community. To the contrary, it appeared that the method comported with no standard of reason.
Overall, the testimony of plaintiff's expert was exaggerated, inconsistent and contrived to maximize the accusation of unfairness. It was based on unfounded speculation and faulty methodology rather than upon a rational analysis of financial data. Weinberger, supra, 457 A.2d at 713. I find it was not deserving of any weight.
In contrast, defendants' comprehensive approach relied on techniques generally acceptable in the financial community. In my view, defendants satisfied their burden of establishing the fairness of the transaction. They demonstrated that each minority shareholder of Datron was offered "his proportionate interest in a going concern." Tri-Continental Corp. v. Battye, 31 Del. Ch. 523, 74 A.2d 71, 72 (1950). The value they fixed for the Datron stock was fair.
Judgment shall be entered today for defendants and against plaintiff.
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113 F.2d 618 (1940)
BUGGS
v.
FORD MOTOR CO.
No. 6975.
Circuit Court of Appeals, Seventh Circuit.
June 28, 1940.
Jacob Geffs, of Janesville, Wis., for appellant.
Carl Muskat, of Milwaukee, Wis., and Clifford B. Longley and Wallace R. Middleton, both of Detroit, Mich., for appellee.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
Plaintiff brought this action against defendant to recover damages for the unlawful cancellation of a franchise to act as a Ford dealer in Janesville, Wisconsin. Under contracts with defendant, running back to October, 1913, plaintiff had served as a Ford dealer, until September 27, 1937. On this date defendant served a notice of written cancellation upon him, effective at once. The terms of the last written agreement of the parties provided for termination "at any time at the will of either party by written notice."
On a motion to dismiss, the trial court entered a summary judgment in defendant's favor dismissing plaintiff's complaint "on its merits."
Plaintiff predicates his right to damages on defendant's legal obligation not to cancel unjustly the franchise, which he traces to Wisconsin Statutes, 218.01 (3) (a) 17, enacted July 14, 1937. This act provides, among other things, for the suspension or revocation of a license of a manufacturer "who has unfairly, without due regard to the equities of said dealer and without just provocation, canceled the franchise of any motor vehicle dealer."
EVANS, Circuit Judge.
The legal questions argued on this appeal are many. Fortunately the factual issues are fewer and less controverted.
The Facts: Plaintiff alleges that he has held a Ford dealer franchise in Janesville, Wisconsin, since October, 1913; that the franchise has been renewed from time to time; the last renewal bears date of May 26, 1932; that he has equipped his garage to handle efficiently this agency and has expended $7600 in building a warehouse necessary for the assembling of Ford cars. He has purchased Ford parts, expended money and efforts in building up Ford trade believing that he would have the agency permanently; that he has put in over twelve hours a day in the work and has expended over $100,000, in building up the business. The contract of May 26, 1932, was a Ford standard dealer agency contract and contained a provision for termination as above stated. The defendant notified plaintiff, by registered mail, on September 25, 1937, that the agency was cancelled.
The defendant in its answer, in addition to claiming the absolute right to terminate, alleges that the plaintiff did not devote adequate time or attention to the agency, and alleges that it did not violate the subsections of the Wisconsin Statute which statute it contends is not applicable, first, because it is not retroactive and second, because it grants plaintiff no cause of action for money damages.
Defendant moved for a summary judgment and supported its motion with affidavits of its officers setting forth its corporate set-up; the location, number of its *619 agents, the volume of its business, its advertising methods and other facts which disclosed its policies and practices in reference to dealer agencies throughout the country.
The District Court granted defendant's motion; it made findings of fact and conclusions of law; dismissed the plaintiff's complaint on its merits. It made no finding on the constitutionality of the Wisconsin Statute. The court found the contract of May 26, 1932, to be a valid one, and gave to the defendant the lawful right to terminate the contract at any time without subjecting itself to liability for damages therefor. It also held that the statute had no retroactive effect; and that the statute created no cause of action for damages for violation thereof.
The legal questions are:
1. Is the Wisconsin statute (Wis.Stats. 218.01 (3) (a) 17) valid? Is it retroactive?
2. Is one aggrieved by the inexcusable cancellation of his dealer's contract entitled to maintain an action for damages because of this statute which provides for cancellation of the manufacturer's right to do business in the State of Wisconsin in case it inexcusably and unjustifiably cancels a dealer's agreement?
3. Was the last written agreement between plaintiff and defendant invalid because unilateral?
4. If invalid, were there valid contractual obligations binding on the parties on September 22, 1937, which made applicable the aforesaid Wisconsin statute?
Most sharply controverted is the question of the validity of the contract. Plaintiff contends that it lacks mutuality. In short, it is unilateral.
An examination of its terms, which are many, indicates that it was dictated by the manufacturer at Detroit, and drawn by its counsel with the avowed purpose of protecting the manufacturer to the utmost and granting, if any, few rights to, and the smallest possible protection of, the agent.
It is one which affords some support for the wisdom and the necessity of legislation which protects the weak against a strong party in situations like the instant one. The terms of this and other similar agreements had, no doubt, a causal bearing upon the passage of the legislation which the State of Wisconsin enacted in 1937. It cannot be ignored in considering the validity of such legislation.
Similar contracts have been before the courts on many occasions, and there are numerous decisions, entitled to weight and respect, which hold these contracts to be void for lack of mutuality. The case which most strongly supports plaintiff's position is Ford Motor Company v. Kirkmyer Motor Co., 65 F.2d 1001, a decision by the Circuit Court of Appeals of the Fourth Circuit. This decision in turn relies on Huffman v. Paige-Detroit Motor Car Co., 8 Cir., 262 F. 116. Likewise, two decisions of this court, Velie Motor Car Co. v. Kopmeier Motor Car Co., 7 Cir., 194 F. 324, and Oakland Motor Car Co. v. Indiana Automobile Co., 7 Cir., 201 F. 499, join in condemning agreements which are loaded with express obligations of one side and silent as to the obligations of the manufacturer. Jordan v. Buick Motor Co., 7 Cir., 75 F.2d 447, is another case (by this court) which followed the above-cited cases, and found the agreement there set forth to lack mutuality. Cited below are many cases which contain discussions of this question.[1]
Such disagreement as seemingly exists in the decisions may be partly attributed to the differences in the terms of the agreements under attack.
We are convinced that the agreement before us is not unilateral and is valid.
*620 Going at once to the most important paragraphs of the contract and the ones upon which defendant must chiefly rely to support its contention that the agreement is valid, we find the following:
"(1) Company agrees to sell and Dealer agrees to purchase Ford automobiles, * * * accessories and parts (hereinafter sometimes collectively referred to as Company's `Products') upon the terms, conditions and provisions hereinafter specifically set forth and subject to the right reserved to Company to sell to other Dealers and direct to retail purchasers in any part of the United States without obligations for any commission to Dealer on any such sale.
"(2) Company will sell its products to Dealer f. o. b. Detroit, Michigan, at such net list price, or at such discounts from published list prices as are from time to time fixed by Company. * * *
"* * *
"(5) `List Prices' of all Ford products shall be subject to change at any time and from time to time without obligation on Company to adjust with Dealer as to price of any product shipped, or paid for but not in transit, at the time such price change becomes effective.
"* * *
"(9) It is further mutually agreed that:
"Estimates
"(a) Dealer will furnish Company on Company forms, prior to December 31st of each year, an estimate of the number of Ford automobiles, trucks, cabs and chassis that Dealer will purchase from Company during each month of the succeeding year. Company agrees to give careful consideration to such estimates, but expressly reserves the right to follow or depart from such estimates according to its discretion. Company shall in no way be liable for any delay in shipments, however caused, nor for shipments over other than specified route.
"* * *
"(c) This agreement may be terminated at any time at the will of either party by written notice to the other party given either by registered mail or by personal delivery, and such termination shall also operate to cancel all orders theretofore received by Company and not delivered.
"* * *
"(e) This is a Michigan Agreement and shall be construed according to the laws of the State of Michigan. If any provision of this agreement is held to be invalid or unenforceable, this contract shall as to such provision be considered divisible and the balance of the agreement shall be valid and binding."
For appellant it is contended that the agreement to sell does not definitely specify the prices at which the product would be sold. Moreover, he argues that the contract was terminable at any time.
Vital and determinative are paragraphs 1 and 2. The first obligates defendant to sell, but upon "terms, conditions and provisions hereinafter specifically set forth." These conditions and terms are set forth in paragraph 2, which provides defendant "will sell its products to plaintiff f. o. b. Detroit, Michigan at such net list price, or at such discounts from published list prices as are from time to time fixed by Company." This seems, under the authorities and on reason, sufficiently definite.
The parties had been dealing with each other prior to the execution of the last contract. They knew of the practices of each other. The dealer knew that automobiles were redesigned and new models appeared yearly and as a result prices changed at least seasonally. Defendant's business was nationwide and its agents were many. It was to this known situation that the contract referred. The parties negotiated with a background of past dealings and mutual knowledge of the practices of the trade. "The net list prices and discounts from published list prices" appearing in paragraph 2 were well known to both parties. These net list prices and published list prices were the same to all dealers. They changed as necessity required. They were not lacking in definiteness, but provided a method whereby the prices could be definitely ascertained at any time.[2]
Having reached the conclusion that the agreement was valid and binding and therefore subject to cancellation by either *621 party upon the giving of written notice, the only remaining question is the effect of the Wisconsin statute upon such an existing contract.
We are convinced that the legislature did not intend to make its legislation, nor did the legislation, by its own terms, apply to and include existing contracts. We must give to it a construction which will avoid a successful attack on its unconstitutionality. Our conclusion is, therefore, that the Wisconsin statute in question did not apply to, or affect, existing valid contracts such as the one here in question.
It becomes unnecessary for us to consider the two other difficult and vexatious questions which appellant has raised.
The judgment is
Affirmed.
NOTES
[1] Chevrolet Motor Co. v. McCullough Motor Co., 9 Cir., 6 F.2d 212; Freiburger v. Texas Co., 216 Wis. 546, 257 N.W. 592; Erskine v. Chevrolet Motors Co., 185 N.C. 479, 117 S.E. 706, 32 A. L.R. 196; Bendix v. Staver Carriage Co., 174 Ill.App. 589; Chevrolet Motor Co. v. Gladding, 4 Cir., 42 F.2d 440; 32 A.L.R. 209; Ken-Rad Corp. v. R. C. Bohannan, Inc., 6 Cir., 80 F.2d 251; Case Note, 45 Harvard Law Review, page 378; Williston on Contracts, Sec. 1027 A; Bliss Furn. Co. v. Norris, 129 Mich. 11, 87 N.W. 1041; Wilkinson v. Heavenrich, 58 Mich. 574, 26 N.W. 139, 55 Am.Rep. 708; Bastain v. J. H. Du Prey Co., 261 Mich. 94, 245 N.W. 581; Motor Car Supply Co. v. General Household Utilities Co., 4 Cir., 80 F.2d 167, 170; Brooks v. Fed. Surety Co., 58 App. D.C. 56, 24 F.2d 884, 57 A.L.R. 745; E. I. Du Pont De Nemours & Co. v. Claiborne-Reno, 8 Cir., 64 F.2d 224, 89 A.L.R. 238; Ellis v. Dodge Bros., 5 Cir., 246 F. 764.
[2] Ken-Rad Corp. v. R. C. Bohannan, Inc., 6 Cir., 80 F.2d 251; Memphis Furniture Mfg. Co. v. Wemyss Co., 6 Cir., 2 F.2d 428; Moore v. Shell Oil Co., 139 Or. 72, 6 P.2d 216; Moon Motor Car Co. v. Moon Motor Car, Inc., 2 Cir., 29 F.2d 3.
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596 S.W.2d 924 (1980)
Gus MECEY, Appellant,
v.
Henry SEGGERN et ux., Appellees.
No. 13007.
Court of Civil Appeals of Texas, Austin.
March 12, 1980.
Rehearing Denied April 16, 1980.
*926 Harriet Samon Owen, Austin, for appellant.
Mark W. Owen, Owen, Jones & Bogart, Elgin, for appellees.
PHILLIPS, Chief Justice.
Between the years 1973 and 1976, appellees Henry and Molly Seggern, ranchers in Elgin, entered into approximately seven oral loan transactions and one written note with appellant Gus Mecey, owner and operator of a local tavern. Mecey advanced sums to the Seggerns for various farm improvements, feed, and a new truck. At the time of filing of suit in October, 1976, five of the loans had been repaid in full, two were not repaid, and one was paid in part.
The Seggerns filed suit against Mecey alleging that he had contracted for or received usurious interest on these transactions, and sought to recover statutory penalties, as provided by Tex.Rev.Civ.Stat.Ann. art. 5069-1.06 (1971), in the amount of $70,916.25 plus attorney's fees.
Mecey answered by specially denying that he charged the Seggerns usurious interest, by filing a cross-action for sums lent to the Seggerns but never repaid, and by counterclaiming for $100,000 in damages for an alleged slander by Henry Seggern. The slander cause of action was subsequently severed and the usury suit proceeded to trial on October 23, 1978.
Pursuant to a jury verdict, rendered in response to special issues, the trial court entered judgment in November of 1978 that the Seggerns be awarded $51,675 in statutory penalties, and $15,000 in attorney's fees. The judgment also provided for an additional $6,500 in attorney's fees if appeal was taken to the Court of Civil Appeals, and $4,000 if subsequently appealed to the Supreme Court. Mecey timely perfected his appeal to this Court and is before us on twelve points of error.
We overrule all points of error and affirm the judgment of the trial court.
I.
Initially, appellant complains that the trial court erred in holding oral contracts to lend money at interest to be governed by the usury statutes and, further, in failing to submit special issues requiring specific findings as to the existence of the elements of a contract.
"Article 5069-1.06 provides that any person who `contracts for, charges or receives' interest in excess of the amount authorized by law shall be liable for the penalties set forth in the article.... By describing the conditions precedent to recovery of penalties in the disjunctive, the Legislature made it clear that only one such condition need occur to trigger penalties; either a contract for, a charge of or receipt of usurious interest." Windhorst v. Adcock Pipe and Supply, 547 S.W.2d 260 (Tex.1977). (Emphasis added).
*927 Article 5069-1.02 provides:
"Except as otherwise fixed by law, the maximum rate of interest shall be ten percent per annum. A greater rate of interest than ten percent per annum unless otherwise authorized by law shall be deemed usurious. All contracts for usury are contrary to public policy and shall be subject to the appropriate penalties prescribed in Article 1.06 of this Subtitle." (Emphasis added).
This provision mirrors that in Tex.Const. art. XVI, § 11 (Supp.1980), as amended November 8, 1960:
"... [I]n the absence of legislation fixing maximum rates of interest all contracts for a greater rate of interest than ten percentum (10%) per annum shall be deemed usurious ...." (Emphasis added).
Both the Constitution and Article 5069-1.02 speak in terms of "all contracts." "All contracts" includes both oral and written agreements. Glenn v. McCarty, 130 S.W.2d 295, 301-2 (Tex.Civ.App.Amarillo), aff'd, 137 Tex. 608, 155 S.W.2d 912 (1941); Autocredit of Fort Worth, Inc. v. Pritchett, 223 S.W.2d 951 (Tex.Civ.App.Fort Worth 1949, writ dism'd).
The January 1973 loan of $3,000, May 1973 loan of $3,000, February 1974 loan of $8,000, 1975 loan of $7,900, and the 1975 fertilizer loan of $4,000 were completed transactions in which it was demonstrated that interest in excess of 10% had been charged and/or received by Mecey. This charge or receipt of usurious interest rightfully triggered the penalty provisions of Article 5069-1.06.
The $4,000 truck loan of 1973, the 1976 $7,500 note, and the 1976 $1,500 loan were transactions not fully executed. Appellees contend that "... there is no significant reason to differentiate between whether the ground of recovery is contracting for `usurious interest' or `charging' usurious interest. Here ... Mecey demanded payment of (or charged) the interest he contracted for." As to the truck loan of 1973, demand can be shown by a memo containing the language: "Due 7/15/75$1,900" and "Due 7/15/76 $1,700" and certain testimony by Mecey about this memo. Demand was shown as to the 1976 $7,500 note by a letter from the Bastrop County Attorney demanding payment from the Seggerns and by certain testimony by Henry Seggern. The letter from the County Attorney also dealt with the 1976 $1,500 loan. Demand was further shown by Mecey's attempt to cash the Seggerns' $1,800 check.
In reviewing the meaning of the word "charging," this Court in Moore v. Sabine National Bank of Port Arthur, 527 S.W.2d 209, 212 (Tex.Civ.App.Austin 1975, writ ref'd n. r. e.), determined that "... a charge could be ... `an act by the promisee constituting or implying a demand for its payment, e. g., the inclusion in a statement of indebtedness submitted to the debtor.'" (Emphasis added). See also: Tanner Development Company v. Ferguson, 561 S.W.2d 777, 788-9 (Tex.1977). The above testimony and exhibits are evidence of the charging of interest above that allowed by law. As such, it was not required that the trial court require a finding as to the elements of a contract. Windhorst v. Adcock Pipe and Supply, supra; Tanner Development Company v. Ferguson, supra.
Mecey claims that this cause is governed by Articles 5069-1.03 and 5069-1.04. We disagree. In the case at bar, we are not called upon to determine what rate of interest should have been allowed between the parties, but if the interest actually charged by Mecey was, as a matter of law, usurious. Thus, Articles 5069-1.03 and 5069-1.04 are inapplicable.
Appellant also alleges that the usury statutes apply only to those who lend in the ordinary course of their business. Article 5069-1.06 provides that "any person who contracts for, charges or receives" usurious interest is liable for the penalties under the statute. Article 5069-1.01(e) defines a person as:
*928 "... an individual, partnership, corporation, joint venture, trust, association or any legal entity, however organized." (Emphasis added).
Mecey is an individual. The statute requires no precise organization. The record shows that more than one transaction was entered into by the parties. The abundance of checks, stubs and memoranda that are exhibits in this case, show at least some organization on the part of Mecey. Accordingly, Mecey was within the class of persons regulated by the usury laws.
Mecey argues, under point of error one, that the application of the usury statutes to him, as an individual, violates the due process requirements of the 14th Amendment to the United States Constitution and Article I, §§ 13 and 19 of the Texas Constitution. Specifically, he claims that Articles 5069-1.03 and 5069-1.04 are unconstitutionally vague when applied to an oral contract by a lender not organized to lend money.
As has been demonstrated, these two provisions are inapplicable to the case at bar, and, thus, we are not required to reach the constitutional argument as to them. This cause is governed solely by the provisions of Articles 5069-1.02 and 5069-1.06. Appellant does not argue the constitutionality of these statutes. Under Rule 418(e), Texas Rules of Civil Procedure (Supp.1980), points of error are required to be supported by argument and authority, and if not supported, the points are waived. Rayburn v. Giles, 182 S.W.2d 9 (Tex.Civ.App. San Antonio 1944, writ ref'd); Ranger Insurance Co. v. Rogers, 530 S.W.2d 162 (Tex.Civ.App. Austin 1975, writ ref'd n. r. e.).
Appellant in point of error three complains that "... the Court erred in entering judgment ... on the verdict of triple interest and return of principal...."
Article 5069-1.06[1] provides:
"(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received ...
"(2) Any person who contracts for, charges or receives interest which is in excess of double the amount of interest allowed ... shall forfeit as an additional penalty, all principal as well as interest ..." (Emphasis added).
The trial court allowed recovery of principal, interest and double interest on each transaction where the amount of interest paid was double that allowed by statute. It was correct in so doing. "... Subsection two authorizes a recovery of double the interest rate contracted for, charged or received, a refund of all interest paid and other charges, and a forfeiture of all of the principal." Symposium, Texas Usury Law, 10 St. Mary's L.J. 687, 861-2 (1979); Lafferty v. A.E.M. Developers and Builders Co., 483 S.W.2d 279, 282 (Tex.Civ.App.San Antonio 1972, writ ref'd n. r. e.); Watson v. Cargill, Inc., Nutrena Division, 573 S.W.2d 35, 42 (Tex.Civ.App.Waco 1978, writ ref'd n. r. e.).
Mecey also asserts that there is "... no evidence that the insertion of 10% interest [in a 1975 $7,500 note] was not the result of a bona fide error."
Here, Mecey seeks to come within the provision of Article 5069-1.06(1) which provides: *929 "... there shall be no penalty for a violation which results from an accidental and bona fide error."
In determining whether there is no evidence to back up the finding of no bona fide error, we must "... view the evidence in its most favorable light in support of the finding of the vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding." Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 364 (1960); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950).
Mecey testified that Truman Olsen, Vice-President of Elgin Bank, was asked to make out a note for $7,500 "interest included." Olsen testified that Mecey gave him the figures to be inserted in the note. Mecey admitted reading the document after he picked it up at the bank. There was evidence to support the finding of no bona fide error.
In the alternative, appellant asserts that there is not sufficient evidence in the record that the insertion of the 10% figure was not bona fide error.
To determine whether the evidence was sufficient, this Court must "... consider and weigh all of the evidence in the case and ... set aside the verdict and remand the cause for a new trial, if it... concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust ... The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict." In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, supra.
Mecey testified that insertion of the 10% figure was error. Banker Olsen testified that he couldn't remember whether Mecey told him to insert the 10% figure but then admitted on cross-examination that "... here all I did was fill in the figures he gave me." Mecey admitted he read the note after picking it up at the bank, but he did not remember the 10% provision. Mecey claimed 10% interest was due on the note when he filed a claim with the bankruptcy court. There was sufficient evidence on this question to present a jury question, and their determination that the insertion of the 10% provision was not bona fide error is not so against the great weight and preponderance of the evidence as to be manifestly unjust.
II.
Appellant asserts that the "... trial court erred in granting any sums for attorney fees to plaintiff, because his attorneys testified that they had a `contingent fee' contract with plaintiff, and a contingent fee is one paid out of the sums granted plaintiff, and is not an additional award to plaintiff to be paid by defendant."
Although the Seggerns and their attorneys had a contingent fee contract, the trial court properly set attorney's fees. A contingent fee agreement is merely one of the factors that the trial court may take into account when determining what is a reasonable fee. Braswell v. Braswell, 476 S.W.2d 444, 446 (Tex.Civ.App.Waco 1972, writ dism'd).
"It is the responsibility of the trier of the facts to determine what is the reasonable value of an attorney's services ... the court tried the case, heard evidence relating to the time and value of the services rendered Appellant and had knowledge of all other attending circumstances." Harlow v. Southern Farm Bureau Casualty Insurance Company, 439 S.W.2d 365, 368-69 (Tex.Civ.App.Austin 1969, writ ref'd n. r. e.); Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, 160-61 (1945). The question of excessiveness was presented to the court by the parties, and the court apparently found it to be without merit. The amount found by the court was within *930 the limits of the evidence presented. "A court of civil appeals has authority, in looking at the entire record to determine whether an award of attorney's fees is excessive, to draw on the common knowledge of the justices of the court and their experience as lawyers and judges, and to view the matter in the light of the testimony, the record, and the amount in controversy." McFadden v. Bresler Malls, Inc., 548 S.W.2d 789, 790 (Tex.Civ.App.Austin 1977, no writ). We have reviewed the record and do not find that the sum awarded is excessive under the record as presented.
Appellant also argues that granting $6,500 in attorney's fees for appeal to the Court of Civil Appeals and $4,000 for appeal to the Supreme Court was error because "... there is no provision in the usury statutes for attorney fees for appeal."
In International Security Life Insurance Company v. Spray, 468 S.W.2d 347 (Tex. 1971), the Court held:
"The purpose of the statute [Tex.Ins.Code Ann. art. 3.62] would be defeated if only the fees incurred in the trial court were recoverable ... When it imposes liability on the company for `reasonable attorney fees for the prosecution and collection of such loss,' it includes all fees incurred for that purpose." 468 S.W.2d 347, at 349. (Emphasis added).
Under the authority of Spray and the wording of Article 5069-1.06, we hold that there is provision in the usury statutes for appellate attorney's fees.
Appellant further alleges that "The trial court erred in granting any attorney fees to plaintiff because the trial court did not hear evidence on attorney fees until after the verdict was received and filed, and such testimony came too late to be considered by the court, in violation of Rule 270, Tex.R.Civ.Proc."
The trial court proposed that the hearing of evidence as to attorney's fees be postponed until a verdict was returned by the jury. The record does not reflect that either party objected to this procedure.
"In order to raise a question in an appellate court the general rule is that the record must show a proper objection, motion or request was timely made in the trial court and overruled, and that such action of the court was excepted to by the complaining party ... George v. Senter, 194 S.W.2d 290 (Tex.Civ.App., 1946, error ref. n. r. e.); Preston State Bank v. National Union Fire Insurance Co., 320 S.W.2d 184 (Tex. Civ.App.1958, no writ history); McKnight v. Renfro, 371 S.W.2d 740 (Tex.Civ.App., 1963, error ref. n. r. e.); Baker v. Marable, 373 S.W.2d 377 (Tex.Civ.App., 1963, no writ history)." Marek v. Baylor County, 430 S.W.2d 220, 222 (Tex.Civ.App.Eastland 1968, writ ref'd n. r. e.). Having failed to object in the trial court and preserve the point for appeal, appellant has waived his right to complain.
III.
Appellant claims that the overruling of a motion in limine to keep out two checks from third parties, which were allegedly payments to Mecey for the Seggerns' benefit, was reversible error. He further claims that the checks constituted hearsay evidence and that their admission caused rendition of an improper judgment.
The overruling of the motion, itself, is not reversible error. The Supreme Court in Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963), has held that, "... although the overruling of a motion in limine may be error, it is never reversible error." (Emphasis added).
Appellant contends that certain checks, from Ray Randolph and Victor Stern, were offered to prove "... that payments for the benefit of Seggern had been made by a third party ..." and that, as such, they constituted hearsay evidence.
"Evidence of a statement made out of court when such evidence is offered for the purpose of proving the truth of such previous *931 statement, is inadmissible as hearsay." 1 C. McCormick & R. Ray, Texas Law of Evidence, § 781 (2d ed. 1956). However, "... it is only where proof of some one's [sic] out-of-court assertion is used as proof of the fact asserted, that evidence is hearsay. Many utterances and writings out of court may obviously be proved without coming within this class. Most obviously is this true where the words proven constitute a necessary part of the cause of action or defense, or as is sometimes said, are `operative' facts, or part of the `ultimate issue.'... The utterance or writing of the words is itself the fact to be proved, and if evidence of such utterance or writing be given by one who testifies to it as a matter of personal knowledge, it is obviously not hearsay." McCormick and Ray, supra, § 795.
The Randolph transaction was part of a 1975 loan involving a $2,000 annual lease on Mecey's land. "Plaintiff plead [sic] that $1,000 of the lease payment for the year 1975 was a part of a 1975 loan which all agree was repaid in the amount of $10,000. Gus Mecey contended that the entire $2,000 was a part of the loan." In regard to this question of what amount was actually loaned, Seggern testified that Randolph used part of the pasture and that Mecey accepted Randolph's check in payment of half of the lease money. The check was admittedly endorsed by Mecey and was introduced into evidence.
The same error is alleged in regard to a $3,400 check from Stern. Mecey loaned the Seggerns $8,000 by check. "As a defensive matter, Mecey contended that a $2,000 check dated in December of the preceding year and payable to ... Seggern was a part of this loan. Seggern denied this and stated the $2,000 represented part of a separate loan which was repaid in December of 1974 by directing ... Stern to make out his check in payment for a truck purchased from ... Seggern to ... Mecey instead."
In both transactions, the checks were probative evidence as to the issue of how much money was loaned by Mecey. As such, they were a necessary part of the Seggerns' cause of action. The writing of the words (amount, payor, payee and endorsee) on the check was the fact to be proved. The check was properly authenticated and was not hearsay.
IV.
Appellant also asserts error in the trial court's refusal to permit evidence as to his reputation for truth and veracity.
The rule as to the admissibility of character reputation was set out in Grant v. Pendley, 39 S.W.2d 596, 599 (Tex.Com.App.1931, holding approved):
"... supporting evidence of good character, either for truth and veracity or honesty and fair dealing, should only be admitted in those cases where the nature of the action directly involves the character of a party, where a witness has been impeached, or where a party by his pleadings or evidence charges his adversary with the commission of a crime involving moral turpitude."
See: Waggoman v. Fort Worth Well Machinery and Supply Co., 124 Tex. 325, 76 S.W.2d 1005, 1006 (1934); Twin City Fire Insurance Co. v. Gibson, 488 S.W.2d 565, 575 (Tex.Civ.App.Amarillo 1972, writ ref'd n. r.e.).
The record in this case reflects impeachment testimony used by appellees' attorney that reflected on Mecey's character. The impeachment was by way of prior inconsistent statements in Mecey's deposition as to the exact amount due July 15, 1975, and certain inconsistent statements as to Randolph's check. The trial court's failure to allow Mecey to rehabilitate himself as a truthful witness was error.
Although the refusal to allow evidence as to Mecey's character was error, it was harmless error. Rule 434, Texas Rules of Civil Procedure.
"Whether admission of this evidence is harmless or reversible error may be determined *932 in some measure ... by the test applied in Grant v. Pendley .. as to whether the contradictory testimony by virtue of which it was admitted related to a `material issue' presented to the jury. The contradictory testimony .. was evidentiary only on an issue not submitted to the jury in the present case, and was not material to any ultimate issue of recovery or defense. The evidence as to his reputation related to . . credibility, but under the jury findings and the entire record we think it did not probably cause rendition of an improper judgment. See State v. O'Dowd, 158 Tex. 348, 312 S.W.2d 217, 220." Livestock Feeder Company v. Few, 397 S.W.2d 297, 299 (Tex.Civ.App.Waco 1965, writ ref'd n.r.e.); Twin City Fire Insurance Co. v. Gibson, supra. (Emphasis added).
The character evidence here related to the topic of Mecey's reputation for truth and fair dealing. This issue referred to Mecey's credibility and was collateral to the ultimate issues of the case. Failure to allow the evidence did not cause rendition of an improper judgment.
V.
Finally, appellant claims that the trial court erred in severing Mecey's cross-action for slander.
The trial court has broad discretion in determining the propriety of severance and such discretion will be overturned only on a clear showing of abuse. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 682 (1956); Sheppard v. Citizens National Bank of Austin, 567 S.W.2d 613, 615 (Tex.Civ.App. Austin 1978, writ ref'd n.r.e.).
From the issues, the trial court could have determined that severance was proper to prevent confusion of the issues and committed no abuse of discretion in so ordering.
The judgment of the trial court is in all things affirmed.
SMITH, J., not sitting.
NOTES
[1] Article 5069-1.06(1) was amended by Acts 1979, 66th Leg., p. 604, ch. 281, § 1, effective Aug. 27, 1979:
"(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor three times the amount of usurious interest contracted for, charged or received, such usurious interest being the amount the total interest contracted for, charged, or received exceeds the amount of interest allowed by law, and reasonable attorney fees fixed by the court except that in no event shall the amount forfeited be less than Two Thousand Dollars or twenty percent of the principal, whichever is the smaller sum; provided, that there shall be no penalty for any usurious interest which results from an accidental and bona fide error."
As this amendment was not enacted until after the passage of all time periods pertinent to this appeal, it is not controlling of this cause.
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123 F. Supp. 70 (1954)
HARREL et al.
v.
ATLANTIC REFINING CO.
Civ. A. No. 3765.
United States District Court E. D. Oklahoma.
July 22, 1954.
*71 James F. Bennett, Duncan, Okl., for plaintiff.
Villard Martin and Garrett Logan, Tulsa, Okl., for defendant.
WALLACE, District Judge.
The plaintiffs, E. O. Harrel, C. F. Rudder, and W. H. Rudder, instituted this action against the defendant, The Atlantic Refining Company, a corporation, to gain a declaration of forfeiture of an oil and gas lease previously executed by the plaintiffs and to recover damages for defendant's failure to release the property in question. The defendant oil company has moved for summary judgment and urges that the plaintiff's pleadings show the instant action to be premature.
Plaintiffs allege in substance that on June 15, 1950, they executed and delivered to one Warren Shear, an oil and gas lease on certain land located in Stephens County, Oklahoma, who subsequently assigned this lease to the defendant. The portions of the lease pertinent to the present controversy provide:
"If no well be commenced on said land on or before the 15th day of June 1951, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor or to the lessor's credit in the First State Bank at Elmore City, Oklahoma or its successors * * * the sum of Seven and 50/100 Dollars, which shall operate as rental and cover the privilege of deferring the commencement of a well for twelve months from said date. * * * In like manner and upon like payments or tenders the commencement of a well may be further deferred for periods of the same number of months successively. * * *
"Should the first well drilled on the above described land be a dry hole, then and in that event, if a second well is not commenced on said land within twelve months from the expiration of the last rental period for which rental has been paid, this lease shall terminate as to both parties, unless the lessee on or before the expiration of said twelve months shall resume the payment of rentals in the same amount and in the same manner as hereinbefore provided. * * *"
Plaintiffs further allege that all delay rentals up to and including June 15, 1952, were paid; that in August, 1952, a test well was drilled for oil and/or gas and soon thereafter abandoned as a dry hole; that inasmuch as no delay rental was paid between June 15, 1952, and June 15, 1953, the lease terminated on June 15, 1953.
Plaintiffs assert that even though a test well was drilled by the defendant in August of 1952, it was incumbent on the defendant to pay delay rentals prior to June 15, 1953, in order to keep the lease in effect. Such an interpretation appears to be contrary to the express wording of the lease provision which *72 states, "Should the first well drilled on the above described land be a dry hole, then and in that event, if a second well is not commenced on said land within the twelve months from the expiration of the last rental period for which rental has been paid, this lease shall terminate * * *". In order to ascribe any meaning to this just-quoted provision it must be construed as furnishing an alternative to the lessee insofar as drilling the first well is concerned; that is, an alternative of either drilling such test well or paying the delay rental payment. Admittedly, the dry hole drilled by the defendant in August of 1952 was the first well drilled on the leased land and the "expiration of the last rental period for which rental has been paid" fell on June 15, 1953. Thus, the defendant had twelve months from such expiration to either drill a second well or resume delay rental payments. Naturally, if the drilling of the first well did not take the place of a delay rental payment, it would be nonsensical to provide in the lease that if a second well was not drilled within twelve months from the expiration date of the last rental payment that the delay rental payment should be resumed. There can be no resumption unless prior thereto a delay rental payment had been excused; and, the express wording makes it abundantly clear that the twelve months grace earned by the lessee in drilling the first well was to be counted from the time the last paid rental expired, that is, June 15, 1953.
The Kansas Court in Wilson v. Wakefield[1] made this same application in construing a lease which contained provisions almost identical to the ones under consideration. In pointing up the reasonableness of such interpretation, an application in conformity with the lessor's desire to contract to encourage the development of the land, the Court observed:
"* * * Certainly the provision for the commencement of a well within the first year was of vital importance to lessors, as well as to lessee. Production and diligent operation are ordinarily prime objectives in the granting of oil and gas leases. If production is found in paying quantities, the royalties ordinarily far exceed the delay rental. On the other hand, the expense to lessee of completing a well obviously far exceeded the delay rental. * * *"
Although the completed dry hole in the Wilson case, supra, occurred during the first twelve months of the life of the lease, the Court's reasoning therein applies with equal or more force to the facts in the instant case. The lessors in the Wilson case contracted to accept a test well, even though a dry hole, in the place of a delay rental payment in order to get a well drilled on the land. Likewise, in the instant case the lessee having drilled this first well was under no compulsion to pay delay rental for the twelve months succeeding the last paid up delay rental period.[2]
Inasmuch as the instant lessee had twelve months from June 15, 1953, the expiration date of the last rental payment, to either drill a second well or resume rental payments to defer further *73 drilling, this action was filed prematurely.
Counsel should submit a journal entry which conforms with this opinion within 15 days.
NOTES
[1] 1937, 146 Kan. 693, 72 P.2d 978, 980.
[2] As observed in the Wilson case, footnote 1, supra, 72 P.2d at page 980: "We approach the problem from another angle. The consideration mentioned in paragraph 1 relieved lessee of doing anything prior to October 10, 1936. Had he not drilled during the first year he would have been obliged to pay a `delay rental' not later than October 10, 1936, in order to keep the lease alive. What is a `delay rental'? In paragraph 3 of the lease it is defined as `The privilege of deferring the commencement of a well for twelve months from said date.' The date referred to is October 10, 1936. The lessee, however, not only had commenced a well but had completed the well during the first year. Then what occasion was there for him to pay for the privilege of deferring the commencement of the first well which he had already completed? Obviously none."
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465 A.2d 379 (1983)
Theodore S. CHACONAS, Appellant,
v.
Bertram H. MEYERS, et al., Appellees.
No. 82-555.
District of Columbia Court of Appeals.
Argued June 8, 1983.
Decided August 2, 1983.
*380 John William Mannix, Washington, D.C., for appellant.
David E. Schreiber, Washington, D.C., for appellees.
Before NEWMAN, Chief Judge, TERRY, Associate Judge, and KELLY, Associate Judge, Retired.
KELLY, Associate Judge, Retired:
This is an appeal from an order of the trial court granting appellees' request to establish a prescriptive right-of-way across the northern portion of appellant's property for the purposes of placing garbage for weekly collection in a public alley and gaining access to and from a nearby street. As grounds for its order, the court found that appellees had presented a prima facie case for a prescriptive easement and that appellant had not rebutted the resulting presumption of adverse user. The court also ruled in the alternative that appellees established by the preponderance of the evidence their entitlement to a prescriptive easement.
After reviewing the record, we conclude that appellees' evidence of an open, notorious and exclusive user for the statutory period raised a presumption that the user was adverse, but that this presumption was rebutted by testimony establishing that appellees' use was, at the least, with appellant's implicit permission. Accordingly, we reverse the trial court's order granting appellees a prescriptive easement across appellant's land, finding it to be clearly erroneous and without evidence to support it.
I
Appellees are the respective trustees of two trusts in which is vested joint ownership of a parcel of land, Lot 868 in Square 1209 of the District of Columbia, commonly known as 3061 M Street, N.W. Appellant similarly is trustee of a trust in which is vested ownership of the alleged servient estate in this case, Lot 869 in Square 1209 in the District of Columbia, commonly known as 3063 and 3065 M Street, N.W. Lot 869 is contiguous with and immediately to the west of Lot 868.
*381 Lot 868 was purchased in 1941 by appellees'[1] predecessors in interest, Mr. and Mrs. Harry Meyers. The following year they erected the structure which presently stands on that site, operating it as a store on the ground level from 1941 until 1966 and residing with their family in the apartment above from 1942 until 1967. Since 1967, the property has been leased to a variety of commercial and residential tenants. In 1977, Mr. and Mrs. Meyers conveyed a one-half interest in the property each to the Bertram Meyers Trust and to the Lois M. Vogel Trust. Ownership of Lot 869 has rested with appellant and appellant's predecessors in interest, Mr. and Mrs. Theodore H. Chaconas, at all times since before 1941 to the present. For many years the property was used as a residence by the Chaconas family and more recently has been leased for commercial and residential use.
The testimony at trial in support of appellees' claim of a prescriptive easement established that, beginning in 1942 and lasting for the entire period of their residence, members of the Meyers family periodically crossed the rear, northern portion of appellant's land (Lot 869), within a width of approximately five feet from the northern boundary line, in order to obtain access from the northwest corner of appellees' property (Lot 868) to the public alley which extended, west to east, from 31st Street to the northwest corner of appellant's adjacent land. The testimony further established that this use was for the purposes of placing accumulated household garbage in the alley for weekly collection and of gaining access to and from 31st Street. The trial court determined that this use was open, notorious, continuous, exclusive and adverse for a period of twenty-five years. It further found that this use, although with the knowledge and acquiescence of appellant, was without permission and that appellant did not meet its burden of introducing evidence to contradict appellees' prima facie case and resulting presumption that the use was adverse. Alternatively, the court found that appellees had proved by a preponderance of the evidence that they acquired a prescriptive right across the northern portion of appellant's lot.
Appellant contests these findings. Conceding all other elements requisite to proving an easement by prescription, he claims that the evidence did not establish by a preponderance of the evidence that appellees' use was adverse.
II
The law governing the creation of prescriptive easements is clear. "Effective user to establish a prescriptive easement must be open, notorious, exclusive, continuous and adverse," Umhau v. Bazzuro, 76 U.S.App.D.C. 394, 396, 133 F.2d 356, 358 (1942) (citing Reid v. Anderson, 13 App.D.C. 30 (1898) (adverse possession)); accord Johnsen v. Crosby, 109 U.S.App.D.C. 390, 288 F.2d 374 (1960) (per curiam) (Danaher, J., concurring),[2] for the statutory period of fifteen years. See D.C.Code § 12-301(1) (1981); Aleotti v. Whitaker Brothers Business Machines, Inc., 427 A.2d 919, 922 (D.C. 1981); accord Zlotnick v. Jack I. Bender & Sons, Inc., 285 F.Supp. 548, 553 (1968).[3] The burden of establishing such user by a *382 preponderance of the evidence, see Johnsen v. Crosby, supra (Danaher, J., concurring), rests upon the claimant. Baltic Investment Co. v. Perkins, supra note 3, 154 U.S.App. D.C. at 383, 475 F.2d at 967.
"[A] user is adverse if not accompanied by any recognition, in express terms or by implication, of a right in the landowner to stop such use now or at some time in the future." Manos v. Day Cleaners & Dyers, Inc., 91 Ohio App. 361, 363, 108 N.E.2d 347, 349 (1952) (quoting 2 TIFFANY ON REAL PROPERTY § 519, at 2042 (2d ed.)).[4] The element of adverse user may be established by evidence that the claimant's use was under a claim of right, see Aleotti v. Whitaker Brothers Business Machines, supra, 427 A.2d at 921-22, or may be presumed from proof of a prima facie case of open and continuous use for the appropriate statutory period in the absence of contrary evidence. See Kogod v. Cogito, 91 U.S.App. D.C. 284, 286, 200 F.2d 743, 745 (1952); accord Baltic Investment Co. v. Perkins, supra note 3, 154 U.S.App.D.C. at 383, 475 F.2d at 967.[5] Hence, where a claimant relies upon a presumption of adverse user, the landowner may rebut that presumption with contrary evidence of permissive use, either express or implied. Id.
III
In granting appellees a right-of-way across appellant's land, the trial court found that appellees presented a prima facie case of open and continuous use for the statutory prescriptive period; that this use was presumptively adverse; and that appellant had presented no evidence to the contrary. It stated: "There is no evidence before this Court whatever that the Chaconas family ever expressed orally or otherwise permission to the Meyers family that they could make use of Lot 869." By so ruling, the court ignored testimony from witnesses for both sides which established a history of interaction between the parties both generally and specifically during instances of appellees' use of Lot 869.
Through the testimony of two witnesses,[6] appellant attempted to prove that the use of its land by appellees was the product of friendship and neighborly accommodation. Harry Chaconas testified that the Chaconas family frequently encountered appellees carrying their garbage as they crossed Lot 869 and exchanged pleasantries with them. He stated that his family never sought to stop this use of their land. Indeed, they agreed with it, viewing it to be an easier way for the Meyers to rid themselves of their trash, and evidenced their neighborliness by stopping to chat with the Meyers as they passed through.
This testimony was echoed by that of Bertram Meyers, a witness for appellees. During cross-examination, Mr. Meyers admitted that he and his family got along well with the Chaconas family. From time to time, they would run into each other as the Meyers crossed the Chaconas' yard and would stop to say hello. Although permission to cross the Chaconas' yard was never granted explicitly, neither was permission *383 ever requested by the Meyers. Nonetheless, no one in the Meyers family was ever prevented from using the path.[7]
In addition, witnesses from both sides testified that the Chaconas' family dog, Corky, ruled the backyard roost, frequently presenting a noisy obstacle to quiet passage until brought inside by a member of the Chaconas household. Bertram Meyers testified that Corky roamed freely throughout the Chaconas' yard all the way to the post office wall which abutted the Chaconas' property on the north side. Lois Meyers Vogel stated that she was afraid of all dogs and that she would not enter the Chaconas' backyard until certain that Corky was not on the loose. She often requested her husband or brother to precede her into the yard to verify his whereabouts. Appellant Theodore S. Chaconas described Corky as a feisty dog who always barked at those crossing the yard, creating a nuisance. And further, Harry T. Chaconas testified that people crossing the yard often carried a broom to keep the dog away. Frequently when he was at home, he would come out in response to Corky's barking and would restrain the dog in order to permit whoever was there to cross the yard in peace.
We find that the testimony of these witnesses and the inferences to be drawn therefrom presented sufficient contrary evidence of permission to rebut appellees' presumption of adverse user. The frequent face-to-face encounters with members of the Meyers family and their garbage presented the Chaconas family with equally frequent opportunities to object to this use of their land; yet they never did. Instead, they engaged in friendly conversation and, further, affirmatively facilitated the Meyers' passage by restraining their vociferous pet. See, e.g., Stubblefield v. Osborn, 149 Neb. 566, 31 N.W.2d 547 (1948) (friendly conversation with landowner during claimant's use was one factor indicating that the use was permissive). Accordingly, we hold that appellant sustained his burden of presenting evidence contrary to appellees' presumption of adverse user. The trial court's finding to the contrary was plainly wrong. See D.C.Code § 17-305(a) (1981).
IV
The court ruled in the alternative that appellees established by the preponderance of the evidence that a right-of-way existed across Lot 869. Implicit in this ruling was a finding that appellees proved by a preponderance of the evidence that their use was adverse, i.e., under a claim of right.
Where based upon the assertion of a claim of right, "[t]he determination of adversity... focuses essentially on factual manifestations of claimed ownership." Aleotti v. Whitaker Brothers Business Machines, Inc., supra, 427 A.2d at 921. "[A]dverse use must be established by circumstances which reflect a claim of right to a reasonably attentive owner." Id. "It is not sufficient that the claim of right exists only in the mind of the person claiming it. It must in some way be asserted in such manner that the owner may know of the claim." LaRue v. Kosich, 66 Ariz. 299, 303, 187 P.2d 642, 645 (1947) (emphasis removed) (quoting Clarke v. Clarke, 133 Cal. 667, 670, 66 P. 10, 11 (1901)). In this regard, it has been written that adversity is a state of mind, proof of which must rely "upon outward manifestations of the mental processes of the persons claiming the easement and the ones against whom it is claimed. This is primarily a fact problem, difficult of proof." Hazek v. Greene, 51 N.J.Super. 545, 553, 144 A.2d 199, 203-04 (1958).
Hence, where not established by a presumption of adversity, see Kogod v. Cogito, supra; accord Baltic Investment Co. v. Perkins, supra note 3, the question whether the use of another's land is under a claim of right, ripening into an easement by prescription, *384 or is used as a mere neighborly accommodation, thereby remaining at most a license or permissive use, is one of fact to be determined by the trial court in light of the relation of the parties, their conduct, the situation of the property, and all the surrounding circumstances. Aleotti v. Whitaker Brothers Business Machines, Inc., supra; accord Kammerzell v. Anderson, 69 Wyo. 252, 240 P.2d 893 (1952); Sachs v. Toquet, 121 Conn. 60, 183 A. 22 (1936);[8]Bernstein v. Dodik, 129 Cal.App. 454, 18 P.2d 983 (1933); see also 2 THOMPSON ON PROPERTY § 344, at 225 n. 21 (1980 Repl.) (citing Sachs v. Toquet, supra), § 350, at 284 ("The question whether a use was merely permissive, exercised under a mere license or whether it was adverse under a claim of right, is one of fact."). Our standard of review, therefore, is limited to determining whether the court's findings are plainly wrong or without evidence to support them. Aleotti v. Whitaker Brothers Business Machines, Inc., supra, 427 A.2d at 921; see D.C.Code § 17-305(a) (1981).
The sole testimony presented by appellees which arguably embraced the assertion of a claim of right by appellees to cross Lot 869 was articulated by Bertram Meyers. Mr. Meyers testified that in 1978 he requested that the Chaconas family remove a fig tree which had grown up in front of, and ultimately blocked, the gate which led from Lot 868 (the Meyers' backyard) to Lot 869 (the Chaconas' backyard). He stated further that "they" (presumably the Chaconas family) did remove the tree.
Theodore S. Chaconas, testifying on appellant's behalf, admitted receiving a letter to this effect from Bertram Meyers but stated that he did not respond to it. The letter, he stated, was received concurrent to the construction by appellant's tenants of a restaurant on Lot 869. With excavation for that purpose by the tenants, the fig tree as well as all the other bushes and trees in the area apparently were removed.
Assuming that this request by Betram Meyers, on its face, constituted an assertion of a claim of right by appellees to continue to cross appellant's property, the testimony of Theodore Chaconas effectively clarified appellant's apparent acquiescence to that claim. At best, the question whether the removal of the offending tree evidenced appellant's acquiescence to appellees' alleged claim of right remained ambiguous. Cf. Aleotti v. Whitaker Brothers Business Machines, Inc., supra, 427 A.2d at 921-22 (reasonable to infer that landowner acquiesced to the use by claimant of a right-of-way where obstruction of the way was removed shortly after objection by claimant, and other evidence supported the inference of an assertion of a claim of right). Our independent review of the record has produced even less support for appellees' claim of adverse use.[9]
As discussed earlier, the testimony established that the relationship between the Meyers and the Chaconas families was friendly and their conduct inter se was neighborly. Further, witnesses for both sides testified that Corky, the family dog, often impeded free crossing of the property and that members of the Chaconas family actively facilitated passage of their property by restraining their dog. This atmosphere of neighborly accommodation evidences more than mere acquiescence. We conclude that it demonstrates the Chaconas family's tacit approval of, and implied permission for, the Meyers' use of their land, granted sub silentio at each encounter. See *385 Umhau v. Bazzuro, supra, 76 U.S.App.D.C. at 396, 133 F.2d at 358 (dicta);[10]accord Finley v. Botto, 161 Cal.App.2d 614, 327 P.2d 55 (1958); Norwick v. Edelman, 204 Misc. 915, 128 N.Y.S.2d 312 (1953); Stubblefield v. Osborn, supra; LaRue v. Kosich, supra.[11] Arising out of friendship and neighborly accommodation, appellees' use of Lot 869 could not ripen into an easement by prescription.[12]
Accordingly, we hold that appellees failed to carry their burden of establishing by the preponderance of the evidence the existence of a prescriptive easement across the northern portion of appellant's land. The trial court's contrary finding was without evidence to support it. See D.C.Code § 17-305(a) (1981).
Reversed and remanded for entry of judgment in accordance with this opinion.
NOTES
[1] For sake of convenience, we refer jointly to the named trustees and the trusts which they represent as "appellees" and "appellant" respectively.
[2] The RESTATEMENT OF PROPERTY § 457 (1944), states:
An easement is created by such use of land, for the period of prescription, as would be privileged if an easement existed, provided the use is (a) adverse, and (b) for the period of prescription, continuous and uninterrupted.
[3] But see Baltic Investment Co. v. Perkins, 154 U.S.App.D.C. 380, 382 n. 4, 475 F.2d 964, 966 n. 4 (1973) (commenting upon the apparent conflict between D.C.Code § 12-301(1) (1967), limiting the time for bringing actions for the recovery of lands, tenements, or hereditaments to fifteen years, and D.C.Code § 16-3301 (1967), establishing a twenty year maximum tolling period for saving the right of infants or others under legal disability to file an action to quiet title obtained by adverse possession).
[4] According to the RESTATEMENT OF PROPERTY, supra, § 458:
A use of land is adverse to the owner of an interest in land which is or may become possessory when it is
(a) not made in subordination to him, and
(b) wrongful, or may be made by him wrongful, as to him, and
(c) open and notorious.
[5] Appellant's assertion that our case law has not adopted this presumption of adverse user is incorrect. A review of the facts of both decisions cited in the text, Baltic Investment Co. v. Perkins and Kogod v. Cogito, demonstrates that the language enunciating the presumption was, in each case, more than mere obiter dictum; application of the presumption disposed of each appeal. See M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971).
[6] These witnesses were: Harry T. Chaconas, the son of Theodore H. Chaconas, appellant's predecessor in interest, who lived on Lot 869 from his birth in 1906 until 1970 and Theodore S. Chaconas, the grandson of Theodore H. Chaconas, who lived on Lot 822, adjacent and immediately to the west of Lot 869, from his birth in 1941 to 1957. The testimony of a third witness, Gus Chaconas, another son of Theodore H. Chaconas, was inconclusive.
[7] See also the testimony of Lois Meyers Vogel, daughter of Mr. and Mrs. Harry Meyers, admitting that the Chaconases were generally friendly people, with whom she personally was on friendly terms, and who frequently saw her as she crossed their yard.
[8] In Sachs, the court stated: "Where there is neither proof of an express license or permission from the landowner, nor of an express claim of right by the person using the way, the character of the use, whether adverse or permissive, is to be determined from the circumstances of the parties and the nature and character of the use." 121 Conn. at 66, 183 A. at 25.
[9] In fact, the only other testimony relative to a claim of right by the Meyers to cross the Chaconas' property was against appellees. Theodore S. Chaconas testified that during the late 1940's through the late 1950's no member of the Meyers family with whom he had contact ever asserted that they had a right to cross the Chaconas' land.
[10] The circuit court in Umhau quoted with approval Stewart v. Andrews, 239 Ill. 186, 87 N.E. 864 (1909), stating in part:
[A] user of the type here involved, being a mere neighborly act, with no intent on the part of ... [appellees] to claim adversely, and no intent on the part of the owner to surrender, could not ripen into an easement even though no permission had ever been asked.
76 U.S.App.D.C. at 396, 133 F.2d at 358.
[11] See also 2 THOMPSON ON PROPERTY, supra, § 335, at 143, and cases cited therein, reporting that "[t]he modern tendency is to restrict the right of one to acquire a prescriptive right-of-way whereby another, through a mere neighborly act, may be deprived of his property by its becoming vested in the one whom he favored."
[12] As stated by Justice McKenna in District of Columbia v. Robinson, 180 U.S. 92, 100, 21 S.Ct. 283, 286, 45 L.Ed. 440 (1901):
Under a different rule licenses would grow into grants of the fee and permissive occupations of land become conveyances of it. "It would shock that sense of right," Chief Justice Marshall said in Kirk v. Smith, 9 Wheat. [241] 286 [6 L.Ed. 81], "which must be felt equally by legislators and judges, if a possession which was permissive, and entirely consistent with the title of another, should silently bar that title."
See also LaRue v. Kosich, supra, 66 Ariz. at 303, 187 P.2d at 645, in which the court stated:
If any party who is allowed by silent permission to pass over the lands of another, nothing being said as to any right being claimed, after ... [the statutory period], without showing that he ever communicated such claim in any way to the owner, can thus gain title by prescription, it would be a blot upon the law.
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123 F.Supp. 506 (1954)
GENERAL MOTORS CORP.
v.
BENDIX AVIATION CORP.
Civ. No. 1348.
United States District Court, N. D. Indiana, South Bend Division.
June 28, 1954.
*507 John H. Bruninga, Philip B. Polster, St. Louis, Mo., for plaintiff.
Lawrence C. Kingsland, St. Louis, Mo., M. A. Hobbs, South Bend, Ind., Gordon W. Daisley, Washington, D. C., George Beamer, South Bend, Ind., for defendants.
SWYGERT, Chief Judge.
This suit was originally filed on December 15, 1951, in the United States District Court at St. Louis, and was transferred on February 20, 1952, to this court under the provisions of Title 28 United States Code, § 1404(a). It concerns questions arising out of patent interferences. These interferences involved claims contained in applications for patents, and in issued patents, the subject-matter of which has to do with the so-called "automatic choke" on an automobile carburetor.
The Board of Interference Examiners defined the subject-matter of Interference 82,841, here involved, in its decision dated August 21, 1951, as follows:
"This interference relates to a device for automatically controlling the richness of the mixture of fuel and air discharged by the carburetor of an internal combustion engine in response to temperature and vacuum conditions of the engine so as to eliminate the ordinary hand choke arrangement."
*508 The subject-matter of Interference 79,386, also here involved, was defined by the Board of Interference Examiners in its decision dated October 31, 1945, as follows:
"This interference relates to a device for automatically controlling the richness of the mixture discharged by the carburetor of an internal combustion engine in response to temperature and vacuum conditions of the engine so as to eliminate the ordinary hand choke."
A chronology of some of the more important events in the numerous proceedings leading to this suit is set forth in an appendix attached hereto. For convenience, the patent applications are given alphabetical, and the interferences numerical, designations.
IESTOPPEL
The Shaff application (designated A) was filed on March 13, 1930, as serial No. 435,394. The Jorgensen and Jorgensen joint application (designated B) was filed on January 8, 1932, as serial No. 585,510. Both applications A and B described control of both the air valve and the fuel valve of a carburetor.
On March 30, 1934, Interference 68,187 (designated I) was declared between claims presented in application B and with a number of other patent applications, including Swigert which had been assigned to General Motors, and Chandler which had been assigned to Bendix. On August 14, 1934 application A was assigned to Bendix and on September 24, 1935, Bendix moved in the interference proceeding to substitute claims presented in application A, for the Chandler application. The motion was granted. On December 31, 1936, the interference was dissolved by the Patent Office Examiner on grounds of unpatentability of counts. The Board of Appeals affirmed the decision on May 21, 1937.
On September 24, 1935, three more interferences were declared: 71,471 (designated II), 71,472 (designated III), and 71,473 (designated IV). Interference II involved claims stemming from applications A and B and the applications of four other parties. Interference III involved claims asserted in applications A and B and four other parties. Interference IV involved only claims asserted in applications A and B.
Interference II was dissolved on January 7, 1937, for unpatentability of counts. Interference III was dissolved on May 21, 1937, for unpatentability of counts. Interference IV was dissolved on October 13, 1936, on the ground that Shaff had no right to make the counts. The dissolution of the Interferences II, III, and IV was affirmed in each instance by the Board of Appeals.
On July 30, 1937, Clarence H. Jorgensen, as sole owner, agreed to assign application B to General Motors.
On August 23, 1939, Interferences 77,410 (designated V) was declared between applications A and B on a single count. On May 8, 1940, the Primary Examiner dissolved Interference V on ground that Jorgensens were estopped for failure to bring a motion for additional claims in the earlier Interferences I to IV. This decision was affirmed by the Board of Appeals on December 23, 1940.
On December 26, 1944, patent No. 2,365,910 issued upon the application A, to Shaff. On February 25, 1945, General Motors, as assignee of Jorgensens' application A, copied claims 11, 12, 14 to 33, inclusive, of this patent issued to Ernest H. Shaff. The Primary Examiner refused to set up another interference on the ground of estoppel. The Examiner in his decision stated:
"Applicants have already been in five interferences involving Shaff's application. * * * No reason is seen for setting up still another interference, since applicants had ample opportunity to propose an interference with Shaff on the subject matter of the claims now copied from Shaff's patent."
Jorgensens appealed the decision to the Board of Appeals, which affirmed the Examiner. On reconsideration, however, *509 the Board modified its decision and held that there was no estoppel except as to one of Jorgensens' claims which corresponded to Shaff's patent claim 11. The Board's reason for holding an estoppel as to this claim was that it formed an issue in Interference V and that the Board of Appeals held in that interference that Jorgensens were estopped to make this claim because of their failure to assert the claim in one of the previous Interferences I to IV. Jorgensen later brought a proceeding under R.S. § 4915, 35 U.S.C. § 63,[1] to review, among other things, the correctness of this estoppel rejection. The Court held that the ruling of the Board of Appeals was proper. Jorgensen v. Kingsland, D.C.1949, 83 F.Supp. 319. The Board's reason for modifying its ruling as to the other claims proposed by Jorgensens as counts of the interference was that Jorgensens had actually presented, in Interference I, a claim designated Proposed Count "A" in that interference substantially similar to Shaff patent claim 19 and therefore should not be estopped. As a result of this modified ruling Interference VI was declared on May 2, 1947, and claims 12, 14 to 28, 31 to 33 of the patent issued to Shaff upon application A became Counts 1 to 19 of Interference VI.
On August 21, 1951, the Board of Interference Examiners in Interference VI held Jorgensens estopped to assert priority over Shaff. The Board disagreed with the Board of Appeals' ex parte decision, and held that the Jorgensens' claim presented in Interference I, (designated as proposed count "A" in that interference) was substantially different than the closest corresponding count in Interference VI (Count 7) and therefore Jorgensens should not be relieved of an estoppel. Moreover, the Board of Interference Examiners held that Ernest H. Shaff was, in fact, the prior inventor of the subject-matter of the claims in dispute.
Within six months after the Board of Interference Examiners' decision, the complaint in this action was brought under Section 4915 of the Revised Statutes, 35 U.S.C. § 63, (as it existed at that time) for a decree that Jorgensens are the prior inventors of the subject-matter of the dispute of Interference VI and authorizing the Commissioner of Patents to issue to the plaintiff a patent for the subject-matter of Jorgensens' application B.
The Jorgensen sole application serial No. 15,201 (designated C) was filed on April 8, 1935, and was assigned to plaintiff on April 9, 1935. It was directed solely to an automatic control of the fuel valve of a carburetor. It was not involved in Interferences II to V. On June 9, 1938, Shaff filed an application, serial number 212,738 (designated A2) as a continuation of application A, which contained claims also solely related to the automatic control of the fuel valve. On December 17, 1940, application C issued as patent No. 2,225,261 to Jorgensen. Shaff immediately copied a number of claims of this patent into application A2. Thereupon, on May 27, 1941, Interference 79,386 (designated VII) was declared between application A2 and Jorgensen patent No. 2,225,261, issued upon application C. On October 31, 1945, the Board of Interference Examiners in this interference awarded priority to Shaff. The question of estoppel was not considered. This decision was affirmed by the Court of Custom and Patent Appeals on April 3, 1951, Jorgensen v. Shaff, 189 F.2d 264, 38 C.C.P.A., Patents, 1061, and on May 27, 1952, application A2 issued as patent No. 2,598,450 to Shaff.
In the instant action defendants filed an answer to the complaint, and also filed a counter-claim under Section 4918 of the Revised Statutes, 35 U.S.C. § 66,[2] alleging that Jorgensen patent No. 2,225,261 (C) and the Shaff patent No. 2,598,450 (A2) are interfering patents, and praying that the Jorgensen patent (C) be held void as to claims 1, 4, 5, 6, 10, 12 and 15, all of which were involved in Interference VII.
*510 The Jorgensens joint application B was involved in Interference 78,345 with an application of Otto Henning, assigned to Carter Carburetor Corporation, and in Interference 80,733, with an application of George E. Ericson, similarly assigned to Carter Carburetor. The decisions of the Board of Interference Examiners in those interferences were adverse to plaintiff. Thereupon plaintiff brought actions under R.S. § 4915 in the District Court of the United States for the Eastern District of Missouri. In those proceedings Judge Duncan entered judgments in favor of plaintiff in both actions for the reason that party Jorgensens was held to be the prior inventor, Jorgensen v. Ericson, D.C., 81 F.Supp. 614, 619 and Jorgensen v. Henning, D.C., 81 F.Supp. 621, which decisions were affirmed by the Court of Appeals for the Eighth Circuit, Ericson v. Jorgensen, 180 F.2d 180, Henning v. Jorgensen, 8 Cir., 180 F.2d 353, certiorari denied 340 U.S. 813, 71 S.Ct. 40, 95 L.Ed. 597.
The instant case proceeded to trial on testimony in open court, on certain of the depositions and exhibits offered before the patent office in Interferences VI and VII and other evidence. Plaintiff introduced the oral testimony of Clarence H. Jorgensen, Clyde R. Paton, Thomas B. Chase and Walter Edwin Lay. Plaintiff also offered the depositions of Howard N. Kyser and of Gilbert D. Williams in Interference VI, and the depositions of L. V. Morris Gray, Kenneth H. Milne, Mrs. Leonore F. Jorgensen and Fred E. Aseltine in Interferences VI and VII. The testimony of Clyde R. Paton and of Gilbert D. Williams had not been offered in Interference VII, but their depositions were offered in Interference VI. Clarence H. Jorgensen, Clyde R. Paton, Howard N. Kyser and Gilbert D. Williams testified in court before the District Court in Jorgensen v. Ericson. Thomas B. Chase did not testify in Interferences VI and VII, nor before the District Court in St. Louis. Walter Edwin Lay did not testify in Interferences VI and VII.
Defendants contend that during the motion periods of Interferences I to V plaintiff, along with the Jorgensens, had access to the Shaff application A and thus had constructive knowledge that claims corresponding to counts 1, 3 and 4 of Interference VI had been indicated by the Primary Examiner on August 23, 1935, to be allowable to Shaff. Their contention is that during these previous interferences neither plaintiff nor its assignor, the Jorgensens, moved under Rule 109 of the Patent Office[3] to bring into the interferences the allowable Shaff claims or any other claims relating to the subject matter which later formed the counts in Interference VI.
Defendants further contend that beginning on August 6, 1941, the day on which preliminary statements in Interference VII were approved, plaintiff and Jorgensen had access to Shaff application A as the parent of continuation application A2. That during the motion period of Interference VII the aforementioned claims which later became counts 1, 3 and 4 of Interference VI stood allowed in application A and that during that period application A also showed that claims corresponding to counts 6, 7, 8, 9 and 10 of Interference VI had been indicated by the Primary Examiner on August 18, 1941 to be allowable; that plaintiff and Jorgensen had knowledge during the motion period of Interference VII that Shaff was claiming to be the inventor of the subject matter of these claims and should have requested during this period an interference between applications A and B.
With reference to Interference VII and the patents issued upon application A2 and C, defendants say plaintiff is estopped to contest priority because plaintiff failed to request under Rule 109 an interference between applications A and C during the motion periods of Interferences I to V. During this time claims 1, 2 and 3 of the Shaff patent issued upon application A2 stood allowed in application A. These claims were directed to the fuel valve control subject-matter *511 involved in Interference VII. Therefore, defendants assert, since plaintiff had constructive knowledge of at least three claims covering substantially the same subject-matter as counts in Interference VII during Interferences I to V, and since no interference was requested by plaintiff during these interferences on the subject-matter of these claims, it is estopped to deny presumptive priority to Shaff with respect to the counts in question.
In short, defendants claim that failure of the plaintiff and Jorgensens to move under Rule 109 to amend applications B and C during Interferences I to V to include claims which later became counts in Interferences VI and VII estops plaintiff from now asserting priority of invention of the subject-matter of the claims which were in dispute in these last two interferences.
The aforementioned Rule 109 provided in part:
"109. An applicant involved in an interference may, * * * on motion duly made as provided by rule 153, file an amendment to his application containing any claims which in his opinion should be made the basis of interference between himself and any of the other parties. * * *
"Any party to an interference may bring a motion to put in interference any claims already in his application or patent which should be made the basis of interference between himself and any of the other parties. Any party to an interference may bring a motion * * * to include an application or a patent owned by him, as to claims which should be made the basis of interference between himself and any of the other parties. * * *"
In its decision in Interference VI the Board of Interference Examiners explained the doctrine of estoppel under Rule 109 as follows:
"The proposition involved is an estoppel for failure to propose under the provisions of (old) Rule 109 a count defining certain patentable subject matter disclosed by the senior party. There is a duty upon the junior party, arising out of the provision of (old) Rule 116 (as amended effective August 21, 1934), to bring into issue any subject matter disclosed in common with the senior party by presenting claims during the motion period, subject to determination of patentability thereof if not already patented, upon which he desires to contest priority, and the junior party will be held to be estopped if he attempts to present claims to such matter for a second interference with such senior party. In re Austin 1930, C.D. 505, 509-10. The purpose of the rule is (insofar as the parties interferant are concerned) to protect the party who is the prima facie first inventor of the subject matter by reason of his first constructive reduction to practice from the expense and trouble of multiple interferences and from the possible unequal detrimental effects of the ravages of time upon his witnesses. The rule and the condition under which it applies have been thoroughly considered and fully discussed in Avery v. Chase, 1939 [101 F.2d 205] 26 C.C.P.A. [Patents] 823; and in opinions in cases referred to in that opinion. It is clear that the rule applies whether other parties were present in the interference or not, in the present case there were prior interferences of both kinds. The rule applies even if the prior interference had been dissolved on the ground that the count was unpatentable. In re Brashares, 1935 [74 F. 2d 751] 22 C.C.P.A. [Patents] 873. The rule applies even if no claim to the subject matter stood in the senior party's application file during the pendency of the prior interference."
Three forms of estoppel have apparently been considered by the courts in *512 patent interferences. One is estoppel by judgment, or res judicata; another is estoppel in pais, or equitable estoppel; and the third is a doctrine of estoppel for failure to comply with Rule 109 as that rule has been interpreted.
In Blackford v. Wilder, 1907, 28 App. D.C. 535 the District of Columbia Appellate Court stated that the principles of res judicata were appropriate to patent interference proceedings and held that where an interference had terminated in a decision of priority, the defeated party could not prosecute broader claims covering the same subject-matter in a second interference. From that start there has developed in the decisions the other doctrines of estoppel, first, one of an equitable nature and then one more broadly, upon the theory that an applicant's mere failure to move under Rule 109 creates an estoppel regardless of whether there is a basis for the application of res judicata. This latter doctrine of procedural estoppel is the rationale of the decision in Avery v. Chase, 1939, 101 F.2d 205, 212, 26 C.C. P.A., Patents, 823, which the Board of Interference Examiners followed in Interference VI.
In the Avery case the Court of Custom and Patent Appeals reviewed its prior decisions and concluded that Rule 109, as well as the other Rules of Practice, must be binding upon the Patent Office as well as the applicants in order to avoid an "intolerable situation of confusion". The Court held the applicant estopped on the ground of failure to proceed under Rule 109 within the proper time. It is obvious that the estoppel there applied was not based on res judicata because the issue in dispute could not have been settled in the first interference. The Court noted that the Court of Appeals for the District of Columbia in International Cellucotton v. Coe, 1936, 66 App.D.C. 248, 85 F.2d 869, had expressly stated that only res judicata principles are applicable under Rule 109, but indicated that it felt constrained to take a different view.
In the Cellucotton case, the Court of Appeals stated that an estoppel arising out of a failure to move under Rule 109 could be sanctioned only where the doctrine of res judicata was applicable and held res judicata inapplicable when claims sought as counts of the second interference could not have been made issues of the first interference, as the subject matter of the disputed claims had not been disclosed in the first interference. This principle was reasserted by the Court of Appeals for the District of Columbia in American Cyanamid Co. v. Coe, 1939, 70 App.D.C. 330, 106 F.2d 851.
A vigorous dissent by Judge Bland in the Avery case points out that Rule 109 is only permissive in its wording, and that the Patent Office has made no rule which states that a party will be denied claims if he does not take advantage of the invitation extended by Rule 109. In a later decision, Judge Galston in News Projection Corporation v. Western Union Telegraph Co., D.C.S.D.N.Y.1941, 38 F.Supp. 854, 857, agreed with Judge Bland that Rule 109 was not mandatory and that "there is no statutory bar created in [its] terms."
I am of the opinion that the sounder view is that expressed in the Cellucotton and News Projection cases, which hold for a more constrictive estoppel doctrine than that pronounced in the Avery case. As Judge Bland in the latter case points out in his dissent, the mandatory estoppel doctrine of Rule 109 is merely a creature of administrative authority. It is not contained in any of the rules promulgated by the Patent Office.
The principles of res judicata cannot be extended so as to produce an estoppel in this cause. In Interferences I to V no decision on the merits was rendered; instead all of these interferences were terminated by interlocutory motions which were not appealable to any court. See Gyro-Process Co. v. Coe, 1939, 70 App.D.C. 390, 107 F.2d 195. A dissolution of an interference is not a final *513 judgment of priority; therefore res judicata is inapplicable. Parker v. Craft, 1919, 49 App.D.C. 88, 258 F. 988.
A different problem arises as to the application of the doctrine of estoppel based on res judicata with respect to Interference VII. Since that interference did terminate in a decision as to priority the question is presented whether plaintiff and Jorgensens were estopped in Interference VI from presenting claims which, though not counts in Interference VII, were nevertheless disclosed in the applications to which they had access during that interference and which were later incorporated as counts in Interference VI.
As stated earlier, defendants urge that since Jorgensens, before and during the motion period in VII knew that Shaff's claims corresponding to counts 1, 3 and 4 of Interference VI stood allowed; and claims corresponding to counts 6, 7, 8, 9 and 10 of that interference had been indicated by the Primary Examiner to be allowable, Jorgensens should be estopped in Interference VI from asserting these claims.
One of the essential prerequisite requirements for res judicata application was noted in the leading case of Blackford v. Wilder, supra, in the following language:
"Applying the well-settled principle of estoppel by judgment, before stated, it follows inevitably that the final decision in the first interference is conclusive, unless it can be made to appear that the question upon which the determination of the second case rests is one that neither was, nor could have been, presented and determined in the first case."
The Cellucotton and Cyanamid decisions also emphasized that if the claims in question could not have been made part of the first interference by motion that res judicata is not applicable. In order to determine whether the claims and counts here in question could have been raised in Interference VII, Rule 94 of the Patent Office[4] rules should be considered. Rule 94 states that:
"Interferences will be declared between applications by different parties for patent or for reissue when such applications contain claims for substantially the same invention which are allowable in the application of each party, and interferences will also be declared between applications for patent * * * of different parties, when such applications and patents contain claims for substantially the same invention which are allowable in all of the applications involved * * *." (Emphasis supplied.)
This Rule clearly indicates that an interference is properly declared only when two parties claim the same patentable subject-matter.
The fact that Shaff may have disclosed in the parent application A more than he claimed in application A2 would not have been grounds for the Interference Examiner to have added, as counts of Interference VII, Jorgensens' disclosed, but not claimed, invention even if Jorgensen had made such a motion to amend. Instead the Examiner would have had to declare a second interference for the claims involving the unclaimed but disclosed subject-matter of Shaff.
The Patent Office issued patent No. 15,201 to Jorgensen on claims arising from application C. The subject-matter of this application was involved in Interference VII, for the interference was declared when Shaff copied the claims contained in this patent. Interference VI, however, was declared when Jorgensens copied the claims contained in patent No. 2,365,910 issued to Shaff on basis of claims in application A. This court must accept the view that the Patent Office issued two different patents to two different parties on two different applications on the basis that it thought that two different inventions were involved. That Shaff considered two distinct inventions were involved and that only one invention was claimed in application *514 A2 is indicated by a letter written by his attorney to the Patent Office on June 17, 1938. Concerning application A2 the letter stated:
"The above entitled application was filed for the purpose of avoiding any possibility of double patenting as between applicant's co-pending applications Serial Nos. 435,394 filed March 13, 1930, and 750,758 filed October 31, 1934. Both of said applications contain claims directed to the control of fuel flow by suction control and/or temperature, and the line of division between the claims of the respective applications is difficult to establish and maintain. The present application therefore embraces all of the claims of both of the previously filed applications which relate to fuel control, and it embraces that part of the disclosure of the previously filed application which supports fuel control claims."
It is apparent that Jorgensens were under no duty to bring forward the claims later presented in Interference VI since they could not properly have been made the basis of an interference in Interference VII, the counts of which dealt only with control of a fuel valve.
Claims 23 and 24 of Shaff patent 2,365,910, corresponding to counts 11 and 12 of Interference VI, were copied by Shaff from claims 1 and 7 of a Sisson patent No. 2,309,419 dated January 26, 1943, within one year of the issue date of said patent, and an interference was declared between Shaff and Sisson. Priority of invention as to the subject-matter of these two claims was awarded to Shaff. Corresponding claims were first presented in application B subsequent to issuance of Shaff patent 2,365,910 on December 26, 1944, nearly two years after the date of issue of Sisson patent 2,309,419. The Board of Interference Examiners held in VI that the party Jorgensens was barred by the delay in presenting the claims from contesting priority on that issue under the provisions of 35 U.S.C. § 51 (1951).[5] The Board held that the defense is available to a party who, in a seasonably instituted interference, wins an award of priority over the first patentee as to such claims, De Ferranti v. Harmatta, 1921, 50 App.D.C. 393, 273 Fed. 357, and that the bar runs from the date of the first patent granted having the claims in it. Ibid; Jorgensen v. Kingsland, D.C.1949, 83 F.Supp. 319.
Plaintiff relies on the limitation enunciated in Jenks v. Knight, 1937, 90 F.2d 654, 657-660, 24 C.C.P.A., Patents, 1227, to avert the application of the estoppel bar under the provisions of 35 U.S.C. § 51. There the court stated:
"It will be observed that there an exception was made to the two-year rule [now one year]. This was because of the fact that during all the time Chapman's application was pending, Beede was claiming the invention, that the issuance of the pattent to Chapman was clearly an inadvertence, and that there was no delay on the part of Beede in claiming the invention since he had been claiming it from the beginning. * * *
"`A comparison of claims 1-5 of the Knight patent with the counts in issue shows very clearly that the two sets of claims are drawn to the same subject matter and invention. While the counts in issue are worded in somewhat broader terms than the claims of Knight it is evident that both the Jenks and Knight Pattents claim substantially the same invention. * * *'
"* * * While the language of the involved counts and that of the canceled and allowed claims differ somewhat, we are not convinced that the tribunals of the Patent Office were in error in holding that all of said claims were substantially for the same invention. It seems to us that the difference between them is more in the form of expression than in the inventive subject-matter covered."
Similarly, see Cryns v. Musher, 1947, 161 F.2d 217, 34 C.C.P.A., Patents 963, and *515 Thompson v. Hamilton, 1946, 152 F.2d 994, 997, 33 C.C.P.A., Patents, 732.
The Sisson patent No. 2,309,419 was issued on the subject-matter disclosed in, and claims contained in, application serial No. 567,817, filed October 9, 1931. Claims from the Sisson application were involved in Interference I with Jorgensens' application B and later Shaff application A. Jorgensens' application B and Sisson's application, among others, were also in Interferences 68,188, 68,189, 68,190 and 68,191. Sisson's application, Shaff application A and Jorgensens' application B were also involved in Interferences II and III.
A comparison of the counts of the aforementioned interferences with the claims in Sisson's patent and claims in Jorgensens' application B manifests that both these parties were making claims relating "substantially to the same invention." It follows that no statutory bar can be applied against Jorgensens stemming from the claims copied by Shaff from the Sisson patent and recopied by Jorgensens into its application, since Jorgensens had already at an earlier date, prior to the date when the Sisson patent issued, made substantially similar claims in its application B.
II PRIORITY
As early as 1912 Peter Jorgensen and his son, Clarence H. Jorgensen began experimenting with and constructing priming devices for automobile carburetors. In 1921, they were issued a patent for a gasoline injector to facilitate starting, and in 1925, another patent for a semiautomatic choke. In 1927, the Jorgensens developed for use on a Buick automobile owned by Clarence H. Jorgensen an automatic choke device. This device was subsequently lost. It had some of the features and was the forerunner of the structure disclosed in Jorgensens' patent application filed January 8, 1932.
The first time this device, plaintiff's Exhibit 13, was used was late in 1928 on a Studebaker automobile Jorgensen had purchased direct from the factory at a discount in order to try out his automatic choke. At that time a Schebler carburetor was on the car and the automatic choke device controlled both the fuel and air valves. Thereafter, Studebaker started using Stromberg carburetors on their 1929 car models and in the latter part of that year Jorgensen obtained from Howard M. Kyser, Service Engineer for Studebaker, a Stromberg carburetor, which Jorgensen installed on his car and to which he attached the automatic choke device. The device controlled only the air valve on this carburetor. Jorgensen continued to use the device on the car in connection with the Stromberg carburetor until sometime in 1930, when he turned the car over to his employer, the Dole Valve Company.
The principle questions on priority are: (1) Was plaintiff's Exhibit 13, which Jorgensen claims to be the original device, used on the Studebaker car during 1928-30, that is, before the filing date of Shaff's application, March 13, 1930, on which date the defendants rest their case as to priority; and (2) if this device was so used, did it operate with sufficient success to constitute a reduction to practice.
It is not deemed necessary to recount a lengthy résumé of the evidence presented by plaintiff relating to conception and prior reduction to practice. Most of the evidence presented by the Jorgensens relating to the alleged prior reduction to practice is fully set out in the Court of Customs and Patent Appeals decision in Jorgensen v. Shaff, 1951, 189 F.2d 264, 38 C.C.P.A., Patents, 1061, and in the Board of Interference Examiners' decision rendered in Interference VII on October 31, 1945, and in Judge Duncan's opinion in Jorgensen v. Ericson, D.C.Mo. 1949, 81 F.Supp. 614, and the appeal therefrom in Ericson v. Jorgensen, 8 Cir., 1950, 180 F.2d 180, and by the decision of the Board of Interference Examiners in Interference VI. Moreover, specific findings are being entered herein which are supplementary to those stated in this opinion.
Although actions under R.S. § 4915 are de novo proceedings, the decision of the Patent Office with respect to priority of inventions in Interference VI *516 "must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction", and that such a decision may not be set aside unless the evidence produces "a clear conviction that the patent office made a mistake". Morgan v. Daniels, 153 U.S. 120, 125, 129, 14 S.Ct. 772, 38 L.Ed. 657.
The rule of the Morgan decision commands that Jorgensens carry the burden of proof of "thorough conviction" that they conceived and reduced to practice the device which is the subject matter of the interferences and of this suit. Globe Union, Inc. v. Chicago Telephone Supply Co., 7 Cir., 1939, 103 F.2d 722.
The rule of comity is applicable to the decisions of the District Court and the Court of Appeals in Jorgensen v. Ericson, supra. Apparently there is no dispute that there the actions grew out of patent office interferences involving claims to carburetor controlling devices wherein the same device as that here in evidence was relied upon by plaintiff as a reduction to practice of the interfering claims. The Supreme Court has stated that "comity persuades; but it does not command. It declares, not how a case shall be decided, but how it may with propriety be decided." Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 485, 488, 20 S.Ct. 708, 710, 44 L.Ed. 856. The Supreme Court continued 177 U.S. at pages 488-489, 20 S.Ct. at page 710:
"It is only in cases where, in his own mind, there may be a doubt as to the soundness of his views that comity comes in play and suggests a uniformity of ruling to avoid confusion, until a higher court has settled the law. It demands of no one that he shall abdicate his individual judgment, but only that deference shall be paid to the judgments of other co-ordinate tribunals."
The rule of comity urges that if at the close of the proceedings the court is in doubt, it should follow the conclusions reached by another tribunal on the same facts.
In order to conclude that the Jorgensens did not develop and test the automatic choke device which is plaintiff's Exhibit 13, or one substantially identical, I would have to decide either that Jorgensen and Kyser, Paton, Williams and Chase, who corroborated Jorgensen on many material points, testified falsely or that their recollections cannot be trusted after a lapse of fifteen to twenty years. Neither determination is justified upon considering the credibility of the witnesses and after weighing their testimony as a whole. While it is true that only Jorgensen testified positively and without qualification that plaintiff's Exhibit 13 was the original device constructed by him and his father, the testimony of these other witnesses is thoroughly convincing that either this device or one substantially like it was in use during the period from late 1928 to 1930. Defendants concede that Kyser, Paton and Williams "must have seen something and that something must have had * * * in it a bellows and a thermostat;" however, they do not admit plaintiff's Exhibit 13 is the original device.
As their strongest point, defendants contend that the evidence does not carry a thorough conviction that there was sufficient testing and that there was not enough corroboration of Jorgensen's testimony relating to testing that was done, to show a reduction to practice of the Jorgensen device prior to March 13, 1930. It is true that the device was not tested under all weather conditions, or on all makes of carburetors but according to Jorgensen it was in use on the Studebaker car from late in 1928 to sometime in 1930. The above mentioned witnesses saw it on the car at various times and at some of these times the weather was cold and snow was on the ground. The general impression gained from this corroborating testimony is that at the times they were present when the car was started, the automatic choke device attached to the carburetor and manifold operated successfully. However, this testimony *517 is somewhat fragmentary, and if this were all the corroborative evidence to Jorgensen's testimony that the device operated successfully as an automatic choke throughout this period, the question before the court might be difficult to resolve. There is, however, other corroborative evidence which, when considered with the testimony of the witnesses covering the period 1928-1930, carries thorough conviction that there was a reduction to practice of the Jorgensen device prior to the date of Shaff's application. This other evidence relates to inter partes tests and demonstrations in 1943-1944 during Interference VII wherein a 1928 Studebaker car like Jorgensen purchased in October, 1928, was equipped with the same kind of Schebler carburetor and manifold and connected with plaintiff's Exhibit 13. In reference to these demonstrations the Board of Interference Examiners in its decision on October 31, 1945, said: "During the taking of testimony the control device was used in connection with a Schebler carburetor at recorded temperatures of from 6° to 50° F. with apparent satisfactory results."
While it is true that the law recognizes no such thing as a reduction to practice nunc pro tunc, Smith v. Warnock, 1921, 50 App.D.C. 326, 271 F. 556, these 1943-1944 tests do corroborate and supplement the evidence relating to a reduction to practice in 1928-1929. As before indicated, testimony of Jorgensen, corroborated in many particulars by Kyser, Paton, Williams and Chase, renders it clear and convincing that plaintiff's Exhibit 13 or one substantially like it was used on the Studebaker car during the 1928-1930 period. The 1943-1944 tests corroborate the testimony of these witnesses as to the quality of the tests made during the earlier period; that is, that the device operated with sufficient success to constitute a reduction to practice.
Finally, I am in substantial agreement with the conclusion reached by Judge Duncan in Jorgensen v. Ericson, D.C., 81 F.Supp. 614, 621, where he stated:
"Defendant has no evidence to disprove the evidence of the plaintiffs except that time must have dimmed the memory of the witnesses and that their testimony should not be believed, and that it falls short of being convincing in that degree required by the law.
"As heretofore stated, all of the witnesses were engaged in the automobile industry and interested in its development. They were men of experience in their field and their integrity is unquestioned except to the extent that their memories could not be expected to retain the facts so long a time. While the demonstration before the Patent Office hearing of itself may not be conclusive as to the success and reduction to practice of the device in 1928 or 1929, certainly it is strong and persuasive evidence of its effectiveness while it was being tested in 1928 and 1929. This evidence, connected with the other evidence as to its use, is convincing.
"Defendant contends that taking plaintiffs' evidence as true it still does not meet the requirements of the law. With this contention I cannot agree. A careful weighing of all the evidence which was presented to the Board of Interference Examiners and which has been submitted to this court carries that thorough conviction which is required by the law, that is, that plaintiffs conceived and reduced to practice their patent in 1928 and 1929 prior to the filing of defendant's application. As heretofore suggested, plaintiffs' reason for not having filed their application for a patent until 1932 seems to the court to be without merit. Plaintiffs having reduced their patent to practice laid it aside and did nothing further about it until after the filing of defendant's application. Were it not for the fact that under the law the plaintiffs once having reduced their patent to practicable application are not required *518 to be diligent in filing an application, I should not hesitate to hold that the plaintiffs were lacking in diligence in the filing of their application; but that seems to make no difference and the court bows to superior judicial authority."
The Court of Appeals approved of Judge Duncan's decision by stating in Ericson v. Jorgensen, 8 Cir., 180 F.2d 180, 183:
"We think the evidence that the Jorgensens made their automatic choke device and attached it to their Studebaker car with Stromberg carburetor and tested it out and found that it worked satisfactorily through the winter of 1929 and 1930 fulfills the requirement set forth in the opinion of this court in Larson v. Crowther, 26 F.2d 780, 785, and `carries thorough conviction' that they conceived their device and reduced it to practice at that time and prior to the application date of Ericson on November 6, 1931. * * *
"But consideration of all contentions made for appellants on the evidence has not persuaded that any facts or circumstances were shown sufficient to raise substantial doubts of the truth of the proof presented that Jorgensens did conceive and made the device they brought into court; that they attached it to a Stromberg carburetor on a Studebaker car sometime before Christmas 1929, and ran the car with it through the winter of 1929-1930. That during that time they demonstrated the device and its operation to witnesses who were especially qualified to and did understand and appraise it and that it worked successfully."
The defendants further urge that the installation of plaintiff's Exhibit 13 on the Schebler carburetor did not embody the invention defined in a number of the claims of the Jorgensen application B and which became some of the counts of Interference VI. In other words, defendants say that the combination of plaintiff's Exhibit 13 and a Schebler carburetor did not constitute a reduction to practice as respects any of the counts 2-5, 8, 9, and 13-19, because the evidence fails to show that the thermostat of the device "actually controlled or influenced the operation of the air valve of the Schebler carburetor."
The Board of Interference Examiners in Interference VI analyzed the mechanical aspects of this question in relation to the evidence and came to the conclusion that it was "not convinced that the showing made in respect to JX13 (plaintiff's Exhibit 13) with the Schebler carburetor meets the requirements of proof of reduction to practice."
If it were necessary to decide this question on this particular basis, I would have to say that I have no thorough conviction that such determination is wrong, despite plaintiff's evidence and arguments to the contrary. But defendants overlook two things: (1) the installation of plaintiff's Exhibit 13 on the Stromberg carburetor did embody the invention described in the above mentioned counts the only control on the carburetor was the air valve and (2) the application of the doctrine of equivalents.
In their respective original applications A and B both Shaff and Jorgensens considered the control, whether of an air valve or of a fuel valve, full equivalents. Jorgensen and his witnesses, Kyser, and Lay, the latter an expert on carburetors, testified that the principle of operation, whether the inventive device controls the air valve or the fuel valve, is the same. The witness Lay explained it as follows:
"Choking on automobiles is gotten to be a term which indicates some means for giving a very rich mixture for starting. Now we can get a richer mixture in two ways, either by reducing the air that is coming in, or by increasing the fuel flow."
Shaff testified to the same effect, albeit in metaphorical terms:
"Q. And the two were just two different ways of doing the same thing? A. That's right.
"Q. In other words, you could choke a man to death by either holding his *519 mouth shut or giving him a lot of gas and you suffocate him in either case, don't you? A. Yes."
Finally, in Smith v. Carter Carburetor, 3 Cir., 130 F.2d 555, 559 where the court was considering applications for patents for an invention similar to the one here involved, it was said:
"The claims of the patent are to be read in the light of the disclosure of the specifications, not to restrict the invention to the precise structure disclosed, but in order to grasp the principle of the invention so as to measure properly the range of equivalents. Flowers v. Magor Car Corp., 3 Cir., 65 F.2d 657, 658; 2 Walker § 261. * * * It would seem that Smith's structure, which utilized engine temperature and suction in controlling the air flow to the mixture chamber rather than the fuel flow, comes within the range of equivalents of the Ericson invention." [Emphasis added.]
Having determined that plaintiff is not estopped to prosecute the Jorgensens' application A and that it is entitled to priority over Shaff, the question of patentability of the invention arises. It has been said:
"Only if he [applicant] wins on priority may he proceed. In that event, the statute says, the court may proceed to `adjudge that such applicant is entitled, according to law, to receive a patent for his invention * * *.' So adjudging, it may authorize issuance of the patent. But judicial authorization of issuance implies judicial sanction of patentability and for this reason this Court has said, `It necessarily follows that no adjudication can be made in favor of the applicant, unless the alleged invention for which a patent is sought is a patentable invention.' Hill v. Wooster, 132 U.S. 693, 698, 10 S.Ct. 228, 230, 33 L.Ed. 502. The principle of the Hill case is that the court must decide whether claims show patentable inventions before authorizing the Commissioner to issue a patent." Sanford v. Kepner, 344 U.S. 13, 15, 73 S.Ct. 75, 76, 97 L.Ed. 12.
The Patent Office has already issued what must now be held to be two interfering Shaff patents to the Jorgensens' original application for an invention and also a patent to Jorgensen for that part of his invention with respect to the control of the fuel valve. These prior determinations by the Patent Office as to the patentability of the invention here involved and the absence of conflicting evidence are persuasive that the Jorgensens' joint application discloses an operative inventive device that is patentable.
IIIPUBLIC USE
The defendants contend that in the event the Court should conclude that the Jorgensens were the prior inventors of the subject-matter claimed in the counts of Interferences VI and VII by reason of reduction to practice during the 1928-1929 period, plaintiff is barred under R.S. § 4886, 35 U.S.C. § 31 (1951)[4] from obtaining valid claims to such subject-matter because the demonstrations to various members of the public of their automatic choke device, as a successfully completed invention, in 1928 and 1929 was a public use within the meaning of the statute, occurring more than two years before the filing date of Jorgensen applications.
The courts have interpreted R.S. § 4886 to be limited by the `experimental use' doctrine, that is, "if it can be made to appear that such installation and use was for experimental purposes only to perfect the device, or to demonstrate its utility the two-year period does not begin to run until the experimentation ceases, and the device is perfected or its utility so demonstrated. (Citing cases.)" Cline Electric Mfg. Co. v. Kohler, 7 Cir., 1928, 27 F.2d 638, 641; Elizabeth v. Pavement Co., 1877, 97 U.S. 126, 134-135, 24 L.Ed. 1000; W-R Co. v. Sova, 6 Cir., 1939, 106 F.2d 478, 481-482; Electric Storage Battery Co. v. Shimadzu, 1939, 307 U.S. 5, 20, 613, 616, 59 S.Ct. 675, 83 L.Ed. 1071.
*520 Defendants argue that the language of the courts stating that an experimental use of a devise is not a public use within the meaning of R.S. § 4886 is directed to experimentation or testing which is incident to a subsequent reduction to practice, and does not mean that after an invention has been completed by an actual reduction to practice based on such experimentation or testing, the inventor is free to continue use of the experimental device without running afoul of the public use provision of the statute.
Jorgensen testified that the original choke controlling mechanism was applied to a Shebler carburetor and used on Jorgensens' Studebaker car from before Christmas, 1928, to about Christmas, 1929. It was a handmade structure, and Jorgensen noted, "it was definitely an experimental device." Thereafter, this choke was used on a car equipped with a Stromberg carburetor. Jorgenson said that his desire was to interest other engineers and prospective buyers in the mechanism and for that purpose he demonstrated its operation to some of them, though during all this time, he asserted, "development work" was continuing on the choke. He stated that, "we were studying everything we could learn about the requirements and any features that might be desirable, so as to try and come up with a practical commercial choke," and this work continued until late in 1930. The Jorgensens' joint application was filed January 8, 1932.
Witness Paton testified with reference to the choke controlling mechanism of the Jorgensens that it was an "experimental development" and could not be considered a "commercial device."
The courts have observed that there is a great deal of difference between the requirements of a reduction to practice and the requirements made in the automobile industry for a commercially practical device, Thompson v. Murray, 1936, 84 F.2d 202, 23 C.C.P.A., Patents, 1281, and that experiments may continue in an attempt to further perfect the device beyond the requirements of a reduction to practice. Ibid. It was stated in Cleveland Trust Co. v. Schriber-Schroth Co., 6 Cir., 1937, 92 F.2d 330, 336:
"So long as use by the inventor can fairly be considered experimental and collateral to the development of the invention in its complete form, the bar of the statute does begin to run. Reo Motor Car Co. v. Gear Grinding Mach. Co., 6 Cir., 42 F.2d 965, 968. The emphasis that is laid upon Gulick's use of a car with experimental pistons for business and pleasure for a considerable period does not impress us. Road tests of many thousands of miles are considered necessary to determine the efficiency of an engine and its parts. That such transportation is not wasted does not of itself constitute a public use."
There is no inconsistency in the fact that even though Jorgensens successfully reduced to practice the automatic choke in question, they continued to experiment with it in the hope of "demonstrating its utility." Therefore, it is concluded that the plaintiff is not barred because of any public use of the invention within the meaning of R.S. § 4886.
It is also concluded by reason of the determination reached in the foregoing paragraphs that the Commissioner of Patents should be authorized to issue a patent for the subject-matter of the claims, corresponding to the counts in Interference VI of Jorgensens' application 585,510.
IV R.S. § 4915 and R.S. § 4918
In plaintiff's supplement to its complaint filed July 3, 1953, a prayer is made for a decree adjudging that Shaff patent 2,365,910 is void, inoperative and invalid as to claims 12, 14 through 28, 31, 32 and 33, because party Jorgensens was the first inventor of the subject-matter and because neither the Shaff application A, nor the patent issued thereon, disclosed the subject-matter of said claim. In a later amendment filed on January 22, 1953, plaintiff alleged that Shaff patent 2,365,910 is void, particularly as to claims 11, 12, 14 and 21, inclusive, 31, 32 and 33 because of the subject-matter of said patent was broadened by defendants as against adverse rights acquired by plaintiff.
*521 Defendants oppose the relief requested by plaintiff for the reason inter alia, that plaintiff is not entitled to inject into this R.S. § 4915 proceeding a collateral attack on the validity of defendant's patent. It should be noted that this particular issue involves only that part of the present action which is represented by the complaint, the R.S. § 4915 phase stemming from Interference VI.
The relief provided for in R.S. § 4915 is as follows:
"* * * and the court * * may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, * * * shall authorize the Commissioner to issue such patent on the applicant filing in the Patent-Office a copy of the adjudication, and otherwise complying with the requirements of law."
The Supreme Court, in the recent case of Sanford v. Kepner, supra, noted with respect to this aspect of a R.S. § 4915 proceeding:
"The principle of the Hill case is that the court must decide whether claims show patentable inventions before authorizing the Commissioner to issue a patent. No part of its holding or wording nor of that in Hoover Co. v. Coe, 325 U.S. 79, 65 S.Ct. 955, 89 L.Ed. 1488, requires us to say R.S. § 4915 compels a district court to adjudicate patentability * * * of one whose claim is found to be groundless." [344 U.S. 13, 73 S.Ct. 76.]
R.S. § 4915 permits a court, if an applicant prevails on the priority issue, to authorize the Patent Office to grant a patent to the successful applicant. It does not permit a plaintiff to use an R.S. § 4915 action to invalidate or revoke a patent granted at a prior time to the defendants by the Patent Office. See Smith v. Carter Carburetor Corporation, 3 Cir., 1942, 130 F.2d 555, 560. The Court has concluded in Interference VI that party Jorgensens was the first inventor. Though a ruling concerning the validity of Shaff patent 2,365,910(A) might be desirable as dispositive of a litigated issue, the Court cannot properly in this action enter a decree specifically declaring that patent invalid.
There can be no doubt that the Court has the authority under R.S. § 4918, 35 U.S.C. § 66 (1951) to declare "either or both" Shaff patent 2,598,450 (A2) and Jorgensen patent 2,225,261(C) `void in whole or in part, upon any ground, or inoperative, or invalid * * * according to the interest of the parties in the patent or the invention patented", since these are interfering patents to the same invention. On the ground of priority of invention, the Court has determined that Jorgensen was the first inventor of the common subject matter of these patents. Accordingly, the Shaff patent 2,598,450 (A2) and the pertinent claims therein may, and should under the statutory provisions of R.S. § 4918, be declared invalid.
Plaintiff has repeatedly demonstrated that the control of a fuel valve and the control of an air valve of a carburetor by the temperature and suction responsive device here in issue are equivalent means, that one performs the function of enriching the mixture in substantially the same manner as the other. Furthermore, the Jorgensen joint application and the claims presented in it are broad enough to encompass both of these means. Therefore the question arises: Why should there be two patents covering the same invention?
During the argument plaintiff's counsel admitted this overlapping and not only argued that both Shaff patents should be declared invalid because of lack of priority, inoperativeness and other reasons, but indicated that the Jorgensen patent issued upon application C should be declared invalid because of overlapping. R.S. § 4918 permits the court to declare either or both interfering patents void or invalid. It would seem that this is a situation, which requires both the Shaff patent issued upon application A2 and the Jorgensen patent to be declared invalid and void. This is the determination of the Court.
*522 APPENDIX A
JORGENSENS
DATE SHAFF APPLICATION INTERFERENCES APPLICATION
Mar. 13, 1930 A filed
Jan. 8, 1932 B filed
Mar. 30, 1934 Intf. I declared, ininvolving
B (and
others)
Aug. 14, 1934 A assigned to Bendix
Products Corp.
Aug. 23, 1935 Claims corr. to
counts 1, 3 & 4 of
Intf. VI allowed.
Claims corr. to original
claims 1, 2 & 3
Apr. 8, 1935 of A2 allowed.
Apr. 9, 1935 C filed
C assigned to Gen.
Sept. 24, 1935 Motors Corp.
A added to Intf. I.
Intfs. II, III, IV declared,
each involving
A (and other
applications).
Oct. 13, 1936 Examiner's decision
in Intf. IV dissolving
intf. on ground
Shaff had no right
to make the counts.
Dec. 31, 1936 Examiner's decision
in Intf. I dissolving
intf. on ground of
unpatentability of
counts.
Jan. 7, 1937 Examiner's decision
in Intf. II dissolving
intf. on ground
of unpatentability
of counts.
*523
JORGENSENS
DATE SHAFF APPLICATION INTERFERENCES APPLICATION
May 21, 1937 Examiner's decision
in Intf. III dissolving
intf. on ground
of unpatentability
of count.
July 30, 1937 Agreement to assign
B to Gen. Motors
Corp.
June 9, 1938 A2 filed as a cont.
of A.
Apr. 23, 1939 Intf. V declared between
claims in A
and B.
May 8, 1940 Examiner's decision
in Intf. V dissolving
intf. on ground
Jorgensens were estopped.
Dec. 17, 1940 C issued as patent
No. 2,225,261
May 27, 1941 Intf. VII declared
between claims in
A2 and C1
Mar. 24, 1942 Examiner's decision
in Intf. VII denying
Jorgensen's motion
to dissolve.
Dec. 26, 1944 A issued as patent
No. 2,365,910
Decision of Bd. of
Intf. Ex. in Intf.
VII awarding priority
Oct. 31, 1945 to Shaff.
*524
JORGENSENS
DATE SHAFF APPLICATION INTERFERENCES APPLICATION
May 2, 1947 Intf. VI declared
between claims in
A and B
June 11, 1947 B assigned to General
Motors Corp.
July 19, 1948 Decision of Commissioner
deferring
consideration of estoppel
against Jorgensens
to final
hearing in Intf. VI.
Apr. 3, 1951 Decision of Court
of Customs and Patent
Appeals in Intf.
VII affirming Bd. of
Intf. Ex.
Aug. 21, 1951 Decision of Board
of Intf. Ex. in Intf.
VI holding Jorgensens
estopped to
contest priority and
awarding priority
to Shaff.
May 27, 1952 A2 issued as Patent
No. 2,598,450
NOTES
[1] Now 35 U.S.C. §§ 145, 146.
[2] Now 35 U.S.C. § 291.
[3] Now Patent Office Practice Rules, rule 233, 35 U.S.C.A.Appendix.
[4] Now Patent Office Practice Rules, rule 201, 35 U.S.C.A.Appendix.
[5] Now 35 U.S.C. §§ 132, 135.
[4] Now 35 U.S.C. §§ 101, 102.
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596 S.W.2d 875 (1980)
Thomas A. BAREFOOT aka Darren Callier, Appellant,
v.
The STATE of Texas, Appellee.
No. 63715.
Court of Criminal Appeals of Texas, En Banc.
March 12, 1980.
Rehearing Denied April 30, 1980.
*878 Stephen E. Blythe, Gerald M. Brown, Temple, for appellant.
Arthur C. Eads, Dist. Atty., Ralph Petty, Jr., James T. Russell and Steven C. Copenhaver, Asst. Dist. Attys., Belton, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
DALLY, Judge.
This is an appeal from a conviction for capital murder. The punishment is death.
Appellant contends that the trial court erred by failing to instruct the jury at the guilt-innocence stage of the trial on the law of circumstantial evidence, denying his motion for change of venue, overruling his challenges for cause of three prospective jurors, refusing his request for additional peremptory challenges, admitting evidence of extraneous offenses, failing to define "probability" in the charge at the punishment stage, and overruling his objections to the testimony of two witnesses as to the probability he would commit acts of violence in the future. Appellant also contends that Art. 37.071, V.A.C.C.P., is unconstitutionally vague.
Appellant was convicted for the murder of Harker Heights police officer Carl Levin. The appellant fatally shot Levin after the officer stopped him for questioning in an arson investigation. Although appellant does not contest the sufficiency of the evidence, a detailed review of the testimony is required in order to discuss his contention that the circumstantial evidence charge should have been submitted to the jury.
Appellant and four other persons were living in a trailer in Killeen during the summer of 1978. One of the appellant's roommates, Donnie Ray Tiller, testified that appellant had asked him for a gun and stated that he intended to kill a Harker Heights policeman who had allegedly mistreated him during an arrest for public intoxication. Appellant also told Tiller of his plans to commit various robberies in Harker Heights.
On August 6, 1978, appellant told Tiller that he was going to commit a robbery the next morning at the Oasis Club in Harker Heights after creating a diversion by bombing *879 or setting fire to a building. Appellant stated to Tiller that he would kill anybody who recognized him as the robber. Appellant was wearing a white T-shirt and blue jeans at the time of this conversation.
Another roommate, Robert Roberson, testified that appellant awakened him at approximately 4:30 a. m. on October 7 and asked him for a ride to Harker Heights. Appellant was wearing a white T-shirt and blue jeans, and was armed with a .25 caliber automatic pistol and a home-made bomb. On the way to Harker Heights, appellant told Roberson he was going to blow up the Silver Spur, a night club. After first stopping at a convenience store where appellant filled an empty plastic milk jug with gasoline, Roberson dropped appellant off near the Silver Spur at about 5:00 a. m. and returned to the trailer.
John Edwards, a soldier at Fort Hood, drove past the Silver Spur at 5:15 a. m. He saw flames coming from the roof and a man he identified as appellant standing in the parking lot. As Edwards watched, appellant began to run along Highway 190. Edwards drove to the police station, which was nearby, to report the fire and then returned to the Silver Spur. On his way back to the fire, Edwards saw appellant near the intersection of Highway 190 and Amy Lane.
Back at the fire, Edwards saw a fireman remove a melted plastic jug from the roof of the building. He then told Officer Levin what he had seen. Levin, who was in uniform and driving a marked patrol car, left the scene of the fire and drove toward Amy Lane.
Michael Thrash, another Fort Hood soldier, lived on Amy Lane. He was walking to work at 5:35 a. m. when he saw a patrol car parked at the intersection of Amy Lane and Valley Road with its emergency lights on and its spotlight trained on some bushes. Officer Levin was standing beside the patrol car. A man wearing a white T-shirt and blue jeans stepped out of the bushes and walked toward the officer. The man then shot Levin in the head at point-blank range and fled down Valley Road.
Mary Richards, who lived on Valley Road, heard the shot and looking through a window, she saw a man wearing a white T-shirt running down Valley Road from Amy Lane. Richards could not positively identify appellant, but testified he resembled the man she saw.
Appellant called Tiller at approximately 10:30 a. m. on the morning of the shooting. Tiller described the conversation as follows:
"I answered the phone. He said, Donnie, I said, yes. He said this is Darren. He says have you been listening to the news? And I said, yes, Darren, did you do that? He said, Yeah, I shot him. I killed the mother fucker. I shot him in the head."
Tiller testified that this conversation was in reference to the August 7 shooting of the Harker Heights policeman. After appellant hung up, Tiller contacted the police.
Appellant returned to the trailer after the shooting and spoke to Roberson. Roberson testified that appellant was still dressed in a white T-shirt and blue jeans, had red blotches which appeared to be blood on his face and shirt, and appeared to be in a state of panic. After Roberson told him that the police had been to the trailer looking for him, appellant said that "he had to get out of town because he wasted a cop, that he killed a cop." Asked by Roberson how he had done it, appellant reached for his back pocket and then pointed his finger at Roberson's head at the place corresponding to the bullet wound to the head of the deceased. After washing up and changing clothes, appellant left the trailer.
Francisco Hernandez testified that he met appellant in downtown Killeen on the morning of August 7. He invited appellant to his home for lunch and subsequently offered to let him spend the night. The next morning, after hearing a radio news report describing the suspect in the Levin murder, appellant told Hernandez that "I *880 am the one that they're looking for but I didn't kill no policeman."
Appellant subsequently made his way to Belton, where he boarded a bus for Houston. Police acting on information from Hernandez arrested appellant at the bus station in Houston at approximately 11:30 p. m. August 8. A .25 caliber automatic pistol that ballistics tests proved fired the bullet that killed Levin was in appellant's pocket at the time of his arrest.
David Kingsley was acting Chief of Police for Harker Heights at the time of the charged offense. He testified that Officer Levin was the only peace officer killed in Bell County on August 7, 1978.
If the accused admits or confesses killing the deceased, proof of the admission or confession is direct evidence of the main inculpatory fact and a charge on circumstantial evidence is not required. Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App. 1974); Swift v. State, 509 S.W.2d 586 (Tex. Cr.App.1974). However, if the admission or confession is equivocal as to the killing of the deceased, or if it is not clear that the killing admitted or confessed is the killing with which the defendant is accused, proof of the admission or confession alone will not relieve the trial court of the necessity of giving a circumstantial evidence charge. Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr. App.1977); Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974); Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948). Even if the confession is equivocal, a circumstantial evidence charge is not necessary if the other evidence, together with the confession, conclusively establishes that the killing confessed is the killing for which the defendant is on trial. Ridyolph v. State, supra; Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973); Steel v. State, 459 S.W.2d 649 (Tex.Cr.App.1970); Patterson v. State, 416 S.W.2d 816 (Tex.Cr.App.1967).
Tiller testified that appellant's admission to him that he "shot him in the head" was in reference to the shooting of the Harker Heights policeman on August 7. Officer Levin, who was shot in the head, was the only peace officer in Bell County killed that day. Appellant told Roberson that he "killed a cop" and described the shooting in a manner consistent with the murder of Levin. Appellant was seen in the area a few minutes prior to the shooting wearing a white T-shirt and blue jeans, the witness to the shooting testified that the assailant was dressed in that fashion, and Roberson testified that appellant was so dressed when he returned to the trailer splattered with blood. These facts, together with the other evidence discussed above, leave no reasonable doubt that the killing admitted by appellant was that of Officer Levin. Therefore, the admissions are direct evidence of the main inculpatory fact and the trial court did not err in refusing to charge on the law of circumstantial evidence. See and compare Ridyolph v. State, supra; Casey v. State, 523 S.W.2d 658 (Tex. Cr.App.1975); Hielscher v. State, supra; Hogan v. State, supra; Steel v. State, supra; Patterson v. State, supra.
Appellant contends that the trial court erred by refusing his motion for a change of venue. Appellant argues that news accounts of the shooting had created such a prejudice against him that he could not obtain a fair and impartial trial in Bell County.
The trial of appellant commenced eighty-three days after the commission of the offense. The hearing on the change of venue motion was held September 20, 1978, forty-four days after the shooting. Six residents of Bell County testified that in their opinion appellant could not receive a fair trial in the county at the time of the hearing of the motion. However, four of these witnesses stated during cross-examination that they could be fair and impartial if selected as jurors. Appellant's other witnesses were employees of local newspapers and radio and television stations. Each described the coverage appellant's case had received and *881 identified copies of newspaper stories and transcripts of broadcasts that were admitted in evidence. On cross-examination, these witnesses stated that the purpose of their news coverage had been to inform, not to inflame, the public, that they believed appellant could receive a fair trial, and that they could be impartial jurors.
The State called eleven witnesses to testify that there was not such a prejudice against appellant in Bell County that he could not receive a fair trial. The State also introduced evidence showing that the county's population was between 125,000 and 158,000; that there were 45,000 registered voters in the county; and that the four largest cities in the county were Killeen, population 52,000, Temple, population 48,000, Harker Heights, population 10,500, and Belton, population 10,000.
The evidence raised fact issues whether appellant could obtain a fair and impartial trial in Bell County. These issues were decided adversely to appellant when the trial judge, as the trier of fact, overruled the motion for change of venue. Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App. 1978); Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977).
Although appellant did not renew his motion for change of venue, it is instructive to consider the voir dire examination of prospective jurors which began October 31, 1978. Both appellant and the State agree that of the 132 prospective jurors examined, 63 had heard something about the case through news reports and 21 had formed an opinion that appellant was guilty. They also agree that 11 of the jurors selected had heard about the case, but all testified that they could be fair and impartial and would base their verdict on the evidence presented in court.
Finally, we have examined the newspaper stories and broadcast transcripts in the record and find that they are factual and not inflammatory. They do not in themselves establish prejudice or require a change of venue. Freeman v. State, supra; Knight v. State, 538 S.W.2d 101 (Tex.Cr.App.1975).
We find no evidence that appellant did not receive a fair trial by an impartial jury free from outside influence. The trial court did not abuse its discretion in overruling the motion for change of venue.
Appellant contends that the trial court erred in overruling his challenges for cause to three venire members and in failing to grant his request for additional peremptory challenges. Two of these venire members, Johnnie Kopriva and Robert Latsha, were peremptorily challenged by appellant after his challenges for cause were overruled. Appellant subsequently exhausted his peremptory challenges and, after his challenge for cause to venire member James Smith and his request for additional peremptory challenges were overruled, was forced to accept Smith as a juror despite his declaration that Smith was an objectionable juror. Thus, appellant properly preserved the alleged errors. Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App. 1978); Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274 (1944).
Appellant contends that venire member Kopriva was biased against a portion of the law on which appellant was entitled to rely. Specifically, he argues that Kopriva was unable to accept appellant's right to remain silent and present no evidence in his defense. This contention is based on the following voir dire examination by defense counsel:
"Q. Do you feeland many people do, so you would not necessarily be in the minoritydo you feel that a person accused of a criminal offense should be required to come in the courthouse and defend himself, stand up and defend himself?
"A. No, sir.
"Q. Do you feel that he should be required to put on any evidence of any type in the defense of his case?
"A. Yes, sir.
*882 "Q. You feel that he should, sir?
"A. Yes, sir he should. His lawyer should put a defense on if that's what you mean.
"Q. Yes, sir. That's what I'm asking.
"A. Yes, sir.
"Q. You feel that way, even though the law allows for the defendant to sit silently and not put on any evidence?
"A. I don't think that I understand that question, sir.
* * * * * *
"Q. A moment ago you kind of indicated that you felt he should put on some evidence.
"A. I didn't understand the question, though.
"Q. All right. To make sure we understand then, you're saying that he does not have to put on any evidence to satisfy you?
"MR. EADS: Objection, Your Honor.
"THE COURT: Overruled.
"Q. If you will answer my question, please sir. You are saying again that a defendant, does not have to put on any evidence to satisfy you that he's not guilty?
"A. No, sir. I think the lawyers should present their evidence of the case because
"Q. You can explain that answer if you would like to, sir.
"A. Well, even though the State proves its case andwell, I would still like to hear the other side of the story."
After this exchange with defense counsel, the prosecutor explained to the venireman the State's burden of proof and the defendant's Fifth Amendment privilege. Kopriva indicated that he understood and that he would not hold appellant's silence against him. Defense counsel then reexamined Kopriva as follows:
"Q. Mr. Kopriva, Mr. Eads has done an excellent job of outlining for you what the law says and what the constitution says.
"A. Yes, sir.
"Q. You are certainly a mature adult, and you certainly have the option at this point of stating to us that you disagree with that law. All right, sir?
"A. (Headnod.)
"Q. So, that's really what I'm asking you. Do you, even though the law may say that the defendant has a right to remain silent, the law may say that the defendant can sit here and not open his mouth, the law may say that the defense counsel can sit here and not open their mouths. Do you yourself still feel that the lawyers should at least put on some evidence or that the defendant should at least take the stand?
"A. No, sir. I understand the question now. If he proves his case beyond a reasonable doubt that the defendant is guilty, well then, I'm sure that y'all are not going to sit there and just letwithout saying a wordI mean, that's what the trial is about.
"Q. I'll admit we are kind of stretching it a little bit.
"A. Yes, sir.
"Q. And certainly we will be talking just as we are talking here today.
"A. Yes, sir.
"Q. But let's say we do all of our talking out here at the counsel table and no evidence of any kind is put forth in behalf of the defendant.
"A. Yes, sir.
"Q. Do you feel that a defendant should put on some evidence of some kind in order to refute or to contest his guilt?
"A. No, sir. I leave that up to the defendant."
*883 It is obvious that Kopriva was initially confused as to the relationship between appellant's right to remain silent and his right to effective assistance of counsel. Subsequent questioning by both the prosecuting attorney and defense counsel makes it clear that Kopriva did not expect appellant to testify or present other evidence but only that his attorneys would do their best on his behalf. The trial court did not err by overruling the challenge for cause. Scott v. State, 490 S.W.2d 578 (Tex.Cr.App.1973).
Appellant contends that his challenge for cause to venire member Robert Latsha should have been granted because he believed that death is the only proper punishment for capital murder. This contention is based on the following exchange with defense counsel:
"Q. Okay, let's assume that the State puts onhere again, a hypothetical case, the State puts on that you were sitting in a capital murder case and the State proved beyond a reasonable doubt, satisfied you that the individual, that the defendant in that particular case caused the death of a police officer by shooting him with a gun and that the defendant knew the was a police officer and knew he was acting in the lawful discharge of his duties.
"Now, do you have an opinion, having found that man guilty, as to what proper punishment would be in that case?
"A. Do I have an opinion as to what the proper punishment would be?
"Q. Yes, sir.
"A. I thought the way it was stated, there is only one punishment for capital murder.
"Q. All right. What do you believe the one punishment is for capital murder?
"A. The death penalty.
"Q. All right. And do you believe that should be the proper punishment for capital murder?
"A. Yes, sir.
"Q. And that's an affirmative opinion of yours?
"A. Yes, sir.
"Q. And is that an opinion that you have arrived at as a result of your past experience and your upbringing and your thinking that you have indicated that you have made about the death penalty?
"A. Yes, sir.
"Q. And it would be your position that if a capital murder case, involving the shooting of a police officer, that if thatif the individual was proven guilty beyond a reasonable doubt that he shot a police officer who was in the lawful exercise of his duties and knew that man was a police officer when he shot him, that in your mind the only proper punishment that could be given would be the death penalty?
"A. Yes, sir."
Prior to this exchange, the prosecutor, during his voir dire, had stated to the venireman that the law provides that the punishment for capital murder "shall be death." That this misled Latsha is indicated by his statement to defense counsel that, "I thought the way it was stated, there is only one punishment for capital murder." After the punishment alternatives and procedure were better explained, Latsha clearly stated that he would affirmatively answer the punishment issues only if the State met its burden of proof and that he believed death to be the proper punishment only if the answers to the issues were yes. No error is shown.
Appellant contends juror James Smith expressed an opinion as to his guilt and a bias against the minimum punishment for murder during his voir dire examination. The first contention is based on the following exchange with defense counsel:
"So since we have publicity in this case I have to ask you, sir, whether *884 or not, based on what you've read and maybe something you've heard from discussions at Fort Hood with people that you work with, whether you've formed an opinion as to the guilt or the innocence of this man?
"A. An opinion. I don't know whether it would be an opinionan assumption I would sayassumingI don't know.
"Q. Well, now, I don't know that it really requires, I think, whether you call it an opinion or assumption. Let me ask you this. Would it require some evidence for you to set aside that assumption or feeling that you have?
"A. I'm not a lawyer but it seems to me like if he was found with a weapon that would be pretty conclusive in my way of thinking. If it was proved to be the weapon that shot the policeman.
"Q. I understand what you're saying.
"A. I don't know.
"Q. And the point I'm trying to make, of course, is the State has gone over when we say the State has the burden of proof, what does that mean to you?
"A. It means they have to prove it beyond a doubt.
"Q. Alright, now, sometimes we have individuals and everyone's opinion, of course, they're entitled to their opinion and sometimes a person's opinion agrees with the law and sometimes it doesn't. Sometimes their feelings agree. We can't help but have feelings established about something and the only thing that I'm trying to get at is because of what you read and because of this feeling that you have, for example about the gun, would you require the defendant to produce evidence of his innocence to you before you could set aside these feelings?
"MR. EADS: I'll object to the question, Your Honor. He's said that he would make the State prove the burden of proof, your Honor.
"THE COURT: Overruled. Answer the question.
"A. I think the State would have to prove it.
"Q. .... You still would agree that you have formed some sort of feelings about this case?
"A. As to the guilt or innocence?
"Q. Yes, sir.
"A. An opinion, yes. I have formed an opinion but now whether it's been proven I don't know whether I'm correct or not.
* * * * * *
"Q. Let me ask you this, sir. If you were serving as a juror on a criminal case, not necessarily this case and at the close of evidence you felt like the defendant was probably guilty but you weren't sure beyond a reasonable doubt, how would you feel compelled to vote in the juryroom?
"A. You would have to prove to me that he was guilty as a juror before I would say guilty."
In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Supreme Court said:
"The constitutional standard of fairness requires that a defendant have `a panel of impartial, "indifferent" jurors.' Irvin v. Dowd, 366 U.S. [717] at 722, 81 S.Ct. [1639] at 1642, 6 L.Ed.2d 751. Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
"`To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if *885 the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' Id., at 723, 81 S.Ct. [1639] at 1642.
"At the same time, the juror's assurance that he is equal to this task cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate `the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.' Ibid."
421 U.S. at 799, 800, 95 S.Ct. at 2036.
The voir dire of Smith fails to show that he would be influenced as a juror by any opinion or prejudice or by anything he may have heard or read about the case. The trial court did not err in overruling appellant's challenge for cause based on Smith's alleged opinion as to appellant's guilt. Freeman v. State, supra.
Appellant's contention that Smith was biased against the minimum punishment for murder is based on the following voir dire examination by defense counsel:
"Q. And murder being defined the same way, the knowing and intentional killing of another human being. Do you feel like that in a murder case that you could consider as little as five years as a punishment?
"A. I don't think so, sir.
"THE COURT: Counsel, you need to explain to him that you're talking about not this case but a proper case.
"Q. Right. We're not talking about any particular murder case. The definition of murder never changes. Murder is always the intentional and knowing killing of another human being. But the facts change.
"A. Yes, sir.
"Q. And we have different facts and different cases so we have a range of punishment that varies. But even so some people themselves feel that since the definition never changes that they just could not go along with what the law says and give somebody as low as five years for the intentional and knowing killing of another human being.
"A. I think my answer would have to depend on the facts of the case involved, would it not? That's a hard question for me to answer.
"Q. I understand, sir. I'm just
"A. I'm not trying to hedge, I just don't know the answer.
"Q. I understand what you're saying. And as the judge said we're not talking about a particular case, but we do have the same definition regardless of what the facts are and so I'm just talking about where you have the knowing and intentional killing of another human being.
"A. If it's obvious murder I don't think five years isI don't see the five years.
"Q. Where do you get this opinion from?
"A. I just don't believe in murder.
"Q. Alright. You understand, of course, that as the judge has said, we don't know what the facts would be and I would submit to you that there are all kinds of facts
"A. Yes, sir.
"Q. And that some facts there may be some sort of mitigating circumstances and I don't know what those mitigating circumstances would be but still you would think that regardless of what was shown to you that you would still be unable to give five years in a case for the knowing and intentional killing of another human being?
"A. Yes, sir, I don't think I could."
Thereafter, the prosecutor sought to rehabilitate the juror by demonstrating the wide range of fact situations that may fall within the murder statute. The prosecutor then questioned Smith as follows:
*886 "The point I'm trying to make, Mr. Smith, is this. You can see why we have a range of punishment for murder.
"A. Yes, sir, I see.
"Q. And all I'm saying is, do you feel like that as a juror in the State of Texas, that you could sit and listen to the evidence and consider the full range of punishment in a criminal case. If it's a murder case you could consider not less than five years or life in the Texas Department of Corrections in that proper case where the facts justified it. Where the law allowed it and the circumstances warranted that particular punishment? That's the point I'm trying to make."
Smith stated that he could consider the minimum punishment in a proper case. The record does not support appellant's contention that Smith could not give the minimum punishment of five years and that the juror was subject to challenge for cause pursuant to Art. 35.16(c)(2), V.A.C.C.P. Von Byrd v. State, supra.
Since we have concluded that Kopriva, Latsha, and Smith were not excludable for cause, it follows that appellant was not wrongfully deprived of a peremptory challenge upon a venire member who was subject to challenge for cause or forced to accept such a venire member as a juror. Thus, the trial court did not abuse its discretion in denying appellant's request for three additional peremptory challenges. Von Byrd v. State, supra; Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977).
In twelve grounds of error, appellant complains of the admission of evidence offered to show a motive for the commission of the instant offense that also shows he committed extraneous offenses in New Mexico. Michael Roach, a deputy sheriff in Valencia County, New Mexico, testified that he arrested appellant on October 29, 1977, for criminal sexual penetration of a minor and later took him before a magistrate for arraignment. John Horecek, a magistrate in Valencia County, testified that he arraigned appellant on November 1, 1977. At this time, Horecek informed appellant that he was charged with two counts of sexual penetration of a minor carrying a maximum punishment of imprisonment for life and one count of kidnapping carrying a maximum punishment of imprisonment for fifty years, and set bail at $100,000. Ronald Childress, a New Mexico attorney, testified that he represented appellant in regard to these charges and that a trial was set for January 30, 1978. Lawrence Romero, sheriff of Valencia County, Daniel Hawkes, a deputy sheriff, and Velma Hardesty, the jailer, testified that appellant escaped from the Valencia County jail on January 9, 1978. These witnesses identified and the trial court admitted in evidence certified copies of the complaint, indictment, and arraignment in the sexual penetration and kidnapping case, and an indictment and arrest warrant charging appellant with escape.
In its charge to the jury, the trial court limited the jurors' consideration of these extraneous offenses to the question of appellant's motive for killing the deceased. One of the exceptions to the general rule that an accused is entitled to be tried on the accusation made in the State's pleading and not for some collateral crime or for being a criminal generally is that evidence showing a motive is admissible even though it also shows the commission of an extraneous offense. Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App.1978); Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App.1972); Rodriguez v. State, 486 S.W.2d 355 (Tex.Cr.App.1972); Stephens v. State, 147 Tex.Cr.R. 510, 182 S.W.2d 707 (Tex.Cr.App.1944).
Although several cases in which extraneous offenses were held admissible to show motive were prosecutions for escape or for offenses growing out of an escape, appellant is mistaken when he argues that the rule of admissibility is limited to this narrow *887 fact situation. In Hughes v. State, supra, the defendant shot a police officer who had stopped him for investigation of a reported case of credit card abuse. This Court held that the defendant's extortion conviction in an Alabama federal court seven months prior to the shooting, which resulted in a three-year probated sentence, was admissible to show motive. In Cherry v. State, supra, the defendant's escape from a Georgia penitentiary, where he was serving a life sentence, was held to be admissible to show his motive for shooting a police officer eight months later. To the same effect are Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958) (evidence that the defendant attempted to extort money from his victim four years prior to the murder) and Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393 (1955) (evidence that the defendant committed a burglary two days prior to shooting a police officer who stopped him for speeding.)
Appellant argues that it was unnecessary to admit the New Mexico offenses because there was other evidence of motive, including the apparent arson at the Silver Spur and statements appellant had made to friends threatening to kill a Harker Heights policeman. That appellant may have had other motives for killing Levin, however, does not mean that he was not motivated by a desire to avoid his return to New Mexico. See Hughes v. State, supra; Ellisor v. State, supra. The trial court did not err in admitting the evidence of extraneous offenses for the limited purpose of showing motive.
Appellant contends that the trial court erred by refusing to define "probability" in its charge to the jury at the punishment stage of the trial. This Court has previously held that such a definition is not required. King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977). No error is presented.
Two psychiatrists, Drs. John Holbrook and James Grigson, were called by the State to testify at the punishment stage of the trial. Both doctors were given a hypothetical fact situation based on the evidence in this case and asked if the individual described in that question would probably commit future acts of violence that would constitute a continuing threat to society. Both doctors testified that in their opinion he would do so.
Appellant argued at the trial, as he does now on appeal, that Holbrook and Grigson were not qualified to give an opinion as to his future conduct because they had not personally examined him and based their opinions solely on the State's hypothetical question. Appellant also argues that psychiatrists, as a group, are not qualified by education or training to predict future behavior. Appellant does not contest the individual qualifications of either witness.
This Court is well aware that the ability of psychiatrists to predict future behavior is the subject of widespread debate. However, we are not inclined to alter our previously stated view that a trial court may admit for whatever value it may have to a jury psychiatric testimony concerning the defendant's future behavior at the punishment stage of a capital murder trial. Chambers v. State, 568 S.W.2d 313 (Tex.Cr. App.1978); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976).
The trial court did not err by permitting the doctors to testify on the basis of the hypothetical question. The use of hypothetical questions in the examination of expert witnesses is a well established practice. 2 C. McCormick and R. Ray, Texas Evidence, Sec. 1402 (2d ed. 1956). That the experts had not examined appellant went to the weight of their testimony, not to its admissibility.
Appellant argues that the hypothetical question was improper because it was not based on all of the evidence in the case. Although a hypothetical question must be based on the facts of the case, counsel may assume the facts in accordance *888 with his theory of the case. If the opponent desires to secure the expert's opinion upon a different set of facts he may do so on cross-examination. Atkinson v. State, 511 S.W.2d 293 (Tex.Cr.App.1974); Knoeppel v. State, 382 S.W.2d 493 (Tex.Cr.App. 1964); McMurrey v. State, 145 Tex.Cr.R. 439, 168 S.W.2d 858 (Tex.Cr.App.1943); Davis v. State, 54 Tex.Cr.R. 236, 114 S.W. 366 (1908). These grounds of error are overruled.
Appellant also contends that Holbrook and Grigson should not have been permitted to express an opinion as to the probability of future violent behavior on his part because such testimony constitutes a legal conclusion. Appellant cites the case of Carr v. Radkey, 393 S.W.2d 806 (Tex.Sup. 1965). In that case, the court held that
"a witness may not be asked whether a testator had the mental capacity to make and publish a will because, under Brown v. Mitchell [88 Tex. 350, 31 S.W. 621 (1895)] whether a person has mental capacity to execute a will involves a legal definition and a legal test. A witness may be asked, assuming he knows or is a properly qualified expert, whether the testator knew or had the capacity to know the objects of his bounty, the nature of the transaction in which he was engaged, the nature and extent of his estate, and similar questions." 393 S.W.2d at 813.
Appellant argues that a witness should not be permitted to testify that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society because the question involves a legal definition and a legal test.
Appellant's contention is without merit for the simple reason that "probability," "criminal acts of violence," and "continuing threat to society" are not terms defined by statute or case law. On the contrary, they are words of ordinary meaning. King v. State, supra. Thus, the testimony in question did not involve the application of a legal definition or test. We also note that if appellant were correct in arguing that a witness may not express an opinion on a matter involving a legal definition or test, this would, among other things, prevent the routine practice of asking a psychiatrist whether, in his opinion, the defendant was legally insane at the time of the offense. V.T.C.A.Penal Code, Sec. 8.01.
Finally, appellant contends that Art. 37.071, V.A.C.C.P., is unconstitutional because the term "probability" is so vague that men of common intelligence must guess as to its meaning and application. This contention has been repeatedly overruled by this Court. Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976); Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976); Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App. 1975), aff'd 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
At the punishment stage of the trial, witnesses from various cities in New Mexico, Kansas, Oklahoma, Louisiana, and Texas testified that appellant's reputation in their communities for being a peaceful and law-abiding citizen was bad. Evidence was also admitted of appellant's prior conviction in Louisiana for possession and distribution of marihuana, possession of amphetamine, and carrying a concealed weapon, and in a federal district court in Oklahoma for unlawful possession of a sawed-off shotgun. This evidence, together with the evidence adduced at the guilt-innocence stage of the trial, is more than adequate to support the jury's affirmative answers to the punishment issues.
Although appellant's counsel and the State have both filed briefs which are of excellent quality and which greatly aided the Court in its difficult decision, the appellant has filed a pro se brief in which he asserts additional grounds of error. In addition to the grounds of error urged by counsel appellant asserts that the trial court *889 erred in refusing to grant his motion for an instructed verdict and in refusing to sequester the jury during the trial. The evidence that we have already summarized in this opinion is amply sufficient to support the jury's verdict and the court did not err in overruling appellant's motion for an instructed verdict. The careful trial judge considered the appellant's motion concerning the sequestering of the jury during the trial and overruled that motion. Whether to grant this motion is within the discretion of the trial court, and we find nothing to show an abuse of discretion by the trial judge in overruling that motion. The grounds of error presented by the pro se brief are overruled.
The judgment is affirmed.
ROBERTS, J., concurs in result.
CLINTON, Judge, dissenting in part.
To the overruling of the twelve grounds of error concerning admission of evidence showing commission of extraneous offenses in New Mexico, I respectfully dissent. The Court appears to recognize other proof made by the State and to acknowledge that it showed appellant killed Levin from a more immediate, localized motivation. Given the obvious prejudicial impact of the extraneous New Mexico offenses, I cannot agree that we may tolerate it on the double negative theory that existence of other motives for killing Levin "does not mean that he was not motivated by a desire to avoid his return to New Mexico." It seems clear to me that this is the classic case where slight probative value is far outweighed by heavy prejudice.
PHILLIPS, J., joins.
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123 F. Supp. 906 (1954)
James T. WATT, Administrator, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. B-224.
United States District Court E. D. Arkansas, N. D.
September 13, 1954.
*907 *908 Kaneaster Hodges, Newport, Ark., Paul B. Young, Pine Bluff, Ark., for plaintiff.
Gerland P. Patten, Little Rock, Ark., for defendant.
LEMLEY, District Judge.
This cause having been tried to the Court, and the Court being well and sufficiently advised doth make and file herein the following Findings of Fact, Conclusions of Law and Comment thereon, to-wit:
Findings of Fact
1. This is a suit against the United States which had been brought by the plaintiff, James T. Watt, as administrator of the estates of his father, G. C. Watt, and of his mother, Nennie McDougal Watt, both deceased, under the provisions of the Federal Tort Claims Act of 1946 as carried forward into Title 28 of the United States Code. 28 U.S.C.A. §§ 1346(b) and 2674.[1] Plaintiff seeks to recover damages for the deaths of his parents which occurred as a result of a collision between the DeSoto automobile in which they were riding and a truck assigned to Company "I", 153d Infantry, Arkansas National Guard, which collision took place on Arkansas State Highway No. 14 at a point on the bridge over Cache River between Jonesboro and Newport, Arkansas. The truck was being driven at the time of the accident by Sergeant First Class Jerry G. Reedy who was the unit administrative assistant of Company "I" above mentioned; the Watt automobile was being driven by Mr. G. C. Watt but was the property of Mrs. Watt. As a result of the collision Mrs. Watt was almost instantaneously killed, and Mr. Watt received injuries from which he died a few days later. It is the theory of the plaintiff that the accident was proximately caused by the negligence of Sgt. Reedy, that at the time of the accident he was a federal employee acting within the scope of his employment, and that the Government is liable for the damages claimed to have been sustained by the estates and next of kin of the two decedents. The defendant denies that Sgt. Reedy was a federal employee, denies that he was acting within the scope of his employment if he was in fact such an employee, and denies that he was negligent. Affirmatively, it contends that Mr. Watt was guilty of contributory *909 negligence, and, further, that such alleged contributory negligence on his part was imputed to his wife so as to bar her estate and next of kin, as well as his, from any recovery herein.
2. At the time of the accident Sgt. Reedy was driving the truck from the armory at Jonesboro to the headquarters of the United States Property & Disbursing Officer (USP & DO) at Little Rock for the purpose of turning over to the latter certain clothing formerly issued to Company "I" and for the further purpose of drawing additional supplies and equipment for the use of said unit. He was accompanied on the trip by Sergeant First Class Reuben F. Taylor who was the unit caretaker for said National Guard unit. When the accident occurred, Mr. and Mrs. Watt were returning to their home in Tennessee after having visited Mrs. Watt's brother, who resides in Newport.
3. The bridge where the accident occurred runs east and west across Cache River; it was 900 feet long and 21 feet wide, and while it was not a one-way bridge, it was extremely narrow, and in order for two vehicles to meet on it and pass in safety proper care had to be exercised by both drivers. The flooring and railings of the bridge were of wood, and the planking of the floor ran lengthwise parallel to the railings. On the day of the accident it was raining, and the bridge surface was quite slick, a condition which materially increased the likelihood of accident. The dangerous nature of the bridge had been recognized by the Arkansas State Highway Department, as is evidenced by the fact that "Slow" and "Narrow Bridge" signs had been erected on the approaches at both ends, and the ends of the railings had been painted with diagonal lines indicating danger. Both Sgt. Reedy and Sgt. Taylor had made the round trip between Jonesboro and Little Rock many times; both were thoroughly familiar with the bridge, and both knew that it presented a hazard, particularly when wet and slick.
A motorist proceeding toward Little Rock from the east approaches this bridge around a gentle curve, and when he is yet a substantial distance east of the bridge, he obtains an unobstructed view for its entire length; conversely, a motorist approaching from the west has a similar unobstructed view for the entire length of the bridge. As indicated, the warning signs at each end of the bridge were identical.
4. Prior to reaching the bridge Reedy and Taylor had been driving about 35 or 40 miles per hours, and as the truck rounded the curve leading to the bridge it was going about 35 miles per hour; said truck was a rather large and a very heavy vehicle. According to the testimony of both Reedy and Taylor, which we credit, they first saw the Watt automobile approaching when they were 150 or 200 feet east of the bridge; said vehicle was traveling about 40 or 45 miles per hour and was being driven down the middle of the structure; although it was on the bridge, it had not reached the center thereof when first observed by Reedy and Taylor.
When Reedy saw the Watt car approaching, he made no effort to stop his truck so as to allow Mr. Watt to clear the bridge; nor did he reduce its speed to an extent sufficient to bring it under immediate control. He did reduce speed somewhat and entered the bridge at a speed of from 10 to 20 miles per hour, expecting Mr. Watt to pull over to the right so that the vehicles would clear. He admitted, however, that when he entered the bridge, Mr. Watt had not slowed down and had made no move to get over on his own side of the roadway. Almost immediately upon entering the bridge Reedy sensed danger, and applied his brakes, which action threw the truck into a skid to the left; said vehicle crossed the center line of the bridge and struck the south railing, skidding along it for some distance; thereafter, the vehicle moved back toward the middle of the bridge, and the impact occurred near the center thereof. After the collision *910 the Watt car was on its own side of the road, but whether Mr. Watt had pulled over to that side prior to the impact or whether the car was carried there by the force of the collision is not altogether clear since Reedy and Taylor, the only surviving eye-witnesses, testified that when they began to skid, they devoted all of their attention to the truck and did not see what Mr. Watt did.
5. As stated, Sgt. Reedy was the unit administrative assistant of the National Guard unit which has been mentioned; as such he was an employee of the United States. We find, however, that at the time of the accident he was not acting within the scope of his employment as such federal employee since his duties as unit administrative assistant did not include the operation of motor vehicles in connection with transporting property to and from Jonesboro; his duties, according to the evidence, were prescribed by regulations, were primarily clerical in nature, and were limited to tasks to be performed in and around the armory at Jonesboro. The duty of driving the truck between Jonesboro and Little Rock was one of the duties of Sgt. Taylor as unit caretaker, and, as has been said, the latter, while present, was not driving.
6. While the preceding finding is of itself fatal to the claims of the plaintiff, we further find, for purposes of the record, that Sgt. Reedy was guilty of negligence which was a proximate cause of the accident and of the deaths of the plaintiff's decedents. As we view the situation, Reedy was confronted with a potentially dangerous situation while he was yet a considerable distance from the bridge; looking down this bridge, which he knew was narrow and dangerous, particularly under the conditions then existing, he saw a driver approaching at what was under the circumstances a dangerous rate of speed and driving in the middle of the road. Under such circumstances, we think that ordinary care required Sgt. Reedy to either stop the truck before entering the bridge so as to allow Mr. Watt to clear it, or to so reduce the speed of the vehicle as to bring it under immediate control and at the same time afford Mr. Watt the maximum opportunity to get back on his own side of the center line. Sgt. Reedy pursued neither course, however; while he slackened his speed somewhat, he was still going at such a pace that when he undertook to apply his brakes, the truck went into a skid from which he was unable to extricate it in time to avoid the collision. This negligence on his part continued as an active and efficient force until the accident occurred, and it directly and proximately contributed to said accident.
7. On the other hand, we further find that Mr. Watt was also guilty of negligence which was a proximate cause of the accident, his negligence consisting of his entering the bridge at a speed which was excessive under the circumstances then and there existing, in driving his car down the middle of the bridge at practically the same rate of speed, and in failing to have the vehicle under such reasonable control as would enable him to check its speed or to stop it absolutely if necessary to avoid the impending danger.
Much that has been said concerning the negligence of Sgt. Reedy can also be said with respect to the contributory negligence of Mr. Watt. The dangerous condition of the bridge was apparent to anyone of reasonable prudence, and on approaching the bridge from the west Mr. Watt was, as heretofore pointed out, confronted with warning signs identical to those visible to Sgt. Reedy; and, of course, Mr. Watt could have seen Sgt. Reedy's truck approaching from the time it rounded the curve, just as Reedy saw the Watt car approaching. Notwithstanding the wet condition of the road and bridge, and notwithstanding the warning signs, the evidence shows that Mr. Watt entered the bridge and started across it at a speed of around 45 miles per hour, which was excessive under the circumstances even if no other vehicle had been approaching, and also that he did not stay on the right of the center line but drove down the middle of the bridge at about the same rate of speed, *911 continuing his course even after the truck entered the bridge. In this connection it should be pointed out that if Mr. Watt in fact saw the truck, he should have slackened his speed immediately, gotten over on his own side of the bridge, and brought the car under proper control; if he did not see the truck, it was only because he was not keeping a proper lookout, and if such was the case, then he would have been guilty of negligence in that regard.
In finding that Mr. Watt was negligent we do not overlook the fact that both he and his wife are dead, and that the only eye-witness testimony relative to his conduct comes from the lips of the other parties to the accident. But at the trial of the case both Sgt. Reedy and Sgt. Taylor made a favorable impression upon us and appeared to be trying to tell the truth. Reedy is no longer a member of the National Guard, and Taylor was not driving the truck, and no blame was ever attached to him by anyone. Hence, neither of these men can be considered as a directly interested witness, and we would not be justified in rejecting their testimony. Furthermore, their testimony as to Mr. Watt's speed finds corroboration in the initial report made by the member of the Arkansas State Police who investigated the wreck; his first impression, based upon his examination of the bridge, the condition of the vehicles, and other pertinent data, was that the Watt car had been going about 45 miles per hour, and this impression he incorporated into his written report. True, he later changed his mind on this point, but he impressed us as being now biased in favor of the plaintiff, and for some reason prejudiced against Sgt. Reedy; therefore, we do not attach to his later testimony the weight which it otherwise might have.
8. At the time of the accident Mr. Watt was operating his wife's car as her agent and was subject to her direction and control with respect to the management and operation of the vehicle.
Conclusions of Law
1. This Court has jurisdiction of this cause and of the parties hereto.
2. Since Sgt. Reedy was not acting within the scope of his employment as unit administrative assistant of Company "I", 153d Infantry, Arkansas National Guard, at the time of the accident, the plaintiff cannot recover herein.
3. Aside from the preceding conclusion, our finding that Mr. Watt was guilty of contributory negligence precludes any recovery for the benefit of his estate or for the benefit of his next of kin.
4. Since Mr. Watt was operating his wife's car as her agent and was subject to her direction and control with respect to the management of her automobile, his contributory negligence was imputed to her and precludes any recovery herein for the benefit of her estate or for the benefit of her next of kin. This conclusion is likewise aside from Conclusion No. 2, supra.
5. The plaintiff's complaint must be dismissed with prejudice and in its entirety at the cost of the plaintiff.
Comment
Our factual findings with respect to the negligence of Sgt. Reedy and the contributory negligence of Mr. Watt, do not, in our opinion, require any elaboration or discussion; but we deem it well to comment to some extent upon the status of Sgt. Reedy and upon the question of whether or not Mr. Watt's contributory negligence should be imputed to his wife.
In order to recover herein the plaintiff must prove, in addition to negligence, that Sgt. Reedy was an employee of the United States and, further, that at the time of the accident he was acting within the scope of his employment as such federal employee. 28 U.S.C.A. § 1346(b). That Reedy was a federal employee seems clear from the holdings of U. S. v. Holly, 10 Cir., 192 F.2d 221; Elmo v. U. S., 5 Cir., 197 F.2d 230; U. S. v. Duncan, 5 Cir., 197 F.2d 233; and Elmo v. U. S., 5 Cir., 210 F.2d 406. While *912 all of the cases just cited relate to the status of unit caretakers employed at various National Guard units, rather than to unit administrative assistants, we can perceive no logical distinction, as far as employment status generally is concerned, between a unit caretaker and a unit administrative assistant. In this connection it should be noted that 32 U.S.C.A. § 42 provides that funds allotted by the Secretary of the Army for the support of the National Guard may be utilized for the purpose, among others, of compensating "competent help for the care of material, animals, armament, and equipment of organizations of all kinds". It appears from the evidence in this case that prior to 1950 each National Guard unit in Arkansas had one civilian caretaker employee who was known as the "unit caretaker". In 1950, however, two positions were created, one being known as "unit administrative assistant", which position Sgt. Reedy was holding at the time of the accident, and the other retaining the old title of "unit caretaker", which Sgt. Taylor was holding at said time.[2] It further appears from the evidence that the Secretary of the Army delegated to the several adjutants general the authority to employ caretaker personnel; to fix their rates of pay, within certain limits; to prescribe their duties; to fix their hours of work, not to exceed 40 per week; and to discharge such employees. This authority, however, was to be exercised "subject to the provisions of law and such instructions as may from time to time be issued by the Chief, National Guard Bureau". From the foregoing it will be seen that both the unit administrative assistant and the unit caretaker were hired in the same manner and under the authority of the same statute, both were paid with federal funds, both were subject to discharge in the same manner, and both fell within the classification of "competent help for the care of material, animals, armament, and equipment" referred to in the statute.[3]
It is one thing to say, however, that a unit administrative assistant such as Sgt. Reedy was in the general employ of the United States and quite another thing to say that at a particular time and in the performance of a given act he was acting within the scope of his employment. It is obvious from the plain wording of the statute that both federal employment and action within the scope of such employment are both conditions precedent to governmental liability, and regardless of whether the Act should be strictly or liberally construed in other aspects, it seems clear to us that before liability on the part of the Government attaches both of these conditions must be strictly met. See in this connection the reprint of the address of Judge Leon Yankwich of California before the Judicial Conference of the Ninth Circuit delivered on June 28, 1949, and which now appears in 9 F.R.D. 143 et seq.
While we have found no case which is directly in point,[4] we are satisfied *913 that Sgt. Reedy was not acting within the scope of his employment at the time of this accident. In taking up this problem, it must be kept in mind that the Government's tort liability is strictly limited by the terms of the Tort Claims Act and cannot be extended beyond those terms; further, the Government acts only through agents whose powers are defined by statute or regulation and can be bound by the acts of its agents only in cases where the latter are acting within the scope of the authority actually conferred upon them; such authority cannot be extended by custom, usage or estoppel; nor is the mere fact that the Government may derive some benefit from the act performed sufficient to impose liability upon it with respect to a tort committed in the performance of such act. The principles just stated were well expressed by Judge Goodman in his opinion in Cannon v. U. S., D.C.Cal., 84 F. Supp. 820, wherein it was said:
"In waiving its sovereign immunity and consenting to be sued, the United States fixed and bounded the area of its liability. And its liability as so fixed, cannot, under any equitable or quasi-equitable theory, be extended beyond the stated limits. By this statute, the United States consents to be sued (1) in cases of negligence of employees `while acting within the scope of his office or employment' and then only (2) if besides, the circumstances are such that a private person would be liable under the law of the place where the act or omission of the employee occurred. * * *
"There is no question but that the Government of the United States acts only through its agents with power delegated and defined by statute or regulation, which all who deal with such persons are presumed to know. The United States can be bound only by agents acting within the scope of the authority delegated to them. * * *
"Some point is also made that the services extended to plaintiff were in a sense for the benefit of the government * * *. However there is no known doctrine by which responsibility or liability is imposed upon the United States because of any benefit to it, nor does responsibility ensue as a result of estoppel, or like equitable theory.
"Since the officers and employees of the United States here clearly and admittedly acted beyond the scope of their authority, there can be no liability under the Federal Tort Claims Act. * * *" 84 F. Supp. at pages 821-823[5].
The duties of Sgt. Reedy as unit administrative assistant were prescribed by National Guard Bureau Circular No. 4,[6] issued January 23, 1950; they were *914 almost entirely clerical and were to be performed in and around the armory at Jonesboro.
Said duties did not include the transportation of property to and from Little Rock. The delineation of his duties which has been set forth in the preceding footnote is quite a detailed one and had it been intended for him to transport property it would seem that such duty would have been specifically listed; under the circumstances we feel that its omission is significant, especially in view of the fact that paragraph 4b of the National Guard Bureau Circular above mentioned which prescribed the duties of the unit caretaker required the latter to be responsible "for the receipt, care, maintenance and repair of unit equipment" and to "perform such clerical and stock-handling duties as may be necessary to receive T/O&E equipment for the unit during the absence of supply personnel". Moreover, while Reedy's duties in connection with the preparation of issue and turn-in slips might suggest the propriety of his going to Little Rock to discharge such duty, the evidence shows that in point of fact such slips were customarily prepared at Jonesboro, and that in the instances when they were prepared at Little Rock such was done by the staff of the USP & DO. It does not appear that the performance of any duties entrusted to Sgt. Reedy necessitated his going to Little Rock on the occasion in question; on the other hand, it seems that the purpose of his going was, at least primarily, simply to lighten Sgt. Taylor's task by relieving him from time to time at the wheel of the truck.
We do not overlook the fact that Lt. Col. McDaniel, Assistant Adjutant General of the State of Arkansas, testified that the duties of an administrative assistant and caretaker customarily overlapped in practice; this, however, was by reason of usage and custom upon which, as we have pointed out, liability on the part of the Government can not be predicated. We are convinced that before a federal employee can be considered as acting within the scope of his employment, as that phrase is used in the statute, he must be performing the task which he was employed to do and not some other task the performance of which was the proper concern of some other employee.
Taking up now the question of whether or not the contributory negligence of Mr. Watt should be imputed to Mrs. Watt, the law is well settled that the negligence of the driver of a motor vehicle will be imputed to the owner thereof who is riding in the car at the time of an accident where the relationship of principal and agent or master and servant exists between such owner and driver, or where the owner has the right to control and direct the driver with respect to the operation of the vehicle. In 60 C.J.S., Motor Vehicles, § 428, page 1054, the rule is stated as follows:
"Where the owner is present, but not driving, and the car is not subject to his control, he is not liable; where he has intrusted the operation of the car to an apparently competent driver, he is not liable for his failure to direct the driver or to exercise the same degree of diligence required of a driver. On the other hand, where he is present and controlling its operation by another, or where he is present and has the *915 right and authority to control its operation if he desires to do so, and tacitly consents to the manner in which it is operated, the negligence of the driver may be imputed to him, on the ground that in such circumstances the relation of principal and agent or master and servant exists between them. The same rule applies where the owner is present and the automobile is being operated in and about the execution of the business or pleasure of the owner, in which case the doctrine of respondeat superior applies, and where the owner is present and engaged in a joint enterprise with the driver, * * *."
While the relationship of principal and agent or of master and servant, and the existence of a right to control the driver in the operation of the vehicle are not established as a matter of law by the mere presence of the owner in the vehicle at the time of the accident, such presence creates an inference that he has the right to control and direct the driver or that the latter is his agent or servant. See 60 C.J.S., Motor Vehicles, § 428, pages 1053-1054; 5 Am.Jur. "Automobiles", pages 783-784; and annotation entitled, "Owner's presence in automobile operated by another as affecting former's right or liability", 147 A.L.R. 960 et seq.
The Supreme Court of Arkansas has considered the effect of the owner's presence in the vehicle at the time of the accident in Wisconsin & Arkansas Lumber Co. v. Brady, 157 Ark. 449, 248 S.W. 278, and in Johnson v. Newman, 168 Ark. 836, 271 S.W. 705, in both of which cases it was held that the presence of the owner in a car driven by his wife raised a jury issue as to whether or not the negligence of the latter should be imputed to the former. More recently in Debin v. Texas Co., 190 Ark. 849, 81 S.W.2d 935, where a bailee of a motor vehicle permitted a fifteen year old boy to drive, an instruction was approved which told the jury that if the boy was guilty of negligence, the same would be imputed to the bailee, the latter being present in the vehicle and there apparently being no question of his right to control and direct the driver; and in Schuback v. Traicoff, 214 Ark. 375, 216 S.W.2d 395, the Court approved an instruction to the effect that if the wife of the owner of a truck, in which the wife was riding at the time of the accident, had procured the truck to perform a service for her husband, and had secured the services of her sister in driving the truck in order to perform such mission, the negligence of the sister would be imputed to the wife.
Wisconsin & Arkansas Lumber Co. v. Brady, supra, involved a crossing collision between appellant's train and an automobile owned and occupied by appellee, Hosea Brady, and which was being driven by his wife at the time of the accident, he occupying the front seat with her; the trial court told the jury, among other things, that if it found that the employees of appellant were negligent, and that if it found that Hosea Brady was not negligent, he would be entitled to recover. This instruction was held erroneous as leaving out of account the negligence, if any, of Brady's wife as a defense to his claim. The Court said:
"This instruction was erroneous because it ignored the negligence of the wife as a defense to the action of Hosea Brady for the injury to the automobile. Hosea Brady owned the automobile, and was in no sense a guest of his wife, so he had control, along with his wife, over the movements of the car. The negligence of Mrs. Brady, if any, therefore, was imputable to Hosea Brady, and should have been taken into account, just as his own negligence, if any, in determining whether there was liability on the part of appellants for damage to the car." 157 Ark. 455, 248 S.W. 278, 280.
In Johnson v. Newman, supra, the trial court instructed a verdict in favor of the defendant husband who at the time of the accident was present in his car which was being driven by his wife. The Supreme Court reversed the judgment *916 on the ground that there was substantial evidence to take to the jury the issue of the husband's own negligence in failing to control his wife in the operation of the vehicle and likewise the issue of imputed negligence upon the theory that the wife was the husband's agent. In the latter connection it was said:
"In the next place, we are of the opinion that there was sufficient evidence to justify a submission of the issue of appellee's responsibility on the theory that his wife, while driving the car, was acting as his agent. This court has refused to accept the so-called `family purpose' doctrine as a basis of liability on account of automobile collisions. Norton v. Hall, 149 Ark. 428, 232 S.W. 934, 19 A.L.R. 384; Volentine v. Wyatt, 164 Ark. 172, 261 S.W. 308. We have also discarded the doctrine of imputed negligence (Carter v. Brown, supra, [136 Ark. 23, 206 S.W. 71]; Miller v. Fort Smith Light and Traction Co., 136 Ark. 272, 206 S.W. 329; Pine Bluff Co. v. Whitlaw, supra [147 Ark. 152, 227 S.W. 13]; Itzkowitz v. P. H. Ruebel & Co., 158 Ark. 454, 250 S.W. 535) and the common-law liability of the husband for torts of the wife has been eliminated by statute (Bourland v. Baker, 141 Ark. 280, 216 S.W. 707, 20 A.L.R. 525) but we have not departed from the elemental principles of law of agency in determining the question of liability for automobile accidents. The doctrine of respondeat superior still obtains. In Norton v. Hall, supra, we said: `In other words, we reject the so-called "family purpose" doctrine as stated by some of the courts in its broadest sense, though we do not mean to hold that there may not be circumstances under which it would be a question of fact for the jury to determine whether the person so operating the car was the agent of the head of the family or was agent of the particular member or members of the family for whose pleasure and benefit the car was then used.' In Wisconsin & Arkansas Lumber Co. v. Brady, supra, we held that the husband, who was riding in his own car which his wife was driving, was responsible for the negligence of his wife on the theory that she was, under those circumstances, acting as his agent in the operation of the car. Why should not the doctrine of respondeat superior apply under such circumstances? If the owner of a car in which he is riding permits some other person to operate it no matter whether it is his wife or child or friend there is no reason why the relation of principal and agent should not be held to be subsisting between them so as to make the owner, as the principal, responsible for the negligent act of the driver as his agent. The question merely involves the application of elemental principles of law on this subject, and we are of the opinion that the testimony in the case is sufficient to call for a submission of the issue as to liability of appellee on account of the negligence of his wife, as his agent as well as his own negligence, in controlling or failing to control the operation of the car. Of course, we express no opinion on the weight of the evidence further than to say that it is legally sufficient to justify a submission of the issues in regard to negligence." 168 Ark. at pages 840-841, 271 S.W. at page 707.
In view of the foregoing principles, and particularly in the light of the holdings in Arkansas & Wisconsin Lumber Co. v. Brady and Newman v. Johnson, we are satisfied that under the evidence in the instant case the negligence of Mr. Watt should be imputed to Mrs. Watt. The testimony before us is to the effect that the automobile belonged to Mrs. Watt, that she knew how to drive a car and made a practice of driving this one for short distances in the neighborhood of the family home in Tennessee, although when long trips *917 were made, her husband did the driving; and as we have heretofore found, the purpose of the trip from Tennessee to Newport was to visit Mrs. Watt's brother; thus, it seems to us that the mission from which Mr. and Mrs. Watt were returning when the accident occurred was actually the mission of Mrs. Watt rather than that of her husband. Under such circumstances we are convinced that Mr. Watt in driving the car was acting as the agent of his wife, and that she had the right to control and direct him in the operation of her car; that she may not in fact have done so is immaterial. Not only does the testimony which we have heard justify the inference that Mr. Watt was his wife's agent and subject to her control, but there is no evidence from which a contrary conclusion can be drawn; in the light of this evidence to hold that Mrs. Watt had no right to control the operation of her own car while it was being driven on a mission of hers would, to our mind, be nothing short of arbitrary, and such a holding could not, in our opinion, be justified in the light of the Arkansas decisions which have been discussed. The only basis, as we see it, upon which it could be said that Mrs. Watt did not have the right to control the operation of her automobile is the old proposition that the husband is the head of the household, and that his wife has no right to control him. That proposition has long been subjected to criticism, and whatever basis in fact it may have had when it was originally formulated in the days when a married woman held no separate property and was herself considered in a sense as a chattel of the husband, it is now, in mosts cases at least, no more than a fiction and has little, if any, place in the modern world of emancipated womanhood. Moreover, it is significant to note that the Court in the Brady and Johnson cases did not predicate its holdings upon the fact that the owner of the car was the husband or the "head of the house" but solely upon the fact of ownership and the presence of the owner in the car. We do not believe that any logical distinction can be drawn between a case where the husband-owner is present and the wife is driving and one where that situation is reversed.
Let judgment be entered dismissing the plaintiff's complaint with prejudice in its entirety and at the plaintiff's cost.
NOTES
[1] 28 U.S.C.A. § 1346(b), insofar as here pertinent, is as follows: "Subject to the provisions of chapter 171 of this title, the district courts, * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for * * * personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Section 2674 of the same title provides in part that: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."
[2] Some time after the accident here involved, the two jobs were again combined, and the tasks of both employees are at present performed by one man having the title of "Administrative Supply and Maintenance Technician".
[3] A complicating factor in this case is that both were also members of the Arkansas National Guard. In this connection, 32 U.S.C.A. § 42 provides that either civilians or enlisted members of the Guard may be employed as caretakers, but that "if there are as many as two caretakers in any unit, one of them shall be an enlisted man." It is well settled that members of the National Guard, as such, are not federal employees, and that the Government is not liable for their torts under the Tort Claims Act. Williams v. U. S., 10 Cir., 189 F.2d 607; Dover v. U. S., 5 Cir., 192 F.2d 431; McCranie v. U. S., 5 Cir., 199 F.2d 581. An exception to this rule exists in the case of members of the National Guard of the District of Columbia which is essentially a federal, as contrasted to a state, force. O'Toole v. U. S., 3 Cir., 206 F.2d 912.
[4] While the Duncan, Holly and Elmo cases above cited held that unit caretakers were engaged in the scope of their employment while making trips such as the one involved here, it does not follow that those decisions are applicable to unit administrative assistants as far as scope of employment is concerned.
[5] The plaintiff in the Canon case sued the Government for damages which she received as a result of the alleged negligence of certain Government physicians in an Army hospital where she had undergone surgery; it developed that she, a civilian employee at the hospital, was admitted for treatment therein upon the determination of the commanding officer of the institution that she was eligible for such treatment. This determination was found to have been erroneous, and the District Court concluded that in admitting an ineligible person to the hospital the commanding officer acted beyond the scope of his employment and that there was no liability on the part of the Government for the injuries which she received while a patient. That decision was reversed, Canon v. U. S., 9 Cir., 188 F.2d 444, on the ground that the commanding officer was specifically charged with the duty of determining who was and who was not eligible for treatment, and that in making such determination he was acting within the scope of his employment; that his conclusion was erroneous in that particular instance was deemed immaterial. While, as indicated, the decision of the district court was reversed, there was no criticism of Judge Goodman's general language, which we have quoted, and with which we agree.
[6] Sgt. Reedy's duties with respect to Government property were set forth in paragraph 3(b)2 of said circular, which was as follows: "Prepare property issue slips, requisitions, bills of lading, property lost, damaged or destroyed, shipping lists, trip tickets, dispatch records, accident reports, claims, register of serially numbered items on hand, receiving reports, consolidated memorandum receipts, inventory adjustment reports, individual clothing equipment record, consolidated reports on daily issue and use of lubricants and fuels, quarterly droppage allowances; maintain unit property records; check incoming and outgoing supplies against items listed on requisitions; invoices, and bills of lading, counting, grading or weighing articles involved; store materials in storage bins, racks, and compartments, arranging items in such manner as will facilitate taking of inventories and provide protection against dampness and deterioration; conduct such periodic inventories as may be required."
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IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-366-CR
THE STATE OF TEXAS,
APPELLANT
vs.
TERRY JOE BROWN,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY,
NO. 36,061, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING
PER CURIAM
The State seeks to appeal an order of the county court at law suppressing evidence.
Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 1992). The underlying offense is
driving while intoxicated. Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1992). We will
dismiss the appeal.
The State is entitled to appeal an order granting a motion to suppress evidence "if
jeopardy has not attached in the case." Art. 44.01(a)(5). Jeopardy attaches when a jury is
impaneled and sworn. Crist v. Bretz, 437 U.S. 28 (1978); McElwee v. State, 589 S.W.2d 455
(Tex. Crim. App. 1979). The record reflects that a jury of six persons was impaneled before the
court took up appellee's motion to suppress. While the record does not clearly reflect whether
the panel had been sworn to try this cause, the prosecutor objected to the court considering the
motion to suppress saying, "The State is objecting to hearing this Motion To Suppress at this time. Jeopardy has already attached. We have a jury waiting to hear this case
for the trial on the merits." In the absence of any basis for concluding that the prosecutor's
statement was incorrect, we will accept as true her assertion that jeopardy had attached.
Article 44.01 further provides that the State is entitled to appeal an order granting
a motion to suppress evidence "if the prosecuting attorney certifies to the trial court that the appeal
is not taken for the purpose of delay and that the evidence . . . is of substantial importance in the
case." Art. 44.01(a)(5). "Prosecuting attorney" means the criminal district attorney and not does
not include an assistant. Tex. Code Crim. Proc. Ann. art. 44.01(i) (West Supp. 1992); see State
v. Muller, 829 S.W.2d 805, 809 (Tex. Crim. App. 1992). The criminal district attorney for Hays
County did not certify that this appeal was not taken for the purpose of delay. Instead, the
certification was signed by an assistant criminal district attorney.
The State is not entitled to appeal the court's order suppressing evidence in this
cause for the reasons discussed. The appeal is dismissed.
[Before Justices Powers, Aboussie and B. A. Smith]
Dismissed
Filed: December 9, 1992
[Publish]
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596 S.W.2d 906 (1980)
Flemon V. McNEESE, Appellant,
v.
The STATE of Texas, Appellee.
No. 58738.
Court of Criminal Appeals of Texas, Panel No. 1.
April 16, 1980.
*907 Johnny D. Gabriel, Jr., San Antonio, for appellant.
Bill M. White, Dist. Atty., Ed Springer, Larry A. Catlin and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and ROBERTS and DALLY, JJ.
OPINION
DALLY, Judge.
This is an appeal from a conviction for the offense of forgery. It was alleged that the appellant with intent to harm and defraud another possessed a forged instrument with the intent to utter it. The punishment, enhanced by two prior felony convictions, is imprisonment for life.
The appellant asserts that the court erred in failing to quash the indictment, and that the evidence is insufficient to sustain the conviction because there is a fatal variance between the allegations of the indictment and the proof. The appellant also says the State failed to prove he knew the check was forged and that he had an intent to defraud another, essential elements of the offense.
The forged instrument was a check. The amount of the check stated in words was "One Hundred Twenty-Seven Dollars." The amount of the check stated in figures was "$127.90." In his motion to quash the indictment the appellant urged the "... check is therefore ambiguous and absent an innuendo averment to explain its true meaning the indictment is fatally defective and invalid." The appellant insists that his motion to quash was erroneously overruled. V.T.C.A. Business and Commerce Code, Sec. 3.118(3) provides that in construing commercial paper "Words control figures except that if the words are ambiguous figures control." The words on the check are not ambiguous and they would control as to the amount for which the check is drawn. There is no doubt that under the applicable commercial law it can be determined from the face of the check that it was drawn in the amount of One Hundred Twenty-Seven Dollars.
*908 The appellant recites and relies on Lamb v. State, 67 Tex. Crim. 474, 148 S.W. 1088 (1912). In that case the amount of the check stated in words was "Fifty Cents and 75/100 Dollars" and the amount of the check stated in figures was "$50.75." Under the present code, which was not in effect at that time, the check would be construed to be in the amount of $50.75. However, the court in that case did not discuss the applicable law of negotiable instruments but said and held that:
"The indictment contains no explanatory averments, alleging for what amount the check was intended. The statute reads that any person is guilty of forgery who, with intent to defraud, shall make any false instrument in writing, purporting to be the act of another, in such manner that the false instrument would create a pecuniary obligation, and we have puzzled our brain trying to decipher what amount this check would create a legal liability for, and in the absence of any explanation we are not able to tell. Mr. Bishop lays down the rule that, if the writing is so incomplete as to have an apparent uncertainty, the indictment must allege such extrinsic facts as will enable the court to see, if genuine, its meaning. 2 Bish.Cr.Law, 545. This instrument is so uncertain on its face, in the absence of innuendo averments alleging its true meaning that the indictment should have been quashed, and the court erred in not so doing.
"The judgment is reversed and the prosecution dismissed."
Lamb v. State, supra, appears to be in conflict with our holding in the present case, and it is therefore overruled. The rules of construction of the Business and Commerce Code are clear and they determine the issue raised by the appellant's motion to quash. No innuendo averments or allegations need be made in the indictment. The check would have created a legal obligation of $127.00.
The appellant also cites and quotes from McBride v. State, 48 Tex. Crim. 213, 88 S.W. 237 (1905), but the opinion in that case gives no more support to appellant's argument than the opinion in Lamb v. State, supra. Cf. Robinson v. State, 148 Tex. Crim. 505, 188 S.W.2d 578 (1945) and Roberts v. State, 138 Tex. Crim. 39, 133 S.W.2d 974 (1939).
The trial court did not err in overruling the appellant's motion to quash the indictment.
In his second ground of error the appellant says:
"The trial court erred in holding the evidence sufficient to sustain the conviction when there was a material and fatal variance between the instrument set out in the indictment by its tenor and the instrument offered in evidence to support such description."
In his argument under this ground of error the appellant does not argue that there is a variance between the copy of the check set out in the indictment and the check offered in evidence. Rather appellant argues that the check when presented to the complainant did not have certain marks on it that were on it when it was offered in evidence. Since the argument does not support the ground of error and the authorities cited are inappropriate to the facts argued, no error is shown. However, we will attempt to construe the argument to determine the points of objection sought to be presented by the ground of error. See Art. 40.09, Sec. 9, V.A.C.C.P.
The appellant complains that there was a purple substance, a social security number, and initials on the check offered in evidence that were not on the check when it was presented to the complainant. The complainant, a bank teller with twenty-eight years experience as a teller, asked the appellant for his identification and from that identification she wrote a social security number, the date, and her initials on the back of the check. She testified that all of the writing on the front of the check admitted in evidence was the same as when it was presented to her. But when the check *909 was exhibited to her at the trial before it was admitted in evidence, she testified the check had a purple substance on it that was not on it when presented to her by the appellant. There is testimony which explains that the purple substance on the check when it was offered and admitted in evidence was nynhydrin which is a substance placed on the check to permit the identification of latent fingerprints. There is no evidence that there is a variance between the copy of the check on the indictment and the check admitted in evidence. The purple substance used to help identify the latent fingerprints which appeared on the check when it was offered and admitted in evidence but which was not on the check when it was presented does not create a variance nor render the check inadmissible in evidence.
The appellant says that the court erroneously overruled his motion for an instructed verdict because the State failed to prove the necessary elements of forgery. The appellant contends that the evidence is insufficient to show he had knowledge the check which he presented was forged or that he had intended to defraud another. The check was drawn on an account at the Union State Bank; this was the bank where the appellant possessed and presented it to the teller. The check was a personalized check which bore the name, address and telephone number of Lorce Duhart, and it bore a signature purporting to be that of Lorce Duhart. The check was presented by the appellant to the complainant at approximately 1:00 p. m. on February 10, 1977. Lorce Duhart, who had retired after thirty years of service in the armed forces, had been an employee for eleven years at the Union State Bank. When the check was presented to the complainant she observed that it was drawn on the account of Duhart, a fellow employee whom she knew. She, thinking the appellant was a friend of Duhart's and that he knew Duhart was a bank employee, jokingly said, "I don't think I can cash this. It might be hot." The appellant appeared astonished, then asked the complainant if Duhart worked at the bank. The complainant told appellant that Duhart did work at the bank, and since the amount of the check in writing and the amount in figures did not agree, she would find Duhart and ask him about it. She went to another part of the bank and exhibited the check to Duhart. Duhart told her that he did not write the check, that it was a forgery. Duhart took a position where he could see the appellant; he had never before seen the appellant. The appellant left the teller's cage. Duhart reported to a security officer that appellant was trying to cash a forged check. While the security officer was attempting to talk with the appellant, the appellant bolted and ran.
Duhart following this incident went to his home which he had left at 6:30 a. m. that day. He found that a plate glass window had been broken and his home had been burglarized. Clothing and other belongings were scattered about his home. Some of Duhart's checks had been removed from under a box which was in the second drawer of a chest of drawers. The check which appellant presented was one that had been taken from Duhart's home earlier that same day.
The appellant possessed and presented the check which had been stolen and forged less than seven hours before it was presented at the bank. The appellant bolted and ran when a security officer at the bank attempted to ask him about the forged check. The evidence is ample to prove that appellant knew the check was forged and that he possessed it with the intent to utter it and to defraud another.
The judgment is affirmed.
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113 F.2d 352 (1940)
COMMISSIONER OF INTERNAL REVENUE
v.
PARK.
No. 7210.
Circuit Court of Appeals, Third Circuit.
June 29, 1940.
*353 Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Norman D. Keller, and S. Dee Hanson, Sp. Assts. to Atty. Gen., for petitioner.
Joseph Gilfillan, of Philadelphia, Pa., for respondent.
Before BIGGS, MARIS, and CLARK, Circuit Judges.
MARIS, Circuit Judge.
This is a petition by the Commissioner of Internal Revenue for the review of a decision of the Board of Tax Appeals. The record discloses that on December 14, 1923, the taxpayer made and delivered to his wife his demand note under seal for $150,000. The note bore interest at the yearly rate of 6% and was secured by 6,000 shares of American Stores Company stock as collateral. For each of the succeeding years the petitioner paid his wife $9,000 as interest. The entire transaction took place in Pennsylvania. In computing his net income for 1932, 1933 and 1934 the taxpayer took as a deduction for each of those years $9,000 as interest paid upon an indebtedness. As authority for the deduction he relied upon Section 23(b) of the Revenue Act of 1932, c. 209, 47 Stat. 169, 179, and Section 23(b) of the Revenue Act of 1934, c. 277, 48 Stat. 680, 688, 26 U.S.C.A.Int.Rev. Acts, pages 489 and 672, both of which provide that in computing net income there shall be allowed as deductions all interest paid within the taxable year on indebtedness.
The Commissioner disallowed the deduction and determined a deficiency for each of the three years. The Board of Tax Appeals reversed the Commissioner's determination and held that the payments were allowable deductions. 38 B.T.A. 1118. Upon the present review the Commissioner argues that the demand note in question did not represent an indebtedness within the meaning of the revenue acts; that the payments sought to be deducted were not interest payments; and that the transaction was but a device for giving the appearance of interest on indebtedness to what were in reality annual gifts by the taxpayer to his wife.
Under the law of Pennsylvania the note which the taxpayer gave to his wife, being under seal, was a valid enforceable legal obligation as to which want of consideration was not a defense. Yard v. Patton, 13 Pa. 278; Balliet v. Fetter, 314 Pa. 284, 171 A. 466; Fritz' Estate, 135 Pa. Super. 463, 5 A.2d 601. It must be conceded, of course, that not every obligation is an indebtedness. Illustrations may be found in Deputy v. DuPont, 308 U.S. 488, 60 S. Ct. 363, 84 L. Ed. 416, where the obligation was to return stock in kind; Del Rio v. Prudential Ins. Co. of America, 269 N.Y. 135, 199 N.E. 32, where a premium due on a life insurance policy was held not to be an indebtedness because there was no legal binding obligation to pay it; Sharpe v. First Nat. Bank of Antigo, 220 Wis. 506, 264 N.W. 245, where a contract of guaranty was held not to create an indebtedness because the contract of guaranty created a contingent liability merely; and Lenox Realty Co. v. Hackett, 122 Conn. 143, 187 A. 895, 107 A.L.R. 1306, where it was held that a mortgage debt not contracted by the corporate owner of the realty or assumed by it, was not an indebtedness of that *354 owner within the meaning of the state income tax act.
The obligation in the present case, however, is of a different nature. It is to pay a sum certain, upon demand, to the holder of the note. In other words, it is a sum of money unconditionally owed by the maker of the note to the payee. "Indebtedness" as used in the revenue acts has been properly defined as something owed in money which one is unconditionally obligated or bound to pay, the payment of which is enforceable. Gilman v. Commissioner, 18 B.T.A. 1277, affirmed 8 Cir., 53 F.2d 47, 80 A.L.R. 209. This is the ordinary meaning of the word[1] and it squarely covers the note here involved. If Congress had intended to limit the meaning of "indebtedness" as used in Section 23(b) to that contracted for a consideration in money or money's worth it could have used the modifying phrase which it did use in Section 805 of the Revenue Act of 1932, 26 U.S.C.A.Int.Rev.Acts, p. 643.[2] Its failure to do so indicates a contrary intent.
The Commissioner contends that the meaning of the word "interest" as used in the revenue acts must be restricted to payments which one has contracted to make for the use of borrowed money. This is one meaning of the word but not its sole meaning. Mr. Justice Douglas in Deputy v. DuPont, supra [308 U.S. 488, 60 S. Ct. 368, 84 L. Ed. 416], gave the term a wider meaning when he stated that: "In the business world `interest on indebtedness' means compensation for the use or forbearance of money." Interest, according to this authoritative definition, may therefore be not only the price paid for the use of borrowed money but also that paid a creditor for his forbearing to demand the payment of money legally due. See also Klein, Federal Income Taxation, Par. 16:4. The present case falls squarely within the latter category, for the payments were made to the wife so long as she forbore to make demand upon the taxpayer for the payment of the note.
The final question for our determination is whether the transaction must be treated as what it purports to be or as a mere colorable device to screen what are in reality gifts by the husband to his wife. There is no suggestion in the stipulation of facts which formed the basis of the Board's findings and decision that the transaction was colorable or in any way other than what it appeared on its face to be, or that it was entered into to avoid taxes. We are asked by the Commissioner to conclude the contrary solely from the relationship between the parties coupled with the wife's failure to demand payment over a period of eleven years. To do so, in the absence of any other evidence than this, would be to ignore the evidence of good faith furnished by the delivery of valuable collateral. It would be to declare as a matter of law that an enforceable demand note given by a husband to his wife and not promptly demanded may not form the basis for an interest deduction even though the note is amply secured and the parties act in perfect good faith. If such an exception is to be ingrafted upon the language of Section 23 (b) it must be done by Congress, not by this court.
The decision of the Board of Tax Appeals is affirmed.
BIGGS, Circuit Judge (dissenting).
The taxpayer in 1923 gave his wife a demand note under seal. The note was in the sum of $150,000, was secured by collateral and bore "interest" at the rate of six per centum per annum. For a period of eleven years the taxpayer has paid his wife $9,000 a year allegedly for her forbearance to sue upon the note or to foreclose upon the collateral. This transaction was entered into in Pennsylvania and the majority of this court are of the opinion that because a seal imports consideration and creates an enforceable obligation under the law of Pennsylvania, in contradistinction to the laws of many of the states, the sums paid by the taxpayer to his wife were interest on indebtedness and therefore deductible under the provisions of Section 23(b) of the Revenue Acts of 1932 and 1934.[3]
*355 I must respectfully dissent from the views thus expressed by the majority since in my opinion under the tax laws of the United States the transaction does not have the significance attributed to it by the majority. I think that the sum paid annually by the taxpayer to his wife is not "interest paid * * * on indebtedness." As was stated by the Supreme Court in Deputy v. DuPont, 308 U.S. 488, 497, 60 S. Ct. 363, 368, 84 L. Ed. 416, "* * * although an indebtedness is an obligation, an obligation is not necessarily an `indebtedness' within the meaning of § 23(b). Nor are all carrying charges `interest'. In Old Colony R. Co. v. Commissioner, 284 U.S. 552, 52 S. Ct. 211, 76 L. Ed. 484, this Court had before it the meaning of the word `interest' as used in the comparable provision of the 1921 Act, 42 Stat. 227. It said, 284 U.S. at page 560, 52 S.Ct. at page 214, 76 L. Ed. 484, `* * * as respects "interest," the usual import of the term is the amount which one has contracted to pay for the use of borrowed money.' It there rejected the contention that it meant `effective interest' within the theory of accounting or that `Congress used the word having in mind any concept other than the usual, ordinary, and everyday meaning of the term.' 284 U.S. at page 561, 52 S.Ct. at page 214, 76 L. Ed. 484. It refused to assume that the Congress used the term with reference to `some esoteric concept derived from subtle and theoretic analysis,' 284 U.S. at page 561, 52 S.Ct. at page 214, 76 L. Ed. 484." See also Title Guaranty & Surety Co. v. Klein, 3 Cir., 178 F. 689, 691, 29 L.R.A.,N.S., 620; Maryland Casualty Co. v. Omaha Electric L. & P. Co., 8 Cir., 157 F. 514, 519; Westerfield v. Rafferty, D.C., 4 F.2d 590, 594; Kishi v. Humble Oil & Refining Co., 5 Cir., 10 F.2d 356; Corbett Investment Co. v. Helvering, 64 App.D.C. 121, 75 F.2d 525, 528; City of Lincoln, Neb. v. Ricketts, 8 Cir., 77 F.2d 425, 428; Baltimore & O. R. Co. v. Commissioner, 4 Cir., 78 F.2d 460, 462, 463; Dry Dock Bank v. American Life Ins. and Trust Co., 3 N.Y. 344, 355; Hayes v. Commissioner, 261 Mass. 134, 158 N.E. 539; Terbell v. Commissioner, 29 B.T.A. 44, affirmed per curiam, 2 Cir., 71 F.2d 1017; Fall River Electric Light Co. v. Commissioner, 23 B.T.A. 168. It is also the rule that it is the popular meaning of words which controls construction and meaning of a tax statute. Old Colony R. Co. v. Commissioner, supra, 284 U.S. page 560, 52 S. Ct. 211, 76 L. Ed. 484; Maillard v. Lawrence, 16 How. 251, 261, 14 L. Ed. 925; DeGanay v. Lederer, 250 U.S. 376, 381, 39 S. Ct. 524, 63 L. Ed. 1042.
Since consideration is completely lacking for the note and it is stipulated that it was "made, executed and delivered as an absolute gift * * *", the note in itself is nothing more than a promise to make a gift in the future and the sums paid annually by way of "interest" are nothing more than gifts reduced to possession year by year.
I think that the respondent has done nothing more than attempt to reallocate income within the intimate group of his family and has tried to create a new economic unit for that purpose. As was made very plain by the Supreme Court in Commissioner v. Clifford, 309 U.S. 331, 334, 60 S. Ct. 554, 84 L. Ed. 788, regardless of the particular devices used to split up income within the intimate family group, the tax gatherer must look to substance of the transactions rather than at their form. The economic conceptions in the case at bar become sheerly metaphysical if the respondent's contentions be accepted. The deduction of which the respondent seeks to avail himself is in reality a part of his own income. The wife's income is really a part of her husband's income, a gift from her husband. In my opinion it may be deducted by the respondent only as a gift. The Clifford case may be distinguished from the case at bar because Clifford retained control of the trust while in the case at bar the respondent does not have control of the note or the collateral. It should be observed, however, that the respondent retains the equitable interest in the collateral and the income from it, the latter going to that fund, the husband's income, from which the wife's stipend is paid. Though the respondent does not retain control of the note or collateral, these facts do not seem to me to be sufficient to transform an annual gift into "interest * * * on indebtedness".
The decision of the Board of Tax Appeals should be reversed and the cause remanded with directions to assess deficiencies for the taxable years in accordance with the determination of the Commissioner.
NOTES
[1] In Webster's New International Dictionary, Second Edition, indebtedness is defined as "the sum owed, debts, collectively."
[2] Sec. 805 Revenue Act 1932, c. 209, 47 Stat. 280. Deductions. "The deduction herein allowed in the case of claims against the estate, unpaid mortgages, or any indebtedness shall, when founded upon a promise or agreement, be limited to the extent that they were contracted bona fide and for an adequate and full consideration in money or money's worth."
[3] Revenue Act of 1932, c. 209, 47 Stat. 169, 179, Revenue Act of 1934, c. 277, 48 Stat. 680, 688, 26 U.S.C.A.Int.Rev.Acts, pages 489 and 672.
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113 F.2d 543 (1940)
McGEE
v.
NEE, Collector of Internal Revenue.
No. 11673.
Circuit Court of Appeals, Eighth Circuit.
July 22, 1940.
*544 John B. Gage and Albert F. Hillix, both of Kansas City, Mo., for appellant.
Carlton Fox, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and William L. Cary, Sp. Assts. to Atty. Gen., and Richard K. Phelps, Acting U. S. Atty. and Thomas A. Costolow, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for appellee.
Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.
SANBORN, Circuit Judge.
This appeal is from a judgment for the defendant (appellee) in an action brought by appellant, a taxpayer, to recover $576.11, an alleged overpayment of income taxes for the year 1936. The record in this Court consists of the complaint, the answer, the findings of fact and declarations of law and the judgment.
The taxpayer in his complaint, after stating the jurisdictional facts, alleged in substance: that he was a partner in the firm of Thomas McGee and Sons, insurance brokers, the business of which consisted in placing insurance, other than life insurance, for the customers of the firm in companies of its choosing; that the firm derived its compensation by retaining a percentage of the premium paid for the insurance; that the customers of the firm, because of their confidence in it, relied upon it to place their insurance for them; that the firm procured policies for some of its customers from the Union Indemnity Company of New Orleans, which on January 6, 1933, was placed in receivership; that thereafter the firm, at its own expense, procured reinsurance for such customers in other companies for the unexpired terms of the policies of the Union Indemnity Company, and took assignments from these customers of the unearned portions of premiums paid on policies of that company; that where liability had accrued under such policies, the firm assumed the liability and protected the customers against loss, at its own expense, taking from them assignments of their claims against the Union Indemnity Company; that the firm expended $16,419.62 for reinsurance and for the protection of its customers holding policies in the Union Indemnity Company, and in 1936 obtained from the receiver of that company, upon a claim filed by the firm under the assignments from its customers, $1,344.44 as its pro-rata share of the receivership assets; that the firm incurred the expense for reinsurance and assumption of liability "for the purpose of and in order to protect its customers, preserve the firm's business, meet its obligations as an insurance broker and retain the insurance business of all the customers affected by the insolvency of the said Union Indemnity Company"; that the net cost of furnishing reinsurance and protection, which could only have been ascertained at the end of the receivership of the Union Indemnity Company, was $15,075.18; "that this amount was an ordinary and necessary business expense of the said Thomas McGee and Sons for the year 1936 and is to be reflected in the taxable income *545 for partners of said Thomas McGee and Sons for that year; that the share of this plaintiff as a partner in Thomas McGee and Sons in this expense was $2,638.16; and that properly considering this amount in the determination of this plaintiff's income tax for the year 1936, this plaintiff has overpaid in the amount of $576.11"; that plaintiff seasonably filed a claim for refund of this amount with the Commissioner of Internal Revenue, who denied the claim; and "that the said $576.11 portion of the total tax so paid for the year 1936 was in all respects erroneously and illegally collected for the reasons hereinbefore set forth."
The defendant in his answer denied, among other things, that the expenditure set forth in the complaint was an ordinary and necessary business expense of Thomas McGee and Sons for the year 1936, and denied that the plaintiff had overpaid his income tax for that year.
A jury was waived and the case was tried to the court. The evidence is not before us. The court found the necessary jurisdictional facts, and found in general that the allegations of the complaint were true; that during the years 1933, 1934 and 1935 the firm had paid out for reinsurance for and in protection of its customers $16,419.62 in order "to hold its customers and protect the reputation of the partnership as a reliable and trustworthy insurance brokerage firm which would protect its customers", and that, "In the character of business the partnership is engaged in it is essential to financial success and continued existence that the public, including its customers, have confidence in the reliability and trustworthiness and fairness of the business organization." The court also found that in the years 1933, 1934 and 1935 the firm in its tax returns deducted, as ordinary and necessary business expenses, the amounts paid out for reinsurance and protection of its customers in those years, but that the deductions were disallowed; that in 1936, after it had received $1,344.44 in satisfaction of its claim against the Union Indemnity Company, it subtracted that amount from its total expenditures of $16,419.62, and claimed the balance, $15,075.18, as a deduction from income in 1936; that "the claim was made that the expenditures constituted business expenses"; that the deduction was again disallowed by the Commissioner; that the expenditures were ordinary and necessary expenses of the partnership; and that plaintiff had paid his income taxes as determined by the Commissioner.
The court concluded (1) that it had jurisdiction, (2) that the expenditures were "ordinary and necessary expenses in carrying on the plaintiff's business," (3) but were "not paid or incurred during the taxable year of 1936" and could therefore not be deducted from gross income in determining income tax liability for that year, and (4) that judgment should be for the defendant. Judgment was entered accordingly.
In the "Statement of Points on Which Plaintiff Intends to Rely," it is asserted that the court erred: "(1) In concluding that the expenditures in controversy were not paid or incurred during the taxable year of 1936 and may not be deducted from gross income for that taxable year. (2) In failing to hold that the excess of the amount expended for and by reason of the assignment to plaintiff by its customers of their claims against the Union Indemnity Company for unearned premiums over the amount realized and received in the year 1936 from the receiver of Union Indemnity Company by reason of such claims so assigned, constituted an allowable loss in 1936, the year finally determined. (3) In rendering judgment for the defendant based upon conclusions of law not supported or justified by the court's findings of fact."
Two issues of fact were presented by the pleadings:
1. Were the expenditures for which a deduction was sought in 1936 ordinary and necessary expenses of carrying on the business of Thomas McGee and Son?
2. Were such expenditures made in the year 1936?
The first of these issues was decided in favor of the plaintiff. The second was decided in favor of the defendant.
Section 23 of the Revenue Act of 1936, 49 Stat. 1658, 26 U.S.C.A.Int.Rev.Code § 23, so far as pertinent, provides:
"In computing net income there shall be allowed as deductions:
"(a) Expenses. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.
* * * * *
"(e) Losses by individuals. In the case of an individual, losses sustained during *546 the taxable year and not compensated for by insurance or otherwise
"(1) if incurred in trade or business; * * *."
It is clear that in the court below the taxpayer was claiming the right to a deduction under § 23(a) upon the ground that the expenditure of Thomas McGee and Sons described in the complaint constituted an ordinary and necessary expense paid or incurred during the year 1936 in carrying on its trade or business. The record does not show that the question of the applicability of § 23(e) (1) was presented to the trial court or that the taxpayer contended upon the trial that he was entitled to a deduction on account of a loss sustained during the taxable year and not compensated for by insurance or otherwise. His burden in the court below was to point to a statute permitting the deduction claimed and to show that he came within its terms.[1]
What the taxpayer now seeks is a determination by this Court that, upon the primary or evidentiary facts found by the court below, the expenditure which the taxpayer asserted in his complaint was an ordinary and necessary business expense for the year 1936, was in fact a loss not compensated for by insurance or otherwise, deductible under § 23(e) (1).
The only question with which we can concern ourselves upon this appeal is whether the facts found by the court below support its judgment. Becker v. Evens & Howard Sewer Pipe Co., 8 Cir., 70 F.2d 596, 598. We find no inconsistency between the court's findings of the evidentiary facts and its finding of the ultimate fact that the expenditures in suit constituted ordinary and necessary business expenses.[2]
But if the court's findings of evidentiary facts were insufficient to support its findings of ultimate facts, that would present nothing for review, because the findings of ultimate facts in a jury-waived case, unless shown to be unsupported by evidence or clearly erroneous in view of the evidence, are conclusive on appeal, and an appellate court cannot revise them but can only determine whether they support the judgment. Becker v. Evens & Howard Sewer Pipe Co., 8 Cir., 70 F.2d 596, 598. A trial court, in making findings of fact, is required to find only the ultimate facts. The findings should be "a clear and concise statement of the ultimate facts, and not a statement, report, or recapitulation of evidence from which such facts may be found or inferred." Anglo-American L. M. & A. Co. v. Lombard, 8 Cir., 132 F. 721, 734; Becker v. Evens & Howard Sewer Pipe Co., supra.
The ultimate fact essential to a recovery by the plaintiff under his complaint was that the deduction disallowed by the Commissioner was an ordinary and necessary business expense of the taxpayer paid or incurred in the year 1936. Botany Worsted Mills v. United States, 278 U.S. 282, 290, 49 S. Ct. 129, 73 L. Ed. 379. Compare Becker v. Evens & Howard Sewer Pipe Co., supra; St. Paul Abstract Co. v. Commissioner, 8 Cir., 32 F.2d 225, 226. The finding that the deduction disallowed consisted of business expenses paid in years other than 1936 supports the judgment for the defendant, and precludes a reversal by this Court. The judgment is presumed to be correct, and the record fails to show that it is incorrect. Compare Becker v. Evens & Howard Sewer Pipe Co., supra.
Another reason why the appellant cannot prevail on this appeal is that this Court, except under the most exceptional circumstances, will not rule upon a question *547 of law not presented to or determined by the court below.[3]
The judgment is affirmed.
NOTES
[1] White v. United States, 305 U.S. 281, 292, 59 S. Ct. 179, 83 L. Ed. 172; New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S. Ct. 788, 78 L. Ed. 1348; United States v. Donaldson Realty Co., 8 Cir., 106 F.2d 509, 515; Shapleigh Hardware Co. v. United States, 8 Cir., 81 F.2d 697; Little v. Helvering, 8 Cir., 75 F.2d 436, 439.
[2] See and compare Aitkin v. Commissioner, 12 B.T.A. 692; Louisiana Jockey Club, Inc., v. Commissioner, 13 B.T. A. 752; Pierce v. Commissioner, 18 B. T.A. 447; First National Bank v. Commissioner, 35 B.T.A. 876; Lucas v. Wofford, 5 Cir., 49 F.2d 1027; Illinois Central R. Co. v. Commissioner, 34 B.T.A. 1; Tracy v. Commissioner, 39 B.T.A. 578; Whitney v. Commissioner, 3 Cir., 73 F.2d 589; Perkins Bros. Co. v. Commissioner, 8 Cir., 78 F.2d 152; Kales v. Commissioner, 6 Cir., 101 F.2d 35, 40, 122 A.L.R. 211; Fairmont Creamery Corp. v. Helvering, 67 App.D.C. 66, 89 F.2d 810; Kornhauser v. United States, 276 U.S. 145, 48 S. Ct. 219, 72 L. Ed. 505.
[3] Virtue v. Creamery Package Mfg. Co., 227 U.S. 8, 38, 39, 33 S. Ct. 202, 57 L. Ed. 393; Duignan v. United States, 274 U.S. 195, 200, 47 S. Ct. 566, 71 L. Ed. 996; Blair v. Oesterlein Co., 275 U.S. 220, 225, 48 S. Ct. 87, 72 L. Ed. 249; Helvering v. Hormel, 8 Cir., 111 F.2d 1, 5, and cases cited; Hutchinson v. Fidelity Inv. Ass'n, 4 Cir., 106 F.2d 431, 436, and cases cited; Helvering v. Wood, 309 U.S. 344, 348, 349, 60 S. Ct. 551, 84 L. Ed. 796.
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113 F.2d 827 (1940)
HUPP MOTOR CAR CORPORATION
v.
WADSWORTH et al.
No. 8263.
Circuit Court of Appeals, Sixth Circuit.
June 5, 1940.
Fred L. Vandeveer, of Detroit, Mich. (Vandeveer, Vandeveer & Haggerty, of Detroit, Mich., on the brief), for appellant.
Carl Runge, of Detroit, Mich. (Robert S. Marx, Carl Runge, and Roy G. Holmes, all of Detroit, Mich., on the brief), for appellees.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
ALLEN, Circuit Judge.
Appeal from a judgment in favor of appellees, based on a jury verdict.
*828 Appellees, residents of California, instituted this action as sole heirs of Thomas E. Wadsworth, who was killed in an automobile accident in California on July 17, 1936. The accident was alleged to have resulted from the negligence of appellant in assembling and inspecting the automobile, manufactured by it, and involved in the accident. Wadsworth had purchased the car, which was new, about six weeks prior to the accident. Upon the day in question he, with members of his family, was driving at a speed of about 35 miles per hour, along a dry, smooth, level, cement road. The car suddenly veered to the left, almost to the white line marking the center of the road, then swerved to the right almost off the cement, back again slightly to the left and then to the right, running off the cement and crossing the oil and gravel shoulder about 10 feet wide. It then hit a heavy concrete culvert which crossed the ditch and extended about 8 inches above the level of the surface of the road. The car continued for about 45 feet and stopped in a field, turning over on one side. Wadsworth died on the same day from injuries received. Immediately after the accident it was found that the pitman arm of the steering gear, which should be held upon the ball stud of the steering drag link by a castellated nut secured by a cotter pin, was disconnected and that the nut and cotter pin were missing. One of the tires at that time was deflated, but no witness stated which tire it was. It is appellees' theory that the steering gear became disconnected and inoperative through appellant's negligent failure to insert the cotter pin, thus allowing the retaining nut gradually to work off and permit the steering gear to become disassembled. Appellant's theory is that the accident was caused by a puncture of the tire on the left front wheel. Appellant's motions for directed verdict and for judgment notwithstanding the verdict were denied.
Appellant's first contention is that the court erred in refusing to receive opinion evidence as to how an automobile which had a punctured or deflated tire on the left front wheel would act on the road. The court correctly refused to admit such evidence. There was no proof that any tire at any time was punctured, nor that there was a blowout, nor that any tire had been deflated before the accident. The proof that a tire was deflated when the car was found in the field does not show that it was deflated prior to the accident. The only evidence that the left front tire was the one deflated is presented in the testimony of a witness who did not see the car at the scene, but arrived at his conclusion by observation of a photograph of the wrecked car made in a garage eleven days after the accident. The front end of the car was then supported by a jack, and both front wheels were raised off the floor. The witness testified that the left front tire was deflated when the picture was taken. A highway patrol officer testified that he could "see distinctly" but one tire mark on the shoulder of the road when he examined the scene of the accident. From this evidence appellant seeks to establish proof sufficient to go to the jury that the allegedly deflated tire made the allegedly single track, and therefore that the deflation occurred prior to the accident. As to the admission of evidence, the law of Michigan controls. American Issue Pub. Co. v. Sloan, 6 Cir., 248 F. 251, 253; Nashua Savings Bank v. Anglo-American Land, Mortgage & Agency Co., 189 U.S. 221, 228, 23 S. Ct. 517, 47 L. Ed. 782. The testimony proffered does not exclude the existence of other tire marks, nor does it constitute substantial evidence of the existence of a deflated tire prior to the accident. It is axiomatic that a hypothetical question calling for expert opinion must be based upon the facts in evidence. This also is the law of Michigan. Appellant did not properly lay the ground for the hypothetical questions which the court refused to permit it to ask the expert. The expert could not testify as to his opinion that a deflated tire on the left front wheel caused the accident unless the evidence indicated by a substantial degree of proof that the tire was deflated before the accident occurred. Since the questions proffered embodied facts not shown in the evidence, this line of questioning was properly excluded. Mayo v. Wright, 63 Mich. 32, 29 N.W. 832; Stowell v. Standard Oil Co., 139 Mich. 18, 102 N.W. 227.
Appellant's second contention relates to statements of fact made by the court in the presence of the jury, as to what facts had or had not been proved. This contention also is without merit. If the statements were erroneous, they were cured by the instructions in which the court not only refrained from stating its opinion as to what the proof showed, but emphasized the fact that it left that question to the jury to decide.
*829 Appellant's third contention is that the court erred in instructing the jury as to the question of damages. The court did not take into consideration the expectancy of the dependents upon the possible remarriage of the widow. No objection was made to the court's charge on this point, and, under Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, it is not reviewable.
Also we think that the court's instructions as to the method of computing damages were correct. Upon this question the case is controlled by the law of California. The measure of damages in an action for tort is determined by the law of the state where the tort was committed. Quinnette v. Bisso, 5 Cir., 136 F. 825, 841, 5 L.R.A.,N.S., 303; Thompson Towing & Wrecking Ass'n v. McGregor, 6 Cir., 207 F. 209, 219; Wynne v. McCarthy, 10 Cir., 97 F.2d 964.
The applicable provision of the California Code of Civil Procedure, Section 377, is that "In every action under this and the preceding section, such damages may be given as under all the circumstances of the case, may be just." The California cases hold that under this provision the amount of the damages is for the jury to determine, and it is not required to adopt any fixed formula. Bond v. United Railroads of San Francisco, 159 Cal. 270, 113 P. 366, 48 L.R.A.,N.S., 687, Ann.Cas.1912C, 50; Dallas v. DeYoe, 53 Cal. App. 452, 200 P. 361; Herron v. Smith Bros., Inc., 116 Cal. App. 518, 2 P.2d 1012; Kawamura v. Honek, 127 Cal. App. 509, 16 P.2d 150; Myers v. San Francisco, 42 Cal. 215; Valente v. Sierra Ry. Co. of California, 158 Cal. 412, 111 P. 95. Hence no reversible error exists in the charge as to the measure of damages.
The principal question in the case is presented by appellant's contention that the District Court erred in submitting the case to the jury. It is appellees' theory that the accident was caused by the negligent failure of appellant, the manufacturer, to insert a cotter pin in the ball stud of the steering drag link to retain the nut which held the pitman arm on the ball stud, by which omission the parts of the steering mechanism were disassembled, causing the driver to lose control of the car. The pitman arm is a metal part which fits down over the ball stud in a drag link steering assembly and is held upon the ball stud by a castellated nut open at both ends. The nut is screwed upon the thread end of the ball stud to a point where it is beyond a small hole passing completely through the ball stud. This is the cotter pin hole in which a cotter pin is inserted so that the nut will not work out, and permit the pitman arm to disengage itself from the ball stud.
Four witnesses examined the automobile shortly after the accident, in the field where it finally came to rest. At that time the pitman arm was completely disconnected from the ball stud, and neither the castellated nut nor the cotter pin was in position or found in any part of the steering gear. Neither of these parts was ever located or produced in evidence.
Witnesses testified to the following circumstances: It was shown that the cotter pin hole was at least partially plugged with grease. The threads of the ball stud were in no way stripped or torn, indicating that the loss of the nut could not have been caused as contended by appellant, by the splitting or destruction of the nut when the car struck and passed over the stone culvert. The threads upon which the nut normally rested were shown to be shiny, without evidence of rust, indicating that the nut had been properly placed in position when the steering gear was assembled. The taper of the ball stud and the orifice of the pitman arm showed wear. From these facts the jury might rightfully have inferred that the pitman arm had been loose. It was testified that otherwise no wear would have been shown on the taper. Concededly, if the nut was tight, holding the ball stud closely in the socket of the pitman arm, there would be no wear. Thus substantial evidence was introduced tending to show that the pitman arm had been loose on the taper of the ball stud when the accident occurred. Two experts who examined the pitman arm and the ball stud with the naked eye, with various magnifying glasses, and in cross-section under the microscope after the ball stud had been sawed apart, testified that evidently the nut had been working loose, and stated as their opinion that no cotter pin had ever been properly inserted, if inserted at all, in the cotter pin hole.
The fact that this evidence was contradicted by certain of the witnesses does not aid the appellant. There was substantial evidence that the accident was caused as alleged by appellees. The case was properly *830 submitted to the jury, and the court did not err in denying the motion non obstante veredicto.
The judgment is affirmed.
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123 F.Supp. 599 (1954)
NYBERG
v.
MONTGOMERY WARD & CO.
No. 453.
United States District Court, W. D. Michigan, N. D.
August 12, 1954.
*600 Doyle & Doyle and Thurman B. Doyle, Menominee, Mich., for plaintiff.
Barstow & Barstow and George Barstow, and Steven G. Barstow, Menominee, Mich., and John A. Barr, Chicago, Ill., for defendant.
STARR, District Judge.
Plaintiff, a resident and citizen of Michigan, began this action in the circuit court of Menominee county, Michigan, against the defendant, an Illinois corporation admitted to do business in Michigan, which operates one of its retail stores in the city of Menominee in Menominee county. The plaintiff sought to recover damages for her personal injuries sustained in an explosion, which she claims resulted from the defendant's alleged negligence in connection with the disconnecting of a hot-water tank from a cook stove in her home. The action was removed to this court by the defendant on the basis of the diversity of citizenship of the parties, 28 U.S.C.A. § 1441 et seq., and was tried before the court without a jury. On February 4, 1954, the court filed a written opinion, 125 F.Supp. 116 holding that defendant was entitled to a judgment of no cause of action, and on that date judgment was accordingly entered in its favor.
Plaintiff did not at any time prior to the entry of judgment move to remand the action to the circuit court or in any manner question the jurisdiction of this court on removal. In fact, in a pretrial brief plaintiff's counsel in effect admitted that this court had jurisdiction of the parties and the subject matter of the action. *601 However, on March 12, 1954, subsequent to the entry of judgment in defendant's favor, plaintiff filed a motion to vacate and set aside the judgment and to remand the action to the circuit court of Menominee county. She bases her motion on the contention that there was no diversity of citizenship entitling the defendant to remove the action to this court; that this court was without jurisdiction; that its judgment was void and should be set aside; and that the action should be remanded to the circuit court. In support of this contention plaintiff claims: (1) that by obtaining permission to do business as a foreign corporation in Michigan and by designating a local agent for service of process, the defendant became a domestic Michigan corporation and, therefore, that there was no diversity of citizenship; (2) that the defendant's right to sue or be sued was governed by the law applicable to a Michigan corporation; and (3) that as its claim of Federal jurisdiction is based on diversity of citizenship, the defendant by obtaining permission to do business in Michigan and by designating a local agent, waived its right under 28 U.S.C.A. § 1391(c) (§ 51 of the former Judicial Code, 28 U.S.C.A. § 112) to have the action brought in a Federal court and also waived its right of removal. The plaintiff's contentions must be considered in connection with the law of Michigan relating to foreign corporations and the applicable Federal statutes relating to venue, jurisdiction, and removal. 28 U.S.C.A. § 1332(a) (1) provides in part:
"(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $3,000 exclusive of interest and costs, and is between:
"(1) Citizens of different States".
28 U.S.C.A. § 1441(a) provides:
"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."
28 U.S.C.A. § 1391 provides in part:
"(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside. * * *
"(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes."
It is clear that the State statutes under which foreign corporations are admitted to do business in Michigan[1] were not intended to, and do not, *602 make the admitted foreign corporation a domestic Michigan corporation and a citizen of Michigan. Furthermore, Michigan law is not applicable or controlling as to Federal court venue and jurisdiction. In the case of Hinchcliffe Motors, Inc., v. Willys-Overland Motors, Inc., D.C., 30 F.Supp. 580, 584, the court said:
"The question of the jurisdiction of this court, however, must be determined with reference to the rule obtaining in federal courts and is not controlled by state statutes or decisions, Hedrick v. Canadian Pac. Ry. Co., supra (D.C., 28 F.Supp. 257), and this is true also with respect to cases removed from a state court. Goldey v. Morning News, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517; Mechanical Appliance Co. v. Castleman, 215 U.S. 437, 30 S.Ct. 125, 54 L.Ed. 272."
In support of her contentions plaintiff cites Republic Motor Truck Co. v. Buda Co., 212 Mich. 55, 179 N.W. 474. While the State circuit court in that case refused to permit removal to the Federal court, the Supreme Court of Michigan, on appeal from an order denying the defendant's application to dismiss the action for want of jurisdiction, apparently considered that the question of removal was not directly involved, as it held that the Federal court, if appealed to, was the final arbiter of the question of removal regardless of what the State court might hold. In that case the Supreme Court said, 212 Mich. at page 62, 179 N.W. at page 477:
"The federal authorities govern the question of removal, and the federal courts hold on such applications that corporations are conclusively presumed to be residents of the state in which they are created, and domestication elsewhere under laws there so authorizing is apparently not recognized as changing their residence for purposes of litigation."
Furthermore, it is well established that the right of a foreign corporation to resort to a Federal court in the State where the corporation is doing business cannot be abridged by the State law. In Terral v. Burke Construction Company, 257 U.S. 529, 532, 42 S.Ct. 188, 189, 66 L.Ed. 352, the Supreme Court said:
"The principle established by the more recent decisions of this court is that a state may not, in imposing conditions upon the privilege of a foreign corporation's doing business in the state, exact from it a waiver of the exercise of its constitutional right to resort to the federal courts, or thereafter withdraw the privilege of doing business because of its exercise of such right, whether waived in advance or not."
In Martin's Administrator v. Baltimore and Ohio Railroad Company, 151 U.S. 673, 684, 14 S.Ct. 533, 537, 38 L.Ed. 311, the court said:
"The Baltimore & Ohio Railroad Company, not being a corporation of West Virginia, but only a corporation of Maryland, licensed by West Virginia to act as such within its territory, and liable to be sued in its courts, had the right, under the constitution and laws of the United States, when so sued by a citizen of this state, to remove the suit into the circuit court of the United States, and could not have been deprived of that right by any provision in the statutes of the state."
The test as to whether the defendant was entitled to remove the present civil action from the State court to this Federal district court, is whether *603 this court would have had original jurisdiction of the action. 28 U.S.C.A. § 1441(a). In considering the question of jurisdiction and removal in Central States Co-ops v. Watson Bros. Transp. Co., 7 Cir., 165 F.2d 392, the court said at page 394:
"Jurisdiction cannot be waived; neither can it be acquired by assent of the parties. * * * Jurisdiction is subject to the same test where the case is before the court on removal from a State court as though it had been originally brought in the Federal court."
In Sabin v. Home Owners' Loan Corporation, 10 Cir., 147 F.2d 653, 655, 656, the court said:
"The test for determining the removability of an action is whether the United States Court might have exercised original jurisdiction." (See authorities cited.)
In Southern Railway Company v. Allison, 190 U.S. 326, 23 S.Ct. 713, 47 L.Ed. 1078, the plaintiff began suit in the State court of North Carolina against the railway company, a Virginia corporation. The State statute of North Carolina provided that a foreign railroad company which desired to own property or carry on business in that State "shall become a domestic corporation of the state of North Carolina by filing in the office of the secretary of state a copy of its charter". Pub.Acts 1899, c. 62. The State statute further provided: "It may sue and be sued in all courts of this state and shall be subject to the jurisdiction of the courts of this state as fully as if such corporation were originally created under the laws of the state of North Carolina." The defendant railway company, which had complied with the State statute, removed the action to the United States circuit court. When the State supreme court refused to recognize the validity of the order of removal, an appeal was taken to the Supreme Court of the United States. In reversing the State court, the Supreme Court said, 190 U.S. 337, 23 S.Ct. 717:
"A corporation may be made what is termed a domestic corporation, or in form a domestic corporation, of a state in compliance with the legislation thereof, by filing a copy of its charter and by-laws with the secretary of state, yet such fact does not affect the character of the original corporation. It does not thereby become a citizen of the state in which a copy of its charter is filed, so far as to affect the jurisdiction of the Federal courts upon a question of diverse citizenship."
See also Madisonville Traction Company v. Saint Bernard Mining Company, 196 U.S. 239, 244, 25 S.Ct. 251, 49 L.Ed. 462; Baltimore and Ohio Railroad Company v. Koontz, 104 U.S. 5, 10-13, 26 L.Ed. 643; Peters v. Standard Oil Co. of Texas, 5 Cir., 174 F.2d 162; Miller v. Southern Bell Telephone & Telegraph Co., 4 Cir., 279 F. 806, 808, 809; Thomas v. South Butte Mining Co., 9 Cir., 230 F. 968; Jakubowski v. Central R. Co. of New Jersey, D.C., 88 F. Supp. 258; Gorgone v. Maryland Casualty Co., D.C., 32 F.Supp. 150; Silverstein v. Pacific Mut. Life Ins. Co. of California, D.C., 16 F.Supp. 315; Earle C. Anthony, Inc., v. National Broadcasting Co., Inc., D.C., 8 F.Supp. 346; Hayat Carpet Cleaning Co., Inc., v. Northern Assur. Co., Limited, of London, D.C., 2 F.Supp. 469.
The plaintiff in the present case relies on Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, as sustaining her contention that by qualifying to do business in Michigan as a foreign corporation and appointing a resident agent, the defendant became a domestic Michigan corporation and a citizen of Michigan, and, therefore, that there was no diversity of citizenship entitling it to removal. In the Neirbo case the defendant, a Delaware corporation, in compliance with the New York State General Corporation Law, McK.Consol.Laws, c. 23, had designated one Brown as its agent and person upon whom summons could be served in that State. On the *604 basis of diversity of citizenship the plaintiff began suit against the defendant in the United States District Court for the Southern District of New York. As stated in the opinion, 308 U.S. 167, 60 S.Ct. 154, the suit was not brought "`in the district of the residence of either the plaintiff or the defendant.' (§ 51 of the Judicial Code, Act of March 3, 1887, 24 Stat. 552, as corrected by Act of August 13, 1888, 25 Stat. 433, 28 U.S.C. § 112.[2])" In reversing the court of appeals' affirmance of the district court's order setting aside the service of process on defendant and dismissing the complaint, the Supreme Court in its majority opinion said, 308 U.S. at pages 167-175, 60 S.Ct. at page 154:
"The sole question in the case is whether § 51 is satisfied by the designation by a foreign corporation of an agent for service of process, in conformity with the law of a state in which suit is brought against it in one of the federal courts for that state. * * *
"Section 51 `merely accords to the defendant a personal privilege respecting the venue, or place of suit, which he may assert, or may waive, at his election.' Commercial [Casualty] Ins. Co. v. [Consolidated] Stone Co., 278 U.S. 177, 179, 49 S.Ct. 98, 99, 73 L.Ed. 252. * * *
"It took half a century of litigation in this Court finally to confer on a corporation, through the use of a fiction, citizenship in the chartering state for jurisdictional purposes. Compare Lafayette Ins. Co. v. French, 18 How. 404, 15 L.Ed. 451 with Hope Ins. Co. v. Boardman, 5 Cranch 57, 3 L.Ed. 36. Throughout, the mode of thought was metaphorical. The classic doctrine was that a corporation `must dwell in the place of its creation, and cannot migrate to another sovereignty.' Bank of Augusta v. Earle, 13 Pet. 519, 588, 10 L.Ed. 274. Logically applied, this theory of non-migration prevented suit in a non-chartering state, for the corporation could not be there. And such was the practice of the circuit courts until the opinion of Chief Justice Waite in Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853, displaced metaphor with common sense. * * * The fact that corporations did do business outside their originating bounds made intolerable their immunity from suit in the states of their activities. And so they were required by legislatures to designate agents for service of process in return for the privilege of doing local business. That service upon such an agent, in conformity with a valid state statute, constituted consent to be sued in the federal court and thereby supplanted the immunity as to venue, was the rationale of Schollenberger's case. * * *
"Other courts have adhered to the practice established by Schollenberger's case. We deem this practice sound, and it controls the present case. * * *
"In finding an actual consent by Bethlehem to be sued in the courts of New York, federal as well as state, we are not subjecting federal procedure to the requirements of New York law. We are recognizing that `state legislation and consent of parties may bring about a state of facts which will authorize the courts of the United States to take cognizance of a case.' Ex parte Schollenberger, supra, 96 U.S. at page 377, 24 L.Ed. 853."
*605 It seems obvious that the plaintiff in the present case has confused venue with jurisdiction. The Neirbo case was begun, on the basis of diversity of citizenship, in a Federal court in a district in which neither the plaintiff nor the defendant resided, and no question of removal from a State court was involved. The sole question decided was that of venue; that is, the Supreme Court held that the defendant, a foreign corporation, by the appointment of a resident agent in New York upon whom process could be served, had thereby consented to be sued in the Federal district court in New York, and had waived the Federal venue requirement that suit be brought only in the district of the residence of either the plaintiff or the defendant. A careful reading of the opinion in the Neirbo case clearly indicates that it does not in any way support plaintiff's contentions in the present case.
The plaintiff also cites and relies upon American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702. In that case the plaintiff, a citizen of Texas, began suit in a Texas State court against the American Fire and Casualty Company, a Florida corporation, the Indiana Lumbermens Mutual Insurance Company, an Indiana Corporation, and one Joe Reiss, a resident and citizen of Texas. The two defendant corporations, on the basis of diversity of citizenship, removed the action to the United States district court, and upon trial judgment was entered against defendant American Fire and Casualty Company. No recovery was granted as to defendants Indiana Lumbermens Mutual Insurance Company and Joe Reiss. The motion of the American Fire and Casualty Company to vacate the judgment and remand the case to the State court was denied, and the court of appeals affirmed. Certiorari was granted, and the Supreme Court reversed the appellate court and directed that the judgment be vacated and that the case be remanded to the State court. The decision was based solely on the ground that as plaintiff Finn and defendant Reiss were both citizens of Texas, Federal jurisdiction was barred, because the plaintiff did not establish a separate and independent claim or cause of action against defendant Reiss as required for removability under 28 U.S.C.A. § 1441 (c), which provides that "whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed". The Supreme Court said in part, 341 U.S. at pages 11-18, 71 S.Ct. at page 539:
"Congress has authorized removal now under § 1441(c) only when there is a separate and independent claim or cause of action. * * *
"In this case, however, the District Court would not have had original jurisdiction of the suit, as first stated in the complaint, because of the presence on each side of a citizen of Texas. 28 U.S.C. § 1332, 28 U.S.C.A. § 1332. The posture of this case even at the time of judgment also barred federal jurisdiction. A Texas citizen was and remained a party defendant. * * *
"The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation or by prior action or consent of the parties. To permit a federal trial court to enter a judgment in a case removed without right from a state court where the federal court could not have original jurisdiction of the suit even in the posture it had at the time of judgment, would by the act of the parties work a wrongful extension of federal jurisdiction and give district courts power the Congress has denied them."
It is clear that the decision of the Supreme Court in the above Finn case has no bearing whatever on the question presented by the plaintiff's motion in the present case to set aside the judgment of this court and remand the case to the circuit court of Menominee county. *606 In the present case there is diversity of citizenship, and no question regarding "a separate and independent claim or cause of action" under 28 U.S. C.A. § 1441(c) is involved.
In support of her contention that there is no diversity of citizenship in the present case entitling the defendant to remove, plaintiff also cites and relies upon Memphis and Charleston Railroad Company v. Alabama, 107 U.S. 581, 2 S.Ct. 432, 27 L.Ed. 518, decided in 1882. In that case the State of Alabama began suit against the railroad company to recover certain assessed taxes. The defendant railroad removed the action to the circuit court of the United States on the ground that as it was a citizen of Tennessee and the plaintiff was a citizen of Alabama, there was diversity of citizenship. In affirming the order of the circuit court remanding the action to the State court of Alabama, the Supreme Court said in part, 107 U.S. at pages 584, 585, 2 S.Ct. at page 435:
"The whole (State legislative) act, taken together, manifests the understanding and intention of the legislature of Alabama that the corporation, which was thereby granted a right of way to construct through this state a railroad, * * * was and should be in law a corporation of the state of Alabama, although having one and the same organization with the corporation of the same name previously established by the legislature of Tennessee. The subsequent acts of the state of Alabama point in the same direction, and each speaks of the company (defendant railroad) as incorporated or chartered by the legislature of Alabama. * * *
"The defendant, being a corporation of the state of Alabama, has no existence in this state as a legal entity or person, except under and by force of its incorporation by this state; and, although also incorporated in the state of Tennessee, must, as to all its doings within the state of Alabama, be considered a citizen of Alabama, which cannot sue or be sued by another citizen of Alabama in the courts of the United States."
It is clear that the decision in the Memphis and Charleston Railroad Company case has no application to or bearing upon the question of diversity of citizenship and right of removal involved in the present case. In that case the defendant railroad company was expressly chartered and made an Alabama corporation by the act of the legislature of that State. In the present case the defendant Montgomery Ward and Company, an Illinois corporation, was not granted a charter by Michigan legislative enactment; it was merely granted a license to do business in Michigan. The obtaining of a license to do business in Michigan and the appointment of a resident agent did not make it a domestic Michigan corporation and a citizen of Michigan, and did not deprive it of its right under 28 U.S.C.A. § 1441(a) to remove the action to this Federal court. The distinction between the granting of a charter and the issuance of a license to do business as a foreign corporation was pointed out in Martin's Administrator v. Baltimore and Ohio Railroad Company, 151 U.S. 673, at page 677, 14 S.Ct. 533, at page 535, 38 L.Ed. 311, where the Supreme Court said:
"A railroad corporation, created by the laws of one state, may carry on business in another, either by virtue of being created a corporation by the laws of the latter state also, as in [Indianapolis and St. Louis] Railroad Company v. Vance, 96 U.S. 450, [24 L.Ed. 752]; Memphis & Charleston Railroad Company v. Alabama, 107 U.S. 581, 2 S. Ct. 432, [27 L.Ed. 518]; Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878 [27 L.Ed. 780]; Stone v. Farmers' [Loan & Trust] Co., 116 U.S. 307, 6 S.Ct. 334, 388, 1191 [29 L.Ed. 636]; and Graham v. Boston, Hartford & Erie Railroad Co., 118 U.S. 161, 6 S.Ct. 1009 [30 L.Ed. 196]; or by virtue of a license, permisor *607 authority, granted by the laws of the latter state, to act in that state under its charter from the former state. [Baltimore and Ohio] Railroad Company v. Harris, 12 Wall. 65 [20 L.Ed. 354]; [Baltimore and Ohio] Railroad Company v. Koontz, 104 U.S. 5 [26 L.Ed. 643]; Pennsylvania Railroad Company v. St. Louis, A. & T. H. Railroad Co., 118 U.S. 290, 6 S.Ct. 1094 [30 L.Ed. 83]; Goodlett v. Louisville & Nashville Railroad Co., 122 U.S. 391, 7 S.Ct. 1254 [30 L.Ed. 1230]; Marye v. Baltimore & Ohio Railroad Co., 127 U.S. 117, 8 S.Ct. 1037 [32 L.Ed. 94]. In the first alternative, it cannot remove into the circuit court of the United States a suit brought against it in a court of the latter state by a citizen of that state, because it is a citizen of the same state with him. Memphis & Charleston Railroad Company v. Alabama, above cited. In the second alternative, it can remove such a suit, because it is a citizen of a different state from the plaintiff. [Baltimore and Ohio] Railroad Company v. Koontz, above cited."
In Patterson v. American National Red Cross, D.C., 101 F.Supp. 655, 656, the court said:
"For the purpose of jurisdiction in the courts of the United States, a corporation is to be deemed a citizen of the state creating it, and the fact that it does business in another state, or even the fact that it agreed, as a condition of being permitted to transact business in another state, that it may be sued therein, does not make it a citizen of the latter state so as to deprive the Federal Courts of jurisdiction. Louisville, Cincinnati & Charleston R. Co. v. Letson, 2 How. 497, 11 L. Ed. 353; Barrow Steamship Co. v. Kane, 170 U.S. 100, 18 S.Ct. 526, 42 L.Ed. 964; Southern R. Co. v. Allison, 190 U.S. 326, 23 S.Ct. 713, 47 L.Ed. 1078."
The law applicable to the defendant's right to remove the present action from the circuit court of Menominee county to this Federal court is well summarized in 2 Cyclopedia of Federal Procedure, 3d Ed., § 3.50, page 254, as follows:
"A corporation created by the laws of one state may carry on business in another either by virtue of being created a corporation by the laws of the latter also, or by virtue of a license, permission or authority granted by the laws of the latter state to act in that state under its charter from the former state. In the first alternative it cannot remove into a federal court an action brought against it in a court of the latter state by a citizen of that state, because it is a citizen of the same state with him. In the second alternative, it can remove the suit because it is a citizen of a different state from that of plaintiff. There is no new corporation in such case, but only added powers and privileges granted to an existing body, which remains a corporation of the state by which it was originally chartered. Removal is not precluded by the fact that defendant foreign corporation owns property or does business in the state where the action is brought or pending, and of which plaintiff is a citizen; or files its articles of incorporation with the secretary of that state, or that suit and service against it are authorized in the state; or that it has a resident agent within the state upon whom process may be served."
The plaintiff in the present case is a citizen of Michigan. The defendant Montgomery Ward and Company is an Illinois corporation admitted to do business in Michigan. Therefore, on the basis of diversity of citizenship, this district court would have had original jurisdiction of this civil action under 28 U.S.C.A. § 1332(a) (1). As this court would have had original jurisdiction of the action, it has jurisdiction upon removal *608 under 28 U.S.C.A. § 1441(a). There is no justification or legal basis for plaintiff's contention that the defendant is a domestic Michigan corporation and a citizen of Michigan and that there is no diversity of citizenship.
In summary, the court concludes: (1) that for the purposes of venue and jurisdiction, the plaintiff is a citizen of Michigan and the defendant is a citizen of Illinois; (2) that this court would have had original jurisdiction of this action, as there was diversity of citizenship and the requisite jurisdictional amount was involved; and (3) that the defendant was entitled to remove this action from the State court to this Federal district court.
Therefore, plaintiff's motion to set aside the judgment of this court and remand the action to the circuit court of Menominee county is denied. An order will be entered in accordance with this opinion. No costs are allowed in connection with this motion.
NOTES
[1] Comp.Laws Mich.1948, § 450.93, provides in part:
"Foreign corporations; certificate of authority, procedure to secure; determination of franchise fee. It shall be unlawful for any foreign corporation to carry on its business in this state, until it shall have procured from the secretary of state of this state a certificate of authority for that purpose. To procure such certificate of authority every such foreign corporation shall comply with the following provisions: It shall file in the office of the secretary of state a copy of its charter or articles certified by the proper officer of the state where such corporation shall have been incorporated, and file evidence of appointment of an agent who may be a natural person or a corporation in this state to accept service of process on behalf of such corporation, and shall pay to the secretary of state the filing and franchise fees prescribed by law."
Comp.Laws Mich.1948, § 450.94, provides in part:
"Same; certificate of authority, issuance, revocation. When such corporation has fully complied with the provisions of this act, the Michigan corporation and securities commission may issue to such corporation a certificate of authority to carry on such business in this state for 1 year, and from year to year thereafter during the period of its corporate existence so long as such corporation continues to pay its privilege fee and to otherwise comply with the laws of this state".
[2] Section 112 reads in part: "Except as provided in * * * sections 113 to 118 of this title, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."
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596 S.W.2d 565 (1980)
Robert HALL et al., Appellants,
v.
Ira DORSEY et al., Appellees.
No. 17583.
Court of Civil Appeals of Texas, Houston (1st Dist.).
January 31, 1980.
Rehearing Denied March 6, 1980.
*567 Lawrence, Thornton, Payne & Watson, C. J. Kling, Bryan, for appellants.
Joe Falco, Jr., Navasota, Roger Knight, Jr., Madisonville, Cayetano (Tom) Zarate, Jr., Joe S. Maida, Emmett Moore, Denton E. Ragland, Jr., Houston, for appellees.
PEDEN, Justice.
Robert Hall and Jimmy Hall appeal from a judgment rendered against them as defendants in a personal injury and wrongful death action brought as a result of a rear-end collision. The appellants urge sixty-two points of error, but the principal question presented is whether the denial of their motion for a continuance constituted reversible error. We affirm.
On November 3, 1978, Ira Dorsey, Mae Ester Dorsey, Tom Spearman, Edna Mable, and Walter Webber were riding in a Ford car driven by Mr. Dorsey when it was struck from behind by a Pontiac driven by Jimmy Hall. Robert Hall, owner of the Pontiac, was not present. Mr. and Mrs. Dorsey, Mr. Spearman, and Mr. Webber allegedly sustained injuries as a result of the collision and were hospitalized. Mrs. Mable died about thirty minutes after the accident, and Mr. Webber died six days later.
In December, 1978, Mr. and Mrs. Dorsey, Mr. Spearman, and the surviving brothers and sisters of Mrs. Mable filed cause number 23,010 against the appellants in the district court of Grimes County. The defendants filed only a general denial. On March 7, 1979, the plaintiffs filed an amended petition joining as a defendant Millers Casualty Insurance Company, the Dorseys' insurer, alleging that Millers was liable to the Dorseys under underinsured motorists coverage in their policy. On March 15, Ammie M. Kinch, the surviving daughter of Walter Webber, intervened in cause 23,010. At plaintiffs' request, the case was set for a jury trial on May 8, 1979.
On March 21, Gloria Hutchison and eight others, all heirs of Edna Mable, filed suit number 23,100 in the same court against Jimmy Hall.
When cause 23,010 was called for trial on May 8, the plaintiffs moved to consolidate it with cause 23,100. Although notice of the motion had not been given to the Hutchison plaintiffs or to the defendants, the trial court consolidated the two suits under the number 23,010. Immediately thereafter, the consolidated cause was called for trial, despite the absence of the Hutchison plaintiffs and their attorney, Mr. Maida.[1] At that time, the Dorsey plaintiffs offered to settle their case for $20,000, which was within the limits of Robert Hall's insurance policy. This offer was neither refused nor explicitly accepted. Appellants then announced not ready and moved for a continuance, which was denied.
The court next granted leave to intervene to James A. Webber, Walter Webber's surviving son. Appellants moved to join as involuntary parties plaintiff Ben Britt and Leo Charles Frede, alleged to be the driver and passenger of a truck also said to have been involved in the collision. The trial judge overruled this motion "because of *568 undue delay in filing said motion in waiting till the date of the trial to present same."
Appellants again asked for a continuance, and it was again denied. At that point, their attorney stated:
Your Honor, at this time then on behalf of Robert Hall and Jimmy Hall, Defendants in this consolidated cause, I would tender into the Registry of the Court the policy limits of the insurance policy that was owned by Robert Hall, those policy limits being twenty thousand dollars, and would submit that sum of money to the Court for division among the several Plaintiffs.
Defendant Millers Casualty then tendered into the registry of the court its additional $20,000. Finally, the parties present stipulated that there was only $40,000 of coverage offered by the Hall defendants and by Millers Casualty and that "[r]egardless of the action of the trial court in awarding damages, in no event [would] the plaintiffs seek to recover more than forty thousand dollars in damages aggregately or collectively.
The court then proceeded, without a jury, to hear evidence and argument of counsel as to the medical and funeral expenses incurred by the plaintiffs. Depositions of the defendants were also introduced. When all parties had rested, the court announced its judgment. Mrs. Mable's brothers and sisters were found to have no standing to sue, and the court ordered that they take nothing from the defendants. The $40,000 before the court was apportioned among the plaintiffs as follows: $19,000 to Ira Dorsey, $5,000 to Mae Ester Dorsey, $4,000 to Tom Spearman, $5,000 to the Hutchison plaintiffs on behalf of Edna Mable, and $7,000 to the intervenors on behalf of Walter Webber. Only Robert and Jimmy Hall have appealed from the judgment.
The appellants assert in their sixty-first point of error that the trial court erred and abused its discretion in overruling their motion for a continuance.
The motion alleged:
1. That this suit arose out of an automobile collision, and that the vehicles involved included a pickup truck occupied by Ben Britt and Leo Charles Frede; a Ford car occupied by Ira and Mae Esther Dorsey, Tom Spearman, Edna Mable, and Walter Webber; and a Pontiac occupied by defendant Jimmy Hall.
2. That the Dorseys and Spearman were plaintiffs in cause 23,010, and that a daughter of Walter Webber, deceased, was intervenor in that cause. Certain other persons (named) were plaintiffs in cause 23,010 and were alleged to be heirs of Edna Mable, deceased.
3. "That Leo Charles Frede and Ben Britt are proper, necessary, and indispensable parties."
4. (we omit a complaint that was immediately satisfied)
5. "That no notice has been given of the proposed consolidation of Cause No. 23,010 and Cause No. 23,100."
6. That the plaintiffs in Cause No. 23,010 (relatives of Edna Mable, deceased) and their attorney of record, Joe Maida, were not present in the courtroom, did not consent to the consolidation, and made no announcement of ready for trial.
7. That the defendants, by and through their attorney of record, had no notice that the consolidated cause would be called for trial.
No record of the hearing on the motion for continuance is before this court for review. After the motion for continuance had been overruled, counsel for the defendants asked permission to join as involuntary plaintiffs Mr. Britt and Mr. Frede. He said they were the passenger and the driver of "the third vehicle involved in the collision" and were necessary, proper, and indispensable parties in that in their absence from this suit complete relief would not be afforded to the defendants; they would be exposed "to a possibility of a multiplicity of lawsuits."
The trial judge stated that he overruled the motion because the court's file showed *569 undue delay in waiting until the date of the trial to file the motion. Appellants' counsel pointed out that cause 23,010 was filed on December 6, 1978, his answer was filed on January 2, 1979, and the trial date was May 8, 1979; he argued that his motion to join was timely filed.
Rule 251, Texas Rules of Civil Procedure, provides: "No application for a continuance shall be . . . granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law."
In our case the trial judge ordered consolidation of all of the claims of injury and death of those who were in the Ford car that was struck by the Hall Pontiac. The defendants did not allege in their motion for continuance that they would be harmed by the consolidation or by the trial of the consolidated cause without notice, and the statement of facts demonstrates (as we will show) that they were not harmed.
Rule 72, Tex.R.Civ.Proc., provides that whenever any party files a motion he must deliver or mail a copy to the adverse party, and his attorney must certify in writing on the filed motion that he has complied with the Rule. In addition, Rule 21a provides that "[i]f the time of service is not elsewhere prescribed, the adverse party is entitled to three day's notice of a motion." Finally, Rule 245, Tex.R.Civ.Proc., provides for setting of contested cases for trial "with reasonable notice of not less than 10 days to the parties."
There is no question but that in this case these Rules were violated and that it was error to consolidate the two suits without notice to the appellants and to proceed to trial immediately on the consolidated cause. However, we fail to see how the appellants were harmed. They were already present in the courtroom with their attorney, presumably ready to proceed to trial in Cause No. 23,010. The missing Hutchison plaintiffs put on no evidence and obviously did not participate in the trial in any way. If anything, consolidation was helpful to the appellants, especially in view of the settlement, as it resulted in the plaintiffs in Cause No. 23,100 being included in and bound by the final judgment. The violation of the Rules resulted in no harm to the appellants.
Appellants are also unable to complain of the absence of the plaintiffs in Cause 23,100, the lack of their consent to consolidation, or the lack of their consent to trial, without a showing that the resulting error, if any, injuriously affected the appellants. Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (Tex.1973); 4 Tex.Jur.2d Rev., Part 2, Appeal & ErrorCivil Cases § 680. We have noted that those plaintiffs have not appealed from the trial court's judgment.
We next consider the remaining item in the motion for continuance: "That Leo Charles Frede and Ben Britt are proper, necessary, and indispensable parties." The appellants base their claim that Frede and Britt were necessary or indispensable parties on subdivision (a) of Rule 39, Texas Rules of Civil Procedure. As amended in 1971, it provides in pertinent part:
A person who is subject to service of process shall be joined as a party in the action if . . . he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may . . . leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.
There is nothing in the record to indicate whether Mr. Britt or Mr. Frede is subject to service of process and nothing to show whether either of them is asserting a claim against the appellants as a result of the collision. Rule 39, as amended, speaks of persons who claim an interest, not of persons who only have an interest. Chief Justice Guittard of the Dallas Court of Civil Appeals pointed out in In re Estate of *570 O'Hara, 549 S.W.2d 233, 237 (Tex.Civ.App. 1977, no writ):
[M]ere assertion that someone has a potential claim does not establish that the alleged claimant must be joined before the action can proceed. Neither will such an unsupported assertion suffice on appeal to require that the result of the proceeding in the trial court be undone. The court must examine the potential basis of the claim to determine whether, as a practical matter, the absent persons have interests in the subject matter . .
The only indication regarding the nature of the potential claims of Mr. Britt and Mr. Frede is in the form of a statement by appellants' counsel at trial and a sentence in appellants' brief on this appeal. In moving at trial to join them as involuntary plaintiffs, counsel said Mr. Frede and Mr. Britt were "the driver and occupant of the third vehicle involved in this collision." A similar unchallenged statement appears in the brief, so it will be accepted as true under Rule 419; but there is no proof as to the nature of their involvement or whether either of them was damaged.
Robert Hall's insurance policy, which was admitted as an exhibit at trial, shows that his bodily injury liability coverage was limited to $20,000 for all claims arising out of a single occurrence. That $20,000 has been awarded to the appellees in this case, so that if Mr. Britt or Mr. Frede should now bring suit against the appellants, the appellants might be personally liable for any damages that might be awarded. It does not appear to us that simply having to pay more money as a result of the same act of negligence means that one is incurring the kind of multiple obligations that Rule 39 is designed to prevent. Even if Mr. Britt and Mr. Frede had been joined in this suit, they might not have settled for a share of the offered $20,000, and the appellants would have faced the same possibility of risking their own funds. In fact, until the defendants in this suit tendered their respective $20,000 and obtained a stipulation limiting the plaintiffs' claims, they were potentially liable for much more under the plaintiffs' pleadings.
It might be argued that the multiple obligation the appellants may incur lies in the additional parties to whom they may now be liable, that is, that multiple obligations are the same as obligations to multiple parties. Such is not the case. Multiple obligations refer to payment of the same claim to more than one person, as for example when joint payees on a note bring separate suits against the payor and both obtain judgment on the same claim. In this case, any claims that Mr. Britt or Mr. Frede might have against the appellants would be wholly independent of the claims of the appellees, despite their having arisen from the same accident. Rule 39(a) is designed to avoid subjecting a person to the risk of paying the same claim more than once. It was not intended to prevent the bringing of multiple suits based on independent claims arising from the same facts.
In Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.1974), the Texas Supreme Court at 204 construed for the first time paragraph (a) of amended Rule 39, observing that the proper concern of an appellate court "is less that of the jurisdiction of a court to proceed and is more a question of whether the court ought to proceed with those who are present." The Court then went on to state:
Under the provisions of our present Rule 39 it would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined. . . . [T]here is no arbitrary standard or precise formula for determining whether a particular person falls within its provisions.
We think it clear that joinder of Mr. Frede and Mr. Britt was not required by paragraph (a) of Rule 39 but was a matter within the discretion of the trial judge. Royal Petroleum Corporation v. Dennis, 160 Tex. 392, 332 S.W.2d 313 (1960). Since the record did not reflect that either Mr. Frede or Mr. Britt had a claim arising *571 from the collision, we cannot say the judge abused his discretion in refusing to order their joinder. The denial of that part of the motion for continuance which was based on their absence from the suit cannot constitute error.
Thus, appellants' points of error sixty-one and sixty-two, which complain of the denial of the motion for continuance and of the motion to join Mr. Britt and Mr. Frede, must be overruled. Similarly, points of error fifty-four through sixty, which complain of the consolidation and proceeding to trial, are also overruled.
We also find no error in the matters complained of in the appellants' first fifty points of error. In those points they attack the trial court's actions in entering judgment for each plaintiff and intervenor, in finding that certain persons actually sustained injuries or died as a result of the accident, and in finding that the parties incurred certain medical and funeral expenses.
When the defendants Hall and Millers Casualty tendered a total of $40,000 into the registry of the court for division among the plaintiffs, they did so without reservation or condition. They then stipulated that no more than that amount would be sought by the plaintiffs, and the parties waived trial by jury, so the only issue before the trial judge was the division of the $40,000 among the plaintiffs. The plaintiffs do not complain of the division, and defendants-appellants have no standing to do so. Granite State Fire Insurance Co. v. Roberts, 391 S.W.2d 825 (Tex.Civ.App.1965, writ ref. n. r. e.). Further, the appellants have not shown how the alleged errors prejudiced their rights.
Appellants assert that their tender of the insurance policy limits was compelled by the Dorsey plaintiffs' offer to settle, in view of the decision in G. A. Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex.Comm.App.1929). That case stands generally for the proposition that an indemnity insurer defending a suit against its insured must exercise ordinary care in considering settlement offers and, specifically, may be liable for the entire amount of a judgment which exceeds the policy limits if it has rejected an offer within those limits.
Appellants' compulsion theory is unacceptable for two reasons. First, the Stowers doctrine applies to insurance companies not to individual defendants, the insured parties. Robert and Jimmy Hall were under no obligation to accept a settlement offer because of Stowers. Their attorney stated that he was making the tender on their behalf; he did not say that he was acting for their insurer.
Second, there was no complaint made of any compulsion on appellants' part when the monies were tendered, nor even any mention of the Stowers doctrine. The decision to accept a low settlement figure rather than risk possible liability in a much larger amount is a strategic decision which a defendant makes for his own benefit. If appellants were indeed making the tender under protest, it was incumbent upon them to say so at the time. See Plasky v. Gulf Insurance Company, 160 Tex. 612, 335 S.W.2d 581, 583 (1960); Jackson v. Fleming Co., Inc., 487 S.W.2d 190 (Tex.Civ.App.1972, no writ).
In points of error fifty-one through fifty-three, Robert Hall complains about the trial court's having rendered judgment against him, but the error, if any, was harmless. Rule 434, T.R.C.P. The amount of his insurance coverage was tendered by his counsel for division among the plaintiffs, and the judgment does not exceed that amount. The points are overruled.
The Hutchison plaintiffs/appellees present two cross-points in which they urge that this court has no jurisdiction over this appeal because appellants failed to timely file both the transcript and the statement of facts.
If appellants' motion for new trial was overruled by operation of law on August 10, 1979, then the deadline for filing the record on appeal was October 9. Rules 4, 386, Tex.R.Civ.Proc. The transcript was filed on that date and was followed six days *572 later by a timely motion under Rule 21c for extension of time until October 26 for filing the statement of facts. The motion was granted by this court on November 1, at which time the statement of facts (which had already been received) was marked filed. Therefore, if the motion for new trial was indeed overruled by operation of law, then the record was timely filed.
Appellees call to our attention an order signed by the trial judge in which he purported to have overruled the motion for new trial on July 26. This written order does not pretend to overrule the motion but rather, in connection with another matter, simply indicates that the motion had already been overruled on July 26. The record before this court contains no other evidence indicating that the motion was overruled before August 10.
We hold that in the absence of a written draft of the purported July 26 order, the appellants' motion for new trial was overruled by operation of law on August 10 and that the record on appeal was timely filed. The written order mentioned above was a nullity insofar as it purported to affect either the motion for new trial or the timetable for filing papers on appeal. See Flowers v. Muse, 427 S.W.2d 727 (Tex.Civ. App.1968, writ ref.); Washington v. Golden State Mutual Life Insurance Company, 405 S.W.2d 856 (Tex.Civ.App.1966, writ ref., 408 S.W.2d 227); Hernandez v. Baucum, 338 S.W.2d 481 (Tex.Civ.App.1960, no writ).
The appellees' cross-points are overruled.
The judgment of the trial court is affirmed.
EVANS and WARREN, JJ., participated.
NOTES
[1] Although neither these plaintiffs nor their attorney had received formal notice of this motion or appeared in the courtroom, the trial judge awarded damages to them, and they do not complain of the consolidation or of the court's having proceeded to trial in their absence.
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113 F.2d 881 (1940)
In re GREENPOINT METALLIC BED CO., Inc.
No. 401.
Circuit Court of Appeals, Second Circuit.
August 19, 1940.
*882 *883 Samuel Rubin, of New York City, for appellant.
Delafield, Marsh, Porter & Hope, of New York City (Eugene Blanc, Jr., of New York City, of counsel), for appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
SWAN, Circuit Judge.
On December 13, 1939, the debtor filed a petition for an arrangement under Chapter XI of the Chandler Act, 11 U.S.C.A. § 701 et seq., and orders were made continuing the debtor in possession and referring the proceeding to one of the referees in bankruptcy. The proposed arrangement provided for the transfer of the debtor's assets to a new corporation which should deposit cash sufficient to pay in full all secured and priority creditors of the debtor and to pay 20 per cent. on the claims of unsecured creditors. The appellant, Ratner, was in the employ of the debtor under a written contract providing for a term of service extending to December 31, 1940, at a weekly salary of $75 up to February 1, 1940, and $100 thereafter. Neither the debtor's petition nor the proposed arrangement mentioned Ratner's contract; no statement of it was filed as required by section 324, 11 U.S.C.A. § 724, and no provision was made to pay him salary during the debtor's continuance in possession prior to confirmation of the arrangement. The debtor's schedules listed Ratner as an employee entitled to priority payment of $50 for earned wages. Ratner was informed of the foregoing facts on the evening of December 13th. For the purpose of preserving his supposed rights under the contract he continued to report daily at the office of the debtor in possession but was told there was nothing for him to do, unless he wished to attempt to sell certain property on commissions. By letter dated January 2, 1940, the debtor in possession notified Ratner that his contract was terminated "as of this day" because "you have broken your contract with us." He replied by letter dated January 4th denying any breach of contract on his part, formally tendering his services and asserting his intention to hold "you and your successors" fully accountable for performance of the contract and for damages for breach thereof. January 4th was the date previously set by the referee as the last day for the filing of claims of creditors. Ratner had received due notice thereof, but filed no claim. Thereafter, on January 16, he brought on before the referee a motion for an adjudication (1) that his contract was not terminated by the filing of the debtor's petition or plan of arrangement and that it was in full force and effect and survived the arrangement, and that any transfer of the assets should be subject to his rights; or (2) that breach of the contract by the debtor in possession gave him a claim entitled to priority of payment; or (3) that he is a creditor materially and adversely affected by the proposed arrangement and the plan should make provision for paying in full creditors having executory contracts; and (4) that confirmation of the proposed arrangement be stayed until determination of the status of his contract and the claim thereunder. After hearings the referee made an order dated February 2, 1940, denying the motion and allowing Ratner's claim only in the amount of $50, for which it was listed in the debtor's schedules. On March 8th the District Court affirmed the referee's order; Ratner promptly appealed. In the meantime, on February 17th, the arrangement was confirmed. No review of the order of confirmation was sought. From motion papers filed in this court it appears that the cash deposited by the new corporation is $1,006.50 in excess of the amount necessary to carry out the terms of the arrangement and disposition of such excess deposit has been stayed pending determination of this appeal.
The referee found that there had been no breach of contract by Ratner up to the time of the filing of the debtor's petition and it was then in existence as an executory contract provided it was valid. He held it invalid because of the provisions of paragraph 14 declaring that it should be binding on the employer in the event of any corporate reorganization under the Chandler Act. The District Judge, however, correctly ruled that the invalidity of that paragraph would not vitiate the entire contract. Consequently, discussion must start upon the premise that Ratner had a valid executory contract with the debtor when its petition was filed.
As this court pointed out in Mohonk Realty Corp. v. Wise Shoe Stores, Inc., 2 Cir., 111 F.2d 287, the holder of an executory *884 contract with the debtor occupies an equivocal position. Until his contract is rejected he is not a creditor with a provable claim; but he is not helpless, for he may insist that his contract be either rejected or assumed under the plan and may apply to the bankruptcy court to protect his interest at the confirmation hearing or before. The provisions of Chapter X, 11 U.S.C.A. § 501 et seq., which were discussed in the case above cited have their counterparts in Chapter XI. Section 353 provides that if an executory contract shall be rejected pursuant to the provisions of an arrangement or to permission of the court (see sec. 313) "any person injured by such rejection shall, for the purposes of this chapter and of the arrangement, its acceptance and confirmation, be deemed a creditor." Section 357 provides that an arrangement may include "(2) provisions for the rejection of any executory contract."
The referee found that there had been no rejection under section 353, through the plan, or by permission of the court. Whether the arrangement effected a rejection of the contract presents a question of law not entirely free from doubt. It contained no express rejection and it provided that the new corporation should acquire from the debtor "all its assets." But from the fact that no "statement" of Ratner's contract accompanied the debtor's petition, no provision was made for payment of salary to him while the debtor continued in possession, and no mention of the contract was contained in the arrangement, it seems clear that the debtor's executory contract with Ratner was not intended to be one of the assets transferred to the new corporation. If an arrangement may tacitly reject an executory contract, we think the debtor's arrangement did so. In that event Ratner thereupon became a creditor and, having full knowledge of the facts, he had ample time to file his claim as such before expiration of the bar order on January 4th. But we are constrained to believe that the statute does not authorize a tacit rejection of an executory contract. Section 324 requires the petition to be accompanied by "a statement of the executory contracts of the debtor"; section 357 provides that an arrangement "may include * * * (2) provisions for the rejection of any executory contract"; and section 353 refers to rejection "pursuant to the provisions of an arrangement." These sections indicate, in our opinion, that express provisions of rejection are required to effect the rejection of an executory contract by the terms of an arrangement. See 2 Gerdes, Corporate Reorganizations, § 713. Consequently, no rejection had occurred prior to January 4 and Ratner was not a creditor to whom the bar order applied.
Before confirmation of the arrangement he brought on his motion to fix his status under his contract with the debtor. This motion was timely, and the referee should have ordered the contract to be rejected and should have fixed a time for proving the claim arising from such rejection. Section 369(3). Such claim was entitled to share on a parity with other unsecured creditors under the arrangement. As Ratner did not appeal from confirmation of the arrangement he cannot attack that order; but since there happens to be an excess deposit still within the court's control, we see no reason why he may not still be allowed to prove the damages resulting from rejection of his contract and receive a payment of 20 per cent. thereof out of the excess deposit. See Section 369.
The appellee argues that the appeal should be dismissed because the appellant has accepted payment of the $50 for which his claim was allowed by the order appealed from. The principle that one may not accept the benefits of a judgment and at the same time try to set it aside is well established. Smith v. Morris, 3 Cir., 69 F.2d 3. But the principle is inapplicable here. Assuming the payment to have been made and accepted, although the record does not so disclose, it was made pursuant to the order of confirmation, not the order on appeal.
The order is reversed and the cause remanded for further proceedings in conformity with this opinion.
CHASE, Circuit Judge (dissenting in part).
I agree that the appellant was entitled to have his executory contract either affirmed or disaffirmed and that in the latter event he would have been a creditor entitled to be treated as such so long as the terms of the plan of arrangement remained open. But he failed to appeal from the order confirming the debtor's arrangement. Its provisions have, therefore, now become binding upon him just as they have upon all other creditors and upon the debtor. There has been no deposit for any claim for damages *885 resulting from the rejection of his executory contract to be distributed under Sec. 369 of the statute and the so-called excess deposit is payable under the terms of the arrangement to the attorneys for the debtor. It seems to me clear on this record that, in his zeal to force an adoption of his executory contract, the appellant failed to preserve the substance of his alternative rights as a claimant for damages by reason of its rejection. In order to share further than he has already in the confirmed arrangement, the terms of that will have to be modified and, if the appellant has, indeed, already accepted the payment of the claim allowed him under that plan he is now estopped upon remand from attacking its other provisions including, of course, the one making any express deposit payable to the attorneys for the debtor. Smith v. Morris, 3 Cir., 69 F.2d 3.
I would affirm on the ground that the arrangement as confirmed has finally fixed the rights of the parties.
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596 S.W.2d 893 (1980)
Ex parte Lewis Kennedy HARRIS.
No. 62648.
Court of Criminal Appeals of Texas, En Banc.
April 9, 1980.
Paul G. Johnson, Huntsville, for appellant.
Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
ROBERTS, Judge.
As we previously ordered, see 593 S.W.2d 330 (Tex.Cr.App.), the judge of the convicting court has conducted an evidentiary hearing and made findings of fact and conclusions of law. The evidence which was introduced was the testimony of the applicant *894 and his former attorney, Pat Walker, and a transcript of a co-defendant's federal habeas corpus hearing. The judge below found:
"FINDINGS OF FACTS
"1. Mr. Pat Walker, on May 24, 1950, had been out of law school less than six months and had taken only two semester hours of criminal law at the time he was appointed to represent Mr. Harris and his co-defendant on a total of four causes of capital felony.
"2. On the day Mr. Walker was appointed to represent Mr. Harris, he was in the courtroom for the purpose of observing court procedure.
"3. Mr. Walker spent no time conferring with Mr. Harris to determine the facts of the cases and if there were any defenses to the charges against Mr. Harris.
"4. No advise [sic] was given to Mr. Harris that would have promoted his understanding of the law as it related to the facts.
"5. Had any advise [sic] been given Mr. Harris, it would not have been competent for at that time Mr. Walker did not understand criminal law.
"6. No advise [sic] was given to Mr. Harris, so his decision to plead guilty was not an informed and conscious choice.
"7. Mr. Walker was of the opinion that there was an agreement between the District Attorney and Mr. Harris that in return for the guilty plea Mr. Harris would be given a ten year sentence that would run concurrent with the sentence Mr. Harris already had and accordingly, Mr. Walker made no attempt to determine if the plea was voluntary and knowing.
"8. After Mr. Harris was sentenced to life imprisonment, Mr. Walker made no attempt to withdraw the guilty plea.
"CONCLUSION OF LAW
"1. On May 24, 1950, the time Mr. Pat Walker represented Mr. Lewis Kennedy Harris, Mr. Walker was not capable of rendering reasonably effective assistance of counsel. This was especially true since Mr. Harris was charged with two capital felonies.
"2. Mr. Lewis Kennedy Harris did not receive reasonably effective assistance of counsel when he pled guilty to Gregg County Cause Numbers 4404-B and 4405-B.
"3. Because Mr. Lewis Kennedy Harris did not receive reasonably effective assistance of counsel this Court recommends that the relief requested should be granted and petitioner should be remanded to the custody of the sheriff of Gregg County to answer the indictments in cause numbers 4404-B and 4405-B."
A mere, pro forma appearance of counsel does not amount to the "Assistance of Counsel" and "due process of law" that are guarantied by the United States Constitution.[1]Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Neither does it afford the "right of being heard by .. counsel" guarantied by the Texas Constitution.[2] These constitutional provisions require that counsel render reasonably effective assistance. Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974). A guilty plea rendered without the effective assistance of counsel (or a knowing and intelligent waiver of counsel) is not a voluntary and knowledgeable act, and habeas corpus relief will be granted from such a conviction. Ex parte Bratchett, 513 S.W.2d 851 (Tex.Cr.App.1974). In Bratchett, counsel talked to his client only three times; he did not interview any witnesses or research the law; he (and the prosecutor) told the defendant that pending charges in another county would be dismissed, although they were not; he advised his client to plead *895 guilty for a maximum sentence; and he sent his partner to appear at the trial. We held that he did not render reasonably effective assistance and that the guilty plea was not voluntary and knowledgeable. Counsel in this case was no more (and possibly less) effective than Bratchett's.[3] The convictions cannot stand constitutional scrutiny.
The relief sought is granted. The applicant is ordered released from any restraint imposed by the judgments and sentences in causes 4404-B and 4405-B of the 124th Judicial District Court of Gregg County. By virtue of the indictments pending in those causes, the applicant is remanded to the custody of the Sheriff of Gregg County.
NOTES
[1] U.S.Const. Amends. VI & XIV, Sec. 1.
[2] Tex.Const. Art. I, Sec. 10.
[3] Counsel commendably testified that his assistance was entirely ineffective. It is undisputed that he is now an experienced and capable attorney.
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596 S.W.2d 413 (1980)
The PULITZER PUBLISHING COMPANY, Plaintiff-Respondent,
v.
LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, Division of Employment Security et al., Defendants-Appellants.
No. 61692.
Supreme Court of Missouri, En Banc.
March 11, 1980.
Rehearing Denied March 11, 1980.
*414 Robert B. Hoemeke, St. Louis, for plaintiff-respondent.
Jess W. Ullom, Clayton, for amicus curiae.
SEILER, Judge.
This is an appeal from a decision of the Circuit Court of the City of St. Louis which reversed the decision of the Labor and Industrial Relations Commission upholding the eligibility of the members of ten non-striking unions to unemployment compensation. The Labor and Industrial Relations Commission, the Division of Employment Security and individual claimants belonging to the ten non-striking unions appealed. We sustained the defendants' application to transfer after an opinion in the court of appeals because of the general interest and importance of the questions presented. We will treat the case as though here on original appeal. Mo.Const. art. V, § 10.
I
The facts as found by the referee and adopted by the Labor and Industrial Relations Commission (hereinafter referred to as "the commission") are as follows: respondent, *415 The Pulitzer Publishing Company (hereinafter referred to as "the employer") publishes and prints a daily newspaper with plants and facilities at three different locations in St. Louis. The employer also does the printing for the other St. Louis daily newspaper. The employer's newspaper is distributed by carriers who are independent businessmen and not employees of the employer. The employer employs between 2,000 and 2,100 individuals. Between 50 and 100 of these employees are executive and administrative personnel who are not members of any union. About 32 of the remaining employees, less than 2% of all employees, are members of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local No. 610 (hereinafter referred to as "Teamsters"). The Teamsters performed duties at the docks and loading platforms adjacent to the production plants of the employer, loading and unloading newspapers and newspaper supplements, and were known as "dockmen".
The remaining employees, including the claimants, are members of some ten different skilled and highly skilled trade or craft unions. The services performed by these employees include those of reporters, photographers, photofinishers, photoengravers, lithographers, typesetters, printers, pressmen, mailers, paper handlers, stockmen, operating engineers, switchboard operators, bookkeepers, accountants, machinists, electricians, and maintenance men.
None of the claimants herein belonged the Teamsters, the striking union, nor did any of the claimants or other members of the non-striking unions perform any of the duties performed by the Teamsters. Likewise, none of the Teamsters perform any of the duties performed by the members of the non-striking unions to which the claimants belonged.
Each of the non-striking unions had existing collective bargaining agreements at the time the Teamsters went out on strike. Each of the non-striking unions negotiated their respective collective bargaining agreements with the employer separately from one another and separately from the Teamsters.
The collective bargaining agreement between the employer and the Teamsters expired at midnight, August 21, 1973. Negotiations for a new contract which had begun in early July, were unsuccessful and the Teamsters called a strike at the expiration of the contract. The Teamsters' pickets appeared shortly after midnight on August 21st at all three St. Louis plants. After the teamsters' strike began, the employer suspended operations in the publishing of both its own and the other major St. Louis daily newspaper.
There was no attempt by anyone on behalf of the employer to contact any of the officers or members of the non-striking unions to learn if they would instruct their members not to cross the picket line of the Teamsters if it appeared. Claimants and other members of the non-striking unions did in fact cross the picket lines and were refused work by the employer. Copies of the following letter were distributed to the claimants and other members of the non-striking unions when they crossed the picket lines of the Teamsters and attempted to report for work:
"Because of the action taken by Local 610, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, it has become impossible to publish, print and distribute the Post-Dispatch.
"In consequence of this we are compelled to notify you that there is no work available for you to perform and that, until further notice you are no longer required to report for work and your renumeration has ceased with the completion of your last shift worked.
"This should in no sense be considered as notice of termination of your emplyment relationship with us, but should only by considered as notice of a period during which there is no work to be performed.
"A limited number of employes needed to maintain the property will be notified individually regarding their assignments.
*416 "When normal operations can be resumed and there is once again work for you to perform you will be notified.
"We want you to know that we repeatedly offered to arbitrate or mediate the issues in dispute with the striking union and the offer was rejected. We did everything possible to avert the strike and regret exceedingly that this situation has been forced on us affecting as it does so many loyal and faithful employes.
St. Louis Post-Dispatch"
Only one (Local 47) of the ten non-striking unions notified its members that it would sanction the Teamsters' picket lines. This sanction was in accord with the union's contract with the employer and was intended to prevent the employer from disciplining members of the non-striking union who might choose to refuse to cross the picket lines of the striking union. As noted above, despite this sanction, members of this non-striking union did in fact cross the Teamsters' picket lines. The union president testified that the members of the union were in fact urged to cross the picket lines and perform any and all available work. Later, when the employer learned that members of Local 47 were crossing the picket lines and reporting for work, the employer did not reconsider its decision to shut down its business.
Negotiations between the Teamsters and the employer continued and a settlement of the strike was reached on October 3, 1973. During the strike no newspapers were printed. Some members of the non-striking unions were able to continue working for the employer in such areas as payroll and maintenance during the strike. None of the claimants or their unions participated in the Teamsters' picketing nor made any financial contribution to the Teamsters during the strike. None of the claimants or their unions participated in the negotiations between the Teamsters and the employer, nor was there any indication that any of the non-striking unions had authorized the Teamsters to negotiate any issues with the employer on their behalf.
The ten non-striking unions in their prior negotiations with the employer had dropped or withdrawn issues from their contracts concerning a fifth week of vacation for employees with seniority. The employer nonetheless, unsolicited, informed the unions, orally in most instances and in writing to others, that if any union successfully negotiated an agreement in relation to a fifth week of vacation, each of the other unions would receive the same benefits. One of the issues that remained unresolved at the time of the Teamsters' strike was the Teamsters' demand for a fifth week of vacation for employees with ten years' seniority. The issue was dropped during subsequent negotiations and the final settlement did not grant a fifth week of vacation to any of the Teamsters. Representatives of the various unions to which the claimants belonged testified that their respective unions had not agreed to the employer's offer concerning the issue of a fifth week of vacation.
The referee found, after a hearing which lasted five days, that the claimants were unemployed due to a stoppage of work which existed at the premises where they were last employed. The stoppage of work was caused by a labor dispute between the employer and the dockmen who were Teamsters. The claimants were not of the "same grade or, class" as the members of the union engaged in the labor dispute. The claimants and members of the unions to which they belonged did not have a "direct interest" in the labor dispute, nor did they participate in or finance the dispute. The claimants were, therefore, not ineligible for benefits under the provisions of § 288.040, RSMo 1978.[1] The commission affirmed the *417 findings and decision of the appeals referee. The circuit court, however, reversed the commission's order on the grounds that the order was unsupported by the evidence and not in accordance with the law.
II
The order of the commission is subject to review by the courts to determine whether it is "authorized by law" and whether it is "supported by competent and substantial evidence upon the whole record". Mo.Const, art. V, § 18. In reviewing an administrative decision, the circuit court's inquiry is limited. Board of Education, Mt. Vernon Schools v. Shank, 542 S.W.2d 779, 781 (Mo. banc 1976). The court may not substitute its judgment on the evidence and may not set aside an administrative decision unless the decision is clearly contrary to the overwhelming weight of the evidence. Id. at 782. "The court must consider the evidence in the light most favorable to the findings and decision of the commission, and all reasonable inferences therefrom, and must disregard all opposing and unfavorable evidence." Neeley v. Industrial Commission, 379 S.W.2d 201, 204 (Mo.App.1964). "If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding." Board of Education, Mt. Vernon Schools, supra, 542 S.W.2d at 782.
The legislature enacted the Employment Security Law in 1951 with the expressed purpose of setting aside unemployment reserves "to be used for the benefit of persons unemployed through no fault of their own." § 288.020.1, RSMo 1978. "This law shall be liberally construed to accomplish its purpose to promote employment security. . . by providing for the payment of compensation to individuals in respect to their unemployment." Section 288.020.2, RSMo 1978. "Disqualifying provisions are to be narrowly construed." O'Dell v. Division of Employment Security, 376 S.W.2d 137, 142 (Mo.1964).
III
We find that the commission's findings and decision were supported by competent and substantial evidence and were not clearly against the overwhelming weight of the evidence.
A
The commission found that the claimants and other members of the non-striking unions were not "directly interested" in the labor dispute. "[W]hether or not claimants were directly interested in a labor dispute which caused the stoppages of work are questions of fact requiring findings that could only be obtained from the evidence and could only be reached by natural reasoning." Poggemoeller v. Industrial Commission, 371 S.W.2d 488, 499 (Mo.App.1963).
The commission found that each union was independent of the others, having separate employment agreements with separate effective and termination dates, separate wages, hours and other conditions of employment. Each of the non-striking unions were working under binding collective bargaining agreements with the employer. None of the non-striking unions participated in the Teamsters' negotiations with the employer, nor did they authorize the Teamsters to negotiate on their behalf. All of the non-striking employees who were working when the strike was called continued to work through their respective shifts. The claimants and other members of the non-striking unions reported for work the *418 next day and were denied work by the employer after they had crossed the Teamsters' picket line. None of the members of the ten non-striking unions participated in the picketing nor financially supported the Teamsters' strike efforts.
The employer contends that its promise to give all employees with ten years seniority a fifth week of vacation if it gave such benefits to the handful of Teamsters, effectively created a "direct interest" in the labor dispute for the non-striking employees under the Poggemoeller case, supra. In Poggemoeller, the court upheld the commission's finding of fact that the members of one union were "directly interested" in a labor dispute because they stood to gain or lose by the outcome of the strike of another union. The facts in Poggemoeller are starkly different from those in the case at bar. In Poggemoeller, the claimants were members of one of two unions whose members worked in various automobile dealerships and body shops. The claimants worked as service and parts personnel and the members of the other union worked as mechanics and repair workers. All of the various employers belonged to an association that was authorized to conduct negotiations with both unions. Although the employment agreements were executed by each employer separately, they were signed and executed by both unions jointly. Many of the provisions of these employment contracts applied equally to all employees regardless of which union they belonged to. All contracts in the past had been negotiated jointly by the two unions and contained identical execution and termination dates. Both unions jointly served notice on the employers that they wished to negotiate a new agreement. At the time when the mechanics union went out on strike, neither union was working under contract. The association continued to negotiate jointly with both unions throughout the strike and both unions were represented at all negotiations.
In the case at bar, the employer negotiated with each union separately. Each of the contracts of the non-striking unions varied materially from that of the dockmen's with respect to wages, hours and working conditions. The contracts did not have uniform execution or termination dates. At no time did the non-striking unions or their members participate in the negotiations between the employer and the Teamsters, or attend any of the negotiating sessions. There also was the following testimony from some of the non-striking union representatives: that they had no recollection of any assurances that in the event a striking union obtained a fifth week of vacation that the same would be offered to them; that they recalled no reports from the Teamsters that this subject was being negotiated; and that if there were to be any additional vacation time, each union would do its own negotiating on it and anything else would be null and void.
To be disqualified under § 288.040.5(1)(a), the claimant must be "directly interested" in the labor dispute causing the work stoppage. The adverb "directly" can be used in a variety of ways. It can have reference to time, as "directly after this he was removed"; or straightforwardness, as "he asked her opinion directly"; or direction, as "wind blowing directly offshore", but in the statute before us it is used in its causative sense of happening without anything intervening, as opposed to indirectly. In that sense the claimants here were interested only indirectly, not directly, in the vacation issue. There was evidence from which the commission could find that discussion of the vacation issue between the employer and the Teamsters (and it did not get beyond that stage) at the most could affect claimants only at some undermined future time and then only if additional vacation benefits materialized as a part of different collective bargaining agreements. The commission could have considered that any direct benefit to claimants from the vacation issue was speculative and the commission was within the evidence before it when it found that the claimants were not interested.
The commission found that the vacation issue (the only conceivable item in the dispute that could possibly benefit any employees *419 other than the striking Teamsters) was not a principal issue in dispute between the Teamsters and the employer when the strike began. The major issue of the strike concerned the employer's attempted replacement of some of the Teamsters' manual labor through partial automation of the loading docks. There was no evidence that the vacation issue was an item seriously considered or negotiated by either the Teamsters or the employer.[2] It is not unusual in labor negotiations for each side to commence with a "laundry list" of demands, many of which are merely chips to be expended in the bargaining process.
There is another consideration. If an unsolicited conditional promise by the employer to give all employees whatever benefit the striking union obtained in regard to a single issue chosen by the employer were found per se to create a "direct interest" in the dispute for all employees, the legislative plan embodied in the statute would be altered. As noted above, one of the statute's basic purposes is to protect employees out of work through no fault of their own. If an employer's unsolicited conditional promise, no matter how remote the employer's obligation on it or how small a part it played in the negotiations, were to make all non-striking employees ineligible for protection under the statute, then the non-striking employees, out of work through no fault of their own, would become hostages in labor disputes. An employer would be able to exert extreme pressure on striking employees by making their strike most damaging to the non-striking employees. The non-striking employees, hit harder than the real parties to the dispute because they are ineligible for both unemployment benefits and their own unions' strike benefits, could then be expected to pressure the striking union to give up its demands. The employer's promise could be made for this purpose with no intention to be bound by it, as the employer controls the condition precedent to his obligation to perform on the promise. It is not necessary to declare that such was the employer's intention here. The point is that it could be done. Moreover, an employer could also use such a conditional promise in this manner to escape its statutory financial responsibility toward its employees who are out of work through no fault of their own. The promise would make the innocent employees ineligible for the benefits and would thereby relieve the employer of the financial contribution for the benefits the statute would otherwise require. Given these potential subversions of the statutory purpose, together with the fact that no fifth week of vacation was actually granted the Teamsters and that what would have taken place with the other unions is speculative, the commission could reasonably find, based upon its expertise and experience in the area of labor negotiations, that the unsolicited conditional promise by the employer did not create the requisite "direct interest" in the dispute so as to make the non-striking employees ineligible for unemployment benefits under the statutory plan.
The commission did so find. It is apparent that the circuit court viewed the evidence as capable of supporting a contrary finding, and the court failed to give the requisite deference to the administrative determination. As noted above, the court must view the evidence in the light most favorable to the findings and decision of the commission and must disregard all opposing and unfavorable evidence, Neeley, *420 supra, 379 S.W.2d at 204. To repeat, if the evidence would warrant either of two findings, the court is bound by the commission's determination, and it is irrelevant that there is supportive evidence for the contrary finding. Board of Education, Mt. Vernon Schools, supra, 542 S.W.2d at 782.[3] The commission's finding that the non-striking employees were not directly interested in the Teamsters' labor dispute was supported by substantial and competent evidence and was not clearly against the overwhelming weight of the evidence.
B
The commission also found that the claimants and other members of the ten non-striking unions were not of the same grade or class as the Teamsters dockmen, under § 288.040.5(1)(b), RSMo 1978.[4] The commission found that claimants were skilled and highly skilled members of ten different trade and craft unions, performing various services ranging from those of reporters and photographers to switchboard operators and bookkeepers. The duties of the striking Teamsters dockmen, on the other hand, consisted entirely of such unskilled labor as loading and unloading newspapers into trucks on the employer's docks and loading platforms. The commission found no interchange of duties between the unskilled Teamsters dockmen and the members of the ten non-striking skilled and highly skilled trade and craft unions. Beyond this difference in skills, the commission found that each of the ten non-striking unions had an individual contract and separate contractual terms concerning wages, hours of work and conditions of employment, differing from those of the striking Teamsters.
The employer contends that the nearly 2,000 non-striking employees from the ten skilled trade and craft unions were of the same grade or class as the 32 striking Teamster's dockmen, citing O'Dell, supra. The employer's reliance on O'Dell is misplaced because the legal issues and facts of that case are markedly different from those presented in the instant case. O'Dell dealt with the question, where an automobile manufacturer has two divisions in the same building with merging assembly lines, whether a strike in one division constituted *421 a stoppage of work in the factory where employees of the other division were employed. At issue in O'Dell was a construction of the "stoppage of work" subsection of the Employment Security Law, now § 288.040.5(2), RSMo 1978, and O'Dell did not address the construction of the "same grade or class" language in § 288.040.5(1)(b), RSMo 1978.
In O'Dell, employees of the two divisions belonged to the same local union, which was the exclusive bargaining agent for all general wage rates and pay increases. When the employees in the one division went on strike, the employees in the other division honored the strike. Employees of both divisions worked side by side on the production line where the two assembly lines merged. The two divisions were closely coordinated as to work, number of shifts, reduction of forces on either side, close-downs for inventory, vacations or material shortages. The court concluded "that the building, place, location and premises where the Chevrolet Division employees and the Fisher Body Division employees were working was a single automobile factory, and that the factory where claimants were employed was the same factory in which the work stoppage arising out of a labor dispute occurred." 376 S.W.2d at 145. The court then summarily upheld the commission's determination that the claimants failed to show that they did not participate in the labor dispute, that they were not financing the strike, that they were not directly interested in the dispute and they were not of the same grade or class as the strikers. As to the issue of "same grade or class," the court merely upheld the commission's determination that employees belonging to the same union, doing essentially the same type of work side by side on the same assembly line, were of the same grade or class.
Unlike the facts in O'Dell, in the case at bar none of the claimants was in the same union as the striking Teamsters dockmen, none performed the same work, none worked side by side with the Teamsters nor were represented by the same bargaining agent. The claimants in the instant case are members of skilled and highly skilled trade and craft unions, unlike the striking Teamsters, who performed unskilled manual labor in loading finished newspapers into trucks on the dock area of the employer's plants. Furthermore, the claimants and other members of the non-striking unions refused to honor the Teamsters' strike. There was ample support in the record for the commission's finding, that the non-striking employees were not of the same grade or class as the striking Teamsters dockmen.
C
In conclusion, the commission found that the claimants and other members of the non-striking unions were not participating in, financing, or directly interested in the labor dispute and were not members of the same grade or class of the workers participating in or financing or directly interested in the dispute which caused the stoppage of work. The commission, therefore, determined that the claimants were not ineligible for unemployment benefits. The commission's findings and decision were based on substantial and competent evidence and were not clearly against the overwhelming weight of the evidence. The circuit court improperly substituted its judgment for that of the commission. We, therefore, reverse the decision of circuit court and remand the case for a reinstatement of the commission's order and any further necessary proceedings not inconsistent with this decision.
Reversed and remanded.
BARDGETT, C. J., and MORGAN and HIGGINS, JJ., concur.
WELLIVER, J., dissents in separate dissenting opinion filed.
DONNELLY and RENDLEN, JJ., dissent and concur in separate dissenting opinion of WELLIVER, J.
WELLIVER, Judge, dissenting.
I respectfully dissent.
*422 The principal opinion would reverse the judgment of the Circuit Court of the City of St. Louis that the account of respondent, Pulitzer Publishing Company (hereinafter, "Pulitzer") with the Division of Employment Security should not be charged under § 288.070.7, RSMo 1978, with the payments made by the Labor and Industrial Relations Commission, (hereinafter, the "Commission") to nonstriking employees of Pulitzer during the suspension of publishing operations at Pulitzer's plants growing out of the Teamsters' dockmen's strike of August to October of 1973. The question whether Pulitzer's account should be charged with the payments made by the appellant Commission during the work stoppage depends on whether the claimants were ineligible for benefits under § 288.040.5, RSMo 1978. The trial court found that the nonstriking individual claimants were ineligible for benefits as a matter of law because they were "directly interested" in the outcome of the Teamsters' negotiations. In an opinion by A. Stockard, Sp. J., filed July 3, 1979, a panel of the Court of Appeals, Eastern District, unanimously would affirm the judgment of the circuit court. In my opinion, the judgment of the circuit court was correct and should be affirmed. The opinion which follows uses much of the language and analysis found in the opinion of the court of appeals, without benefit of quotation marks.
It should be noted at the outset that the individual claimant-employees who received unemployment compensation because of the suspension of production by Pulitzer will keep the compensation paid to them regardless of the outcome of this appeal. § 288.070.6, RSMo 1978. Consequently, although the "claimant-employees" as a group have appealed from the judgment of the circuit court, they have no interest in the outcome of this litigation. There is, however, a justiciable controversy between the Commission and Pulitzer because in the event Pulitzer prevails in this appeal, its account with the Division of Employment Security will not be charged with the payments made to claimants, § 288.070.7, RSMo 1978, and the amount of charges against Pulitzer's account affects the tax rate it must pay, under §§ 288.113 to 288.123, RSMo 1978.
The Commission found that the claimants were unemployed due to a stoppage of work which existed at the premises where they were last employed, and which was caused by a labor dispute between Pulitzer and Teamsters Local 610. This finding is supported by substantial evidence. It is of no consequence that the unemployment of claimants was directly precipitated by the action of Pulitzer in suspending publication of its newspaper. The underlying cause of the work stoppage was the labor dispute. Adams v. Industrial Commission, 490 S.W.2d 77, 80-81 (Mo.1973); Poggemoeller v. Industrial Commission of Missouri, 371 S.W.2d 488, 500 (Mo.App.1963).
The Commission also found that nonstriking claimants belonged to "skilled or highly skilled unions" and "were not of the same grade and class as the members of the union engaged in the labor dispute." Consequently, the Commission found that they were not ineligible for benefits by reason of § 288.040.5(1)(b), RSMo 1978.
One of the issues under negotiation between Pulitzer and Teamsters Local 610 was whether employees with ten years' seniority would be given a fifth week of vacation. Pulitzer had agreed to give all of its employees with ten years seniority a fifth week of vacation if it gave such benefits to the striking Teamsters. Pulitzer contends that this agreement gave the nonstriking employees a "direct interest" in the labor dispute under § 288.040.5(1)(a), RSMo 1978. The Commission adopted the finding of its referee that Pulitzer "had either orally or in writing or by both means agreed with these unions [the ones to which claimants belonged] that if any other union did successfully negotiate an agreement in relation to the fifth week vacation issue that each of the unions would receive a like agreement on the issue for their members." The Commission's referee made the additional finding, however, that he was "not convinced that the issue involving a fifth week of vacation for certain employees *423 with seniority was a principal issue between the striking union and the employer," and that he was not convinced that Pulitzer's oral and written agreements to extend to each of the members of the nonstriking unions the fifth week of vacation for employees with ten years' seniority "amounted to a direct interest in the labor dispute by the claimants or members of the unions to which they belonged."
The trial court ruled that the Commission's conclusion that claimants had no "direct interest" in the labor dispute that caused the stoppage of work was "inconsistent with the facts and at variance with the judicial construction of the phrase." It also ruled that the Commission's conclusion "that claimants were not of the same class as the striking dockmen is in conflict with judicial interpretation of that term." I agree with the trial court on both issues.
The Commission found as a fact that there was an agreement with all the other unions to which claimants belonged that if the fifth week of vacation was granted to one union, it would be granted to all. It is true that there was conflicting evidence as to this fact issue, but the finding of the Commission is amply supported by substantial evidence, and therefore it is binding on the reviewing court. § 288.210, RSMo 1978. The Commission also found that if the negotiation for the fifth week of vacation time had been successful, the results would have benefitted "some of the claimants or members of the unions to which they belonged."
Robert A. Steinke, Executive Secretary of the St. Louis Newspaper Guild, Local 47, identified Employer's Exhibit 12, and testified that it was marked "Memorandum of Understanding," dated April 5, 1972, that it was a document that pertained to vacation schedules, and particularly, to a fifth week of vacation, and that it was signed on behalf of the St. Louis Newspaper Guild, by Mr. Wippold, then president of the St. Louis Newspaper Guild. That agreement provided that if any union obtained a fifth week of vacation, the same "shall also be provided" to employees who are members of the Guild.
Marvin Kanne, Director of Labor Relations of the St. Louis Globe-Democrat, identified Employer's Exhibit 13, and testified that it was a letter dated April 27, 1973, that it was written as a result of an agreement regarding the fifth week of vacation issue reached during negotiations with St. Louis Typographical Union, Local 8, prior to its current contract. Raymond T. Nelke, President of St. Louis Typographical Union, Local 8, testified that he requested that the letter be written.
Mr. Kanne identified Employer's Exhibit 15, as a letter dated September 1, 1972, and testified that the letter was written as the result of an agreement regarding the fifth week of vacation issue reached during negotiations with International Association of Machinists, District 9. Mr. Roy D. Hawkins, a business representative of the International Association of Machinists and Aerospace Workers, District 9, (IAM), testified that the letter represented an agreement reached in meetings with representatives of Pulitzer. Mr. Hawkins testified that he received the letter on September 1, 1972, and that it reflects an agreement previously reached between IAM and the representatives of Pulitzer in bargaining sessions and that the letter was written at the request of Mr. Hawkins.
Mr. Kanne testified that Employer's Exhibit 14, was a letter dated October 6, 1972, and that it was written as the result of an agreement concerning the fifth week of vacation issue reached during negotiations with St. Louis Paperhandlers and Electrotyper's Union, Local 16. The President of that union, William Aubuchon, testified that the letter was an offer made by Pulitzer, that it confirmed Pulitzer's position but did not confirm the union's position, and that Aubuchon could not recall whether he had requested that that letter be written.
Mr. Kanne testified that agreements such as those reflected in Employer's Exhibits 12 through 16 were made with each of the other unions regarding a fifth week of vacation. He testified that in those cases where letters were requested by the unions *424 they were written, and that in the other cases no letter was sent. Mr. Kanne's testimony regarding the existence of written agreements on the fifth week of vacation issue was not contradicted. With respect to unwritten understandings with the other unions regarding the fifth week of vacation issue, the evidence was as follows.
Charles R. Witt, Vice President of Graphic Arts International Union, Local 505, testified and presented no evidence to contradict Kanne's testimony regarding an oral understanding concerning the fifth week of vacation.
Carl N. Stuard, Special Representative of the International Brotherhood of Electrical Workers, Local 1, testified, but could not recall whether or not an oral agreement concerning the fifth week of vacation had been made with that union.
William F. Metz, Jr., President of St. Louis Mailers Union, Local 3, testified that there was no oral agreement reached between his union and Pulitzer regarding the fifth week of vacation, and indicated that his union did not want Pulitzer to send a letter confirming the existence of such an agreement. Mr. Kanne testified that such an agreement did exist.
The foregoing evidence was sufficient to support the referee's finding that Pulitzer had made an agreementand not merely an "unsolicited unilateral offer"that if any union obtained a fifth week of vacation, the same would be provided to employees who are members of the other unions.
In an apparent attempt to avoid the inevitable result which would necessarily flow from what it found to be the facts, the Commission declared that it was "not convinced" that the issue involving a fifth week of vacation was "a principal issue between the striking union and the employer," and its ultimate decision that claimants had no direct interest in the labor dispute seems to be premised upon this finding. Whether this is permissible in view of the findings of fact by the Commission is a question of law reviewable by this Court.
I am not convinced that the evidence supports the determination that the vacation demand was not a principal issue; in fact that finding appears contrary to the overwhelming weight of the evidence. At the beginning of the negotiations there were many issues. The issue of the additional vacation period remained unresolved until the final day of the strike. However, whether the vacation issue was a "principal issue" or not is irrelevant to the outcome of this case. Perhaps the vacation issue was, as the principal opinion suggests, merely one item on a "laundry list" or one of many "bargaining chips" which the striking dockmen expected to be "expended in the bargaining process." However, there is no statutory basis for finding a nonstriking employee eligible for unemployment benefits when that employee has a direct interest in the dispute, merely because the issue in which the employee has an interest is not a "principal issue" in the negotiations. Section 288.040.5(1), RSMo 1978, makes no such distinction. We are not at liberty to create eligibility for benefits through judicial legislation.
Despite the Commission's finding that Pulitzer had agreed with the nonstriking unions that the fifth week of vacation would be granted to all the unions if it was granted to one union, the Commission found claimants eligible for benefits.[1] The circuit court found the claimants were ineligible for benefits under § 288.040.5(1)(b), RSMo 1978, on the ground that they belonged to "a grade or class of workers of which . . . there were members employed at the premises. . . [who were] directly interested *425 in the dispute." I would affirm the judgment of the circuit court in this regard. If some of the members of the unions to which claimants belonged were directly interested in the dispute, then those members constituted a "class of workers" within the meaning of the statute. Nothing in the applicable statutory provisions authorizes a contrary determination.
In reversing the circuit court's judgment and finding the claimants eligible for benefits, the principal opinion concludes that the employees who had an interest in the fifth week of vacation did not constitute a grade or class of workers in the sense contemplated in § 288.040.5(1)(b), RSMo 1978. The principal opinion reaches this result by focusing attention on the types of duties and functions that the striking and nonstriking employees performed. Contrasting the skilled and highly skilled character of the nonstriking claimant-employees with the unskilled character of the striking dockmen, the principal opinion concludes that "[t]here was ample support in the record for the commission's finding, that the non-striking employees were not of the same grade or class as the striking Teamsters dockmen." In drawing this conclusion, the principal opinion vigorously distinguishes O'Dell v. Division of Employment Security, 376 S.W.2d 137 (Mo.1964) on the ground that both the striking and nonstriking employees in O'Dell had similar duties, worked side by side, and had the same bargaining agent. This attempt to say that the class of workers who would gain a contractual right to a fifth week of vacation upon attaining ten years' seniority if the striking dockmen won that benefit was not a class because they shared little else in common with the dockmen emphasizes irrelevant differences to the exclusion of relevant similarities.
The determinative question is whether, under the factual situation as found and determined by the Commission, claimants were "directly interested" in the labor dispute within the meaning of § 288.040.5(1), RSMo 1978. In Poggemoeller v. Industrial Commission of Missouri, 371 S.W.2d 488, 505 (Mo.App.1963), it is stated that "[a] claimant is directly interested in the labor dispute when he stands to gain or lose by the outcome of the dispute," and "when his wages, hours or working conditions will be affected by the outcome of the dispute." The findings of fact by the Commission in this case clearly establish as a matter of law that claimants each have a direct interest in the labor dispute that brought about the stoppage of work.
In its brief before this Court, the Commission contends that it "would be unwise to set a legal precedent that an employer by making an unrequested unilateral offer to a union could thereby on his own create a direct interest on the part of the members of such union to a labor dispute with another union." The argument that the direct interest here involved was unilaterally created by Pulitzer, and that it was a mere offer, contradicts the Commission's finding that there were in fact oral or written agreements with the unions to which claimants belonged pertaining to the additional vacation time. The principal opinion adopts the Commission's argument nearly verbatim. The principal opinion surveys the evidence contrary to the Commission's finding that Pulitzer had agreed to extend the vacation benefit to all the unions if it gave that benefit to one union, and concludes that "[t]he commission could have considered that any direct benefit to claimants from the vacation issue was speculative." In effect, the principal opinion takes the position that the Commission's legal conclusion on what constitutes a "direct benefit" is binding on this Court, but that the Commission's factual finding that Pulitzer had agreed orally and in writing to extend the vacation benefit to all its employees if it gave the benefit to the Teamsters is not binding on this Court. This position inverts the normal standard for judicial review of administrative action. The circuit court held that the Commission's factual finding was binding on it. Perhaps, under the evidence, the Commission could have found that no oral agreements existed, but it did not do so. In fact, it found to the contrary. However, assuming it had found no oral agreements, the above argument of the *426 principal opinion and of the Commission disregards the finding of the Commission that with some of the unions Pulitzer had entered into a written agreement pertaining to additional vacation time.
The Commission also argues that its finding that claimants were not "directly interested" in the labor dispute is a finding of fact, and as such is binding on this Court. It cites Poggemoeller v. Industrial Commission, supra. The circumstances of this case clearly distinguish it from the Poggemoeller case. Here, the Commission found as a fact that in the event the striking union was successful in its demand as to the vacation issue it would benefit "some of [the striking union's] members and thereafter some of the claimants or members of the unions to which they belonged." The Commission erroneously determined that because the issue involving a fifth vacation week was not a "principal issue" in the negotiations with the striking dockmen, the nonstriking claimants were not "directly interested" in the labor dispute which caused the work stoppage. Whether the Commission made a correct application of law to the facts is an issue of law which is subject to judicial review.
I would hold that the claimants, as members of unions with which the employer had agreed to extend the benefits of the additional vacation period if incorporated into the contract with Teamsters Local 610, as found by the Commission, were "directly interested in the labor dispute which caused the stoppage of work" as that term is used in § 288.040.5(1), RSMo 1978, and were therefore ineligible to receive unemployment benefits. Consequently, I would affirm the judgment of the circuit court that Pulitzer's account with the Division of Employment Security should not be charged with the payments made by the Commission during the work stoppage.
In conclusion, I would dismiss the appeal by the claimant-employees because there is no justiciable controversy as to them. I would affirm the judgment of the circuit court as to the appeal brought by the Commission.
NOTES
[1] Section 288.040.5, RSMo 1978, provides in part:
(1) A claimant shall be ineligible for waiting week credit or benefits for any week for which the deputy finds that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute in the factory, establishment or other premises in which he is or was last employed; . . . provided further, that this subsection shall not apply if it is shown to the satisfaction of the deputy that
(a) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work, and
(b) He does not belong to a grade or class of workers of which, immediately preceding the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute;
(2) "Stoppage of work" as used in this subsection means a substantial diminution of the activities, production or services at the establishment, plant, factory or premises of the employing unit.
[2] The commission, having adopted the appeals referee's decision, was convinced that the vacation issue was neither a principal issue nor one which would have directly benefited the claimants or other members of the non-striking unions even if the Teamsters had been successful in negotiating the issue. Its finding on the issue follows:
"The Referee is not convinced that the issue involving a fifth week of vacation for certain employees with seniority was a principal issue between the striking union and the employer and if the striking union had been successful in its negotiation on the fifth week of vacation issue benefiting some of their members and thereafter some of the claimants or members of the unions to which they belonged amounted to a direct interest in the labor dispute by the claimants or members of the unions to which they belonged under the above provisions of the Missouri Employment Security Law."
[3] Rather than disregard all opposing and unfavorable evidence, the dissent marshals supporting evidence for a contrary finding. Even assuming that supportive evidence for a contrary finding may be found, since the evidence would warrant either the commission's determination or the dissent's determination, the court is bound by the commission's determination.
Further upholding the commission's determination are the following facts in the record:
(1) In prior negotiations with one of the non-striking unions, the employer stated that under no circumstances would it give employees a fifth week of vacation.
(2) There was some evidence that the vacation issue was only one of more than 40 issues mentioned by the parties to the negotiations.
(3) In its progress reports to the other unions, the Teamsters did not list the vacation issue as an issue in negotiation. Rather, the Teamsters informed the other unions that the main issues concerned "the manning at the Dunlap plant" and the "loading inside of trucks".
(4) There were contradictions in the interpretations the parties gave to the terms of the employer's offer in regard to the vacation issue and, hence, there were serious questions as to the enforceability, if any, of the promise. The employer's assistant director for labor relations referred to the offer as an "option". One union stated that the offer was communicated to it as valid only for those with 25 years' seniority, while others understood the offer to be valid for those with 10 years' seniority. Other unions denied that either the employer or a non-striking union would be bound by the Teamsters' collective bargaining agreement.
[4] In Poggemoeller v. Industrial Commission, 371 S.W.2d 488, 498-500 (Mo.App.1963), the court of appeals held that whether an employee participates or has a direct interest in a labor dispute, and whether a work stoppage has occurred as a result of a labor dispute, were questions of fact for the commission. Although it has never been judicially determined in this state, it logically follows that the remaining condition in the statutory proviso, whether an employee is in the "same grade or class" as the striking employees, is a question of fact for the commission. When faced with this question, the Colorado Supreme Court held that whether an employee is in the "same grade or class" is a question of fact. Orr v. Industrial Commission, 188 Colo. 173, 534 P.2d 785, 790 (1975).
[1] The Industrial Commission did not consider whether the act of the St. Louis Newspaper Guild in posting notices that it "would sanction picket lines of Local 610" constituted participating in the strike within the meaning of § 288.040.5(1)(a), RSMo 1978. The stated purpose was to permit members of the Guild to refuse to cross the picket lines. Voluntary refusal to cross a picket line by a nonstriking employee does constitute participation. Meyer v. Industrial Commission of Missouri, 240 Mo. App. 1022, 223 S.W.2d 835, 838 (1949). Also, when the Guild instructs its members not to cross a picket line it constitutes participation. Basso v. News Syndicate Co., Inc., 90 N.J.Super. 150, 216 A.2d 597, 605-06 (1966).
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465 A.2d 1346 (1983)
STATE of Vermont
v.
Shawn MARTELL.
No. 82-170.
Supreme Court of Vermont.
August 15, 1983.
Richard G. English, Addison County State's Atty., Middlebury, for plaintiff-appellee.
Andrew B. Crane, Defender Gen., William A. Nelson, Appellate Defender, and John Davis, Law Clerk, on brief, Montpelier, for defendant-appellant.
Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.
HILL, Justice.
Defendant was convicted after trial by jury of aiding in the crime of breaking and entering a dwelling house with intent to commit larceny, in violation of 13 V.S.A. § 1201. We reverse.
At approximately 4:00 p.m. on September 28, 1981, complainant, a resident of Starksboro, Vermont, was returning home after work when she observed an unfamiliar light green van back out of her driveway and proceed west on Route 17. Upon entering her home through a locked garage door, she noticed that the back door to the mudroom was open, and that the glass window of the interior door was shattered. Realizing that the house had been broken into, she ran to the kitchen to telephone the police.
When she entered the kitchen, she heard two voices and the sound of objects being thrown around, emanating from a rear bedroom. Thinking fast, the victim acted as if her son were with her and shouted: "Get the gun and shoot them in the back." Before fleeing, complainant caught a glimpse of one of the intruders, whom she later identified as the defendant. From outside, she watched the intruders rush off. Once they were gone, complainant returned to her house and discovered that a pillowcase, some jewelry, a coin collection and some old nickels were missing. She immediately telephoned the police who, a short while later, apprehended defendant.
On appeal, defendant briefs three exceptions for our consideration, the first of which is whether the trial court's instruction to the jury, that "under the law a person is presumed to intend the natural and probable consequences of his acts," constitutes reversible error. Defendant asserts that the instruction, which permits an interpretation by a reasonable juror as requiring a conclusive presumption on the key element of intent, State v. Savo, 139 Vt. 644, 646, 433 A.2d 292, 293 (1981), is per se reversible error. Stated in the alternative, defendant contends that the issuance of the instruction, which is almost identical to the one held unconstitutional in Sandstrom v. *1347 Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979),[1] may never be considered harmless error.
In essence, defendant reasons that the effect of the conclusive presumption contained within the instruction is to shift unconstitutionally the burden of proof on the element of intent. State v. Dusablon, 142 Vt. 95, 97, 453 A.2d 79, 81 (1982) (citing Patterson v. New York, 432 U.S. 197, 215, 97 S. Ct. 2319, 2329, 53 L. Ed. 2d 281 (1977)). As a result, defendant claims that the State is relieved of its burden of proving every element of the crime charged beyond a reasonable doubt, In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970), while he is deprived of "`constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.'" Connecticut v. Johnson, ___ U.S. ___, ___, 103 S. Ct. 969, 978, 74 L. Ed. 2d 823 (1983) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967)).[2]
We begin with a review of the jury charge. State v. Dusablon, supra, 142 Vt. at 98-99, 453 A.2d at 81; State v. Gokey, 136 Vt. 33, 36, 383 A.2d 601, 602 (1978). The trial court commenced its jury charge by correctly explaining that the instructions had to be considered in their entirety, that defendant was presumed innocent, and that the State had the burden of proving the essential elements beyond a reasonable doubt. With respect to the issue of intent, the trial court specifically instructed the jury as follows:
[T]he State must show beyond a reasonable doubt that the defendant broke and entered into this dwelling house with the intent to commit larceny and the essential aspect of this element is the defendant's intent or state of mind.... [T]he question of the defendant's intent is one for you the jury to consider based on all the circumstances brought before you during the course of this trial. Under the law a person is presumed to intend the natural and probable consequences of his acts. And you as jurors must look into all the circumstances surrounding the offense in order to establish whether the defendant engaged in the acts alleged with the intent to commit a larceny, and if you so find beyond a reasonable doubt then the State has met its burden of proof as to that element. (emphasis added).
Next, in reference to its circumstantial evidence explanation, the trial court stated that "[o]ne or more of the essential elements or all of them may be established by probable and reasonable deduction or inference from other facts which have been established by direct testimony." Following the close of the jury instructions, defendant renewed his earlier objections to the emphasized portion of the charge.
In its brief, the State first claims that the additional instructions given by the trial court served to correct the "presumed consequences" portion of the charge. Like Sandstrom, however, a review of the charge in this case reveals nothing "rhetorically inconsistent with a conclusive or burdenshifting presumption." Sandstrom v. Montana, supra, 442 U.S. at 518-19 n. 7, 99 S.Ct. at 2456-57 n. 7. Since "we cannot discount the possibility that [defendant's] jurors actually did proceed upon one or the other of these ... interpretations," id. at 519, 99 S.Ct. at 2457, the instruction clearly violated defendant's right to due process of law. *1348 State v. Dusablon, supra, 142 Vt. at 98, 453 A.2d at 81.
The State next contends that the error was harmless. The issue of whether a charge which may reasonably be interpreted as calling for a conclusive presumption on the issue of intent may be considered harmless error, expressly left open in Sandstrom v. Montana, supra, 442 U.S. at 527, 99 S.Ct. at 2461, was specifically addressed by a sharply divided Supreme Court in Connecticut v. Johnson, supra. In Johnson, the majority's plurality opinion viewed a conclusive presumption on the issue of intent as being "the functional equivalent of a directed verdict on that issue," id. 103 S.Ct. at 976, and held that the error may never be considered harmless. Id. at 978. We find the majority's analysis both persuasive and compelling:
An erroneous presumption on a disputed element of the crime renders irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon that evidence. If the jury may have failed to consider evidence of intent, a reviewing court cannot hold that the error did not contribute to the verdict. The fact that the reviewing court may view the evidence of intent as overwhelming is then simply irrelevant. To allow a reviewing court to perform the jury's function of evaluating the evidence of intent, when the jury never may have performed that function, would give too much weight to society's interest in punishing the guilty and too little weight to the method by which decisions of guilt are to be made.
Id. at 977; see also Chapman v. California, supra, 386 U.S. at 44, 87 S.Ct. at 837 (Stewart, J., concurring); Dietz v. Solem, 640 F.2d 126, 131 (8th Cir.1981); Hammontree v. Phelps, 605 F.2d 1371, 1380 (5th Cir.1979); State v. Truppi, 182 Conn. 449, 466, 438 A.2d 712, 721 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981).
In view of the principles outlined above, and given our consistent position that "a judge's lightest word or intimation is received by a jury with great deference, and may prove controlling," State v. Camley, 140 Vt. 483, 489, 438 A.2d 1131, 1134 (1981) (citing Quercia v. United States, 289 U.S. 466, 470, 53 S. Ct. 698, 699, 77 L. Ed. 1321 (1933)), we hold that the issuance of an instruction susceptible of interpretation by a reasonable juror as requiring a conclusive presumption on an essential element of the crime charged may never be deemed harmless error. Accordingly, defendant's conviction must be reversed. In light of our disposition of this case, we need not address defendant's remaining issues.
Reversed and remanded for new trial.
NOTES
[1] In Sandstrom, the actual charge was stated as follows: "The law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom v. Montana, supra, 442 U.S. at 513, 99 S.Ct. at 2453.
[2] This Court was asked to undertake a similar analysis in State v. Dusablon, supra. In Dusablon, the trial court instructed the jury as follows: "It is ordinarily reasonable to infer that a person intends the reasonable and probable consequences of an act knowingly done or knowingly committed." After reviewing the charge in its entirety, we held that a reasonable juror could only interpret the charge "as giving rise to a permissive inference, rather than a mandatory presumption, of specific intent to steal." Id. 142 Vt. at 98-99, 453 A.2d at 82. Thus, that case is clearly distinguishable from the instant cause, and our holding today does not in any way affect our decision in Dusablon.
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318 Pa. Super. 450 (1983)
465 A.2d 40
COMMONWEALTH of Pennsylvania
v.
Charles MAYFIELD, Appellant.
Supreme Court of Pennsylvania.
Submitted May 2, 1983.
Filed September 2, 1983.
*451 Larry D. Feldman, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
McEWEN, Judge:
This is an appeal from a judgment of sentence imposed following a finding of guilt after a non-jury trial by the distinguished Philadelphia County Common Pleas Court Judge William Porter on charges of simple assault,[1] aggravated assault,[2] recklessly endangering another person,[3] and *452 possessing an instrument of crime.[4] Appellant was sentenced to a term of imprisonment of from two to eight years for aggravated assault and a concurrent term of imprisonment of from two to five years for possessing an instrument of crime. Appellant now argues that trial counsel was ineffective for failing to obtain a continuance in order to obtain the presence of eyewitnesses to the offenses allegedly committed by appellant. We affirm.
This case arises out of an altercation between appellant and a street vendor who was conducting business at the corner of Broad Street and Girard Avenue in Philadelphia. Appellant approached the street vendor from behind, drew a pistol from a bag and fired several shots at the vendor. While the victim lay on the ground, appellant fired another shot into his back and then fled from the scene.
The assistant district attorney had during the trial been under the impression that the names and addresses of three witnesses known to the Commonwealth had already been supplied to trial counsel for appellant. When the prosecutor, at the conclusion of the presentation of the defense, realized that those witnesses had not been identified to trial counsel for appellant, counsel for the Commonwealth supplied that information and indicated a willingness to permit the defense to reopen its case. While the record does not reflect the content or nature of the discussion that then ensued between the prosecutor and trial counsel for appellant, the transcript does indicate that trial counsel did not proceed to move to reopen the defense so as to apply for a delay. Appellant now asserts that trial counsel was ineffective since he "neither attempted to reopen his case or continue it in order to obtain the presence and testimony of probably helpful witnesses." (Brief of Appellant at 5) (emphasis supplied). Appellant makes no other reference to these witnesses except to state that "[t]heir testimony might have been of incalculable aid to the appellant." (Brief of Appellant at 6) (emphasis supplied).
*453 When we study a claim of ineffectiveness of counsel, we first determine whether the claim is of arguable merit. Only if the underlying claim is of arguable merit do we consider whether the strategy chosen by trial counsel has some reasonable basis designed to effectuate the interest of the client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980); Commonwealth v. Kaufman, 307 Pa.Super. 63, 73, 452 A.2d 1039, 1044 (1982). Our review of a claim that counsel was ineffective is governed by the standard enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):
[C]ounsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.
Id., 427 Pa. at 604-05, 235 A.2d at 352-53. (emphasis in original).
A failure to attempt to produce material witnesses can be a sound basis for an ineffectiveness claim, Commonwealth v. Jennings, 489 Pa. 578, 414 A.2d 1042 (1980); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975), and our appellate courts are not hesitant to remand appeals to the trial court for an evidentiary hearing to determine the grounds for the conduct of counsel when the reasons, if any, for the inaction cannot be determined from the record. Jennings, supra; Twiggs, supra. It might even seem that the remand directed by this court in Commonwealth v. Stafford, 307 Pa.Super. 278, 453 A.2d 351 (1982), is authority for the need to remand, since we there remanded for an evidentiary hearing despite the fact that there was "no record of the number or identity of witnesses the appellant wished to present, or of the content of their testimony." Id., 307 Pa.Superior Ct. at 287, 453 A.2d at 355. However, *454 a study of that decision reveals that the basis for the ineffectiveness claim was apparent to this court since trial counsel there had embarked upon the presentation of an alibi defense, had introduced testimony that the truck of appellant, which had allegedly been used in the crime, was elsewhere at the time of the crime, and had assembled witnesses to testify concerning the whereabouts of appellant but was precluded from the presentation of such testimony by reason of his failure to provide timely notice of the assertion of an alibi defense as required by Pa.R.Crim.P. 305(C)(1)(a), 42 Pa.C.S.A. Thus, while the witnesses whom Stafford would have had his trial counsel present were not identified, the nature of their testimony and the benefit to Stafford of such testimony was apparent. That scenario differs vastly from the instant case since the claim of ineffectiveness here is based only upon vague assertions that certain witnesses might have been helpful to appellant if these witnesses had appeared at the trial and does not (1) identify the witnesses or (2) indicate the witnesses had been interviewed and (3) would have been helpful or even (4) that they would have provided material evidence.
Our Supreme Court in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981), rejected a vague general claim of ineffectiveness that resembles the one raised in the instant case when it refused to remand a murder case for an evidentiary hearing since the appellant on direct appeal[5] merely argued that trial counsel was ineffective in failing to gather affirmative evidence which would have justified the transfer of the appellant to juvenile court. The court therein stated the reasons for its decision not to remand for an evidentiary hearing:
Trial counsel's failure to gather and marshall said evidence on appellant's behalf could constitute ineffectiveness only if such evidence existed. . . . Assertions of *455 ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.
Id., 492 Pa. at 563, 424 A.2d at 1335. See also, Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983) (holding that in an appeal from an order denying a PCHA petition, abstract, unsupported allegations of the ineffectiveness of all prior counsel are rejected where appellant failed to state what was wrong with the stewardship of counsel and what prejudice resulted).
Judgment of sentence affirmed.
HOFFMAN, J., files a dissenting opinion.
HOFFMAN, Judge, dissenting:
Without an evidentiary hearing to explore trial counsel's alleged failure to take reasonable steps to interview known eyewitnesses, we cannot conclude his representation of appellant was constitutionally effective. I therefore dissent.
"It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty." Commonwealth v. White, 303 Pa.Superior Ct. 550, 553, 450 A.2d 63, 64 (1982), quoting ABA Standards Relating to the Defense Function, § 4.1. Although counsel may have a legitimate strategy for not calling eyewitnesses at trial, "there is no basis for the decision not to interview them nor attempt to do so." Commonwealth v. Mabie, 467 Pa. 464, 475, 359 A.2d 369, 374 (1976). "In a case where virtually the only issue is the credibility of the Commonwealth's witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the *456 Commonwealth's witness's truthfulness is ineffective assistance of counsel." Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975). Here, appellant testified he acted in self-defense. New counsel alleges the unheard-from eyewitnesses would be helpful to this defense. Nothing on the record indicates whether trial counsel ever attempted to learn if these identified eyewitnesses would corroborate appellant's version, or why trial counsel so summarily dismissed their potential testimony. The petition thus raises a factual question of trial counsel's effectiveness requiring an evidentiary hearing. I therefore dissent, and would remand.
NOTES
[1] 18 Pa.C.S.A. § 2701.
[2] 18 Pa.C.S.A. § 2702.
[3] 18 Pa.C.S.A. § 2705.
[4] 18 Pa.C.S.A. § 907.
[5] Appellant had filed a Post Conviction Hearing Act petition alleging trial counsel's ineffectiveness for failing to perfect an appeal on his behalf. The PCHA court granted appellant the right to appeal from the judgment of sentence nunc pro tunc, and thus, the proceeding before the Supreme Court was a direct appeal.
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123 N.H. 619 (1983)
THE STATE OF NEW HAMPSHIRE
v.
JOSEPH TOTO
No. 81-398.
Supreme Court of New Hampshire.
August 31, 1983.
*621 Gregory H. Smith, attorney general (Peter W. Mosseau and Brian T. Tucker, assistant attorneys general, on the brief, and Mr. Tucker orally), for the State.
Craig F. Evans, of Durham, by brief and orally, for the defendant.
KING, C.J.
The defendant appeals his conviction for unauthorized possession of a narcotic drug, RSA 318-B:2, I, :26 (Supp. 1981). We affirm the defendant's conviction, vacate the sentence imposed, and remand.
On the morning of April 2, 1981, the defendant, Joseph Toto, took a cab to the Kwiki-Cab Station in Dover and attempted to purchase a bus ticket to Concord, New Hampshire. Soon after the defendant's arrival at the cab station, the manager of the cab company called the Dover Police Department and reported that the defendant was acting suspiciously. At about nine in the morning, a Dover police officer responded to the call and, when he arrived, found the defendant seated in the waiting area with a large green garbage bag in front of him. The defendant was able to produce identification upon request.
The officer testified at a hearing on the defendant's motion to suppress that the defendant appeared to be highly intoxicated, there was an "odor" of alcohol emanating from his breath, his eyes were glassy, and his face was "expressionless." The officer stated that the defendant looked like a man who "had been on a bender." His speech "was slurred and mush-mouthed so it almost sounded like he was talking with marbles in his mouth and couldn't get the words out." *622 In addition, the defendant was unable to walk without assistance. When he attempted to walk a distance of about five feet, he "stumbled right forward and had to grab ahold of [a] post to support himself. . . ."
The manager of the bus station would not sell the defendant a bus ticket or permit him to stay at the station. The police officer testified that he feared the defendant would pass out if he were permitted to leave. As a result, the officer decided to take the defendant into protective custody for the purpose of lodging him at the police station until he was sober. The officer conducted a frisk search of the defendant at the cab station, handcuffed him, and transported him with his garbage bag to the Dover Police Station.
At the police station, the defendant was given dry clothing, and his own clothing, which was wet, was hung up to dry. The officer then began an inventory search of the defendant's belongings, including the garbage bag. In the bag, the officer found 75 to 100 bottles of prescription drugs, as well as watches and jewelry. The defendant was charged with unauthorized possession of a narcotic drug.
The officer testified that when he checked on the defendant shortly after placing him in a cell, the defendant appeared to be dead. The defendant was rushed to the Wentworth-Douglas Hospital, where the doctors pumped his stomach, not knowing what, if anything, he might have ingested.
Prior to trial, the defendant moved to suppress the evidence found in the garbage bag on the ground that the search had been illegal. The Superior Court (Goode, J.) upheld the search as a valid inventory search, and therefore denied the motion. A trial by jury resulted in a verdict of guilty on the charge. At sentencing, the court imposed an extended term of imprisonment pursuant to RSA 651:6 (Supp. 1981), even though no notice of the possible application of this provision had been given to the defendant prior to trial or prior to sentencing. The defendant appealed.
On appeal, the defendant raises four major arguments. First, he argues that the inventory search of his garbage bag violated RSA 172-B:3, VII (Supp. 1981) and the due process clause of the United States Constitution. The defendant argues that RSA 172-B:3, VII (Supp. 1981) prohibits the search of a closed container because, while that section provides that the police may conduct a search of the "person" taken into protective custody to reduce the likelihood of injury, it does not expressly provide that the police may search objects in the possession of that person.
[1] We reject this argument. Through RSA 172-B:3, VII (Supp. 1981), the legislature has expressed its concern that police be permitted *623 to conduct a search in order to reduce the likelihood of injury to themselves and others. The danger of injury arises not only from the person taken into protective custody but also from objects in his possession which may pose a threat of injury to persons even if the object is taken into police custody. We will not interpret this statutory provision so narrowly as to prevent the police from protecting themselves against this danger.
[2] In State v. Harlow, 123 N.H. 547, 551-52, 465 A.2d 1210, 1213 (1983), we held that RSA 172-B:3, VII (Supp. 1981) limits the scope of a search that may be performed on a person taken into protective custody pursuant to RSA 172-B:3 (Supp. 1981). We indicated that a search could be performed either to obtain identification or to reduce the threat of injury to persons as a part of the standard procedure of the police station. Although it appears that a search was not necessary to obtain identification in this case, it was necessary to reduce the likelihood of injury. A large garbage bag could contain a number of objects which would pose such a threat of injury to persons, as for instance, a gun. We therefore hold that the search of the defendant's garbage bag did not violate the permissible scope of searches under RSA 172-B:3, VII (Supp. 1981).
[3-5] Nor did the search violate the due process clause of the United States Constitution. The defendant claims that the fifth amendment establishes a right to be free from unreasonable searches, and therefore that the right to search persons under RSA chapter 172-B (Supp. 1981) must serve a compelling State interest and be narrowly drawn. It is clear that the right to be free from unreasonable searches is fundamental in the sense that it is applicable to the States through the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 650-57 (1961). This right arises from and is defined by the fourth amendment, however, and not by the due process clause of the fifth amendment. It is clear that the inventory search of an arrested individual and his personal effects does not violate the fourth amendment. Illinois v. Lafayette, 103 S. Ct. 2605 (1983); see State v. Levesque, 123 N.H. 52, 455 A.2d 1045 (1983). Under fourth amendment analysis, moreover, we believe that the inventory search of the person and the property of one lodged in jail pursuant to RSA 172-B:3 (Supp. 1981) is permissible for the limited purposes identified in Harlow, even though the person has not been arrested. See United States v. Gallop, 606 F.2d 836, 839 (9th Cir. 1979).
The defendant's second argument is that the police failed to follow certain procedures required by RSA 172-B:3 (Supp. 1981) and that the inventory search of his garbage bag therefore was improper. He *624 argues that the officer taking him into custody was required to have probable cause to believe that the defendant's intoxication was due to alcohol, rather than to drugs, because RSA chapter 172-B concerns only intoxication and incapacitation due to alcohol.
[6, 7] Even assuming, arguendo, that RSA 172-B:3, I (Supp. 1981) requires an officer to have probable cause to believe that a person is intoxicated due to alcohol in order to take that person into protective custody, this standard was satisfied in this case. The evidence introduced in this case indicated that there was an odor of alcohol on the defendant's breath, that his eyes were glassy, that his speech was slurred and that he was staggering in a drunken-like state. A police officer is not required to eliminate completely the possibility that the intoxication was, in fact, due to drugs, and not to alcohol.
[8] The defendant also argues that the officer was required to have probable cause to believe that the defendant was "incapacitated," prior to lodging the defendant in jail. The police officer who took the defendant into protective custody testified that he believed the defendant was "intoxicated" when he took him into custody. The defendant's argument that the State failed to prove that the defendant was "incapacitated" is of no avail, because the defendant could be lodged in jail if the police officer believed that the defendant was "intoxicated," see RSA 172-B:3, I (Supp. 1981), and not "incapacitated." Once lodged in jail he could be subjected to an inventory search for the purposes identified in the statute.
[9] The defendant further argues that the search was invalid because the police department failed to contact medical personnel as required by RSA 172-B:3, III (Supp. 1981). This argument assumes that the police officer believed that the defendant was "incapacitated," and not merely "intoxicated," see RSA 172-B:3, II, III (Supp. 1981). This is not supported by the record.
The defendant's third major argument is that a person who is "incapacitated" as defined in RSA 172-B:1, IX (Supp. 1981) cannot, as a matter of law, act "knowingly" for purposes of RSA 318-B:2, I, :26 (Supp. 1981). There is no indication in the record that the police officer considered the defendant to be "incapacitated," nor did the trial court make any such finding. We therefore need not address this issue.
[10] The defendant's final argument is that the court erred in sentencing him in accordance with RSA 651:6 (Supp. 1981) because neither the State nor the court notified him at any time prior to actual sentencing that this section might be applied. RSA 651:6, II *625 (Supp. 1981) provides for the imposition of an extended term of imprisonment if the court makes certain required findings, and "if notice of the possible application of this section is given the defendant prior to the commencement of trial." (Emphasis added.) The State contends that this notice requirement applies only if the prosecutor requests the extended term of imprisonment. It argues that notice is not required if the judge decides sua sponte to apply the section. We are not persuaded by this argument. The requirement of notice in RSA 651:6, II (Supp. 1981) on its face is not limited to those instances in which the prosecutor seeks application of the statute.
[11-13] Because the legislature has not established any distinction based on the individual invoking the statute, and because application of the statute in both situations may result in a substantial increase in one's penalty, we believe that the notice requirement was intended to apply even when the judge seeks to apply the statute sua sponte. Pretrial notice will give the defendant an opportunity to offer evidence to refute the findings required by subsection one of the statute. Because notice was not given prior to the commencement of trial as required by RSA 651:6, II (Supp. 1981), the trial court erred in sentencing the defendant in accordance with this provision. Accordingly, we reverse and remand for resentencing pursuant to RSA 651:2.
Affirmed in part; reversed in part; and remanded.
BOIS, J., dissented in part; the others concurred.
BOIS, J., dissenting in part:
I concur in the result arrived at in reference to the search and dissent as to the application of the notice requirement of RSA 651:6, II (Supp. 1981). I would hold that the notice requirement applies to the prosecution only and not to the court. To hold otherwise, in my opinion, is an impermissible intrusion into the court's exercise of its discretion in sentencing.
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318 Pa. Super. 526 (1983)
465 A.2d 678
COMMONWEALTH of Pennsylvania
v.
Frederick SCOTT, Appellant.
Supreme Court of Pennsylvania.
Submitted April 7, 1983.
Filed September 9, 1983.
*527 Mitchell S. Strutin, Philadelphia, for appellant.
*528 Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before SPAETH, WIEAND and HOFFMAN, JJ.
WIEAND, Judge:
Frederick Scott entered a counselled plea of guilty to robbery and criminal conspiracy as a result of his participation in the robbery of a member of the Philadelphia Police Department's "Grandpop Squad" on June 14, 1978. He was sentenced on January 9, 1979 to a term of imprisonment for not less than four (4) nor more than eight (8) years. Scott did not file a motion to withdraw his guilty plea or to modify his sentence and did not take a direct appeal. Subsequently, Scott filed a pro se P.C.H.A. petition in which he alleged that his guilty plea had been induced by trial counsel's promise of a less severe sentence and that his counsel had been ineffective because he failed to object when the sentencing court erroneously cited and relied upon an inapplicable sentencing guideline to impose a minimum sentence of four (4) years. Counsel was appointed, and an amended petition was filed. Following an evidentiary hearing before the Honorable Edward J. Blake, the P.C.H.A. petition was dismissed. This appeal followed, in which Scott is represented by new counsel. Because there is merit in appellant's second contention, we remand for resentencing.
Ordinarily, the failure to file a petition to withdraw a guilty plea, combined with the failure to pursue a direct appeal, will bar consideration of the validity of the plea in a subsequent collateral proceeding. Commonwealth v. Knox, 304 Pa.Super. 368, 372, 450 A.2d 725, 727 (1982); Commonwealth v. McGarry, 280 Pa.Super. 527, 529-530 n. 2, 421 A.2d 847, 848 n. 2 (1980); Commonwealth v. Campbell, 269 Pa.Super. 467, 469, 410 A.2d 350, 352 (1979). In this case, however, the record discloses that appellant was not advised of his right to file such motions or of the consequences of a failure to do so. Therefore, appellant is *529 not barred from challenging the validity of his plea in these proceedings. Commonwealth v. Frankhouser, 491 Pa. 171, 176, 420 A.2d 396, 398-399 (1980); Commonwealth v. Brandon, 485 Pa. 215, 217, 401 A.2d 735, 737 (1979); Commonwealth v. Crawford, 285 Pa.Super. 169, 185, 427 A.2d 166, 174 (1981); Commonwealth v. McGarry, supra.
Appellant contends that his guilty plea was involuntary because unlawfully induced by counsel's promise of a two (2) to five (5) year sentence to run concurrently with another sentence to be imposed by a different judge in a separate proceeding. The record of the guilty plea colloquy belies this claim. When asked whether he had been "promised. . . anything in terms of sentence that has influenced your decision to plead guilty[,]" appellant responded that he had not. He agreed with his counsel at that time that the plea being entered was an open plea of guilty and that there had been no agreement concerning the sentence to be imposed. Faced with his own unequivocal denial of the existence of a promise as to sentencing, appellant now suggests that he lied throughout the colloquy in order to insure the acceptance of his plea. However, "[a] criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We cannot permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel." Commonwealth v. Brown, 242 Pa.Super. 240, 247, 363 A.2d 1249, 1253 (1976). Moreover, at the P.C.H.A. hearing the testimony of appellant's trial counsel confirmed that he had made no promise to appellant regarding the length of the sentence. It was also demonstrated, contrary to appellant's assertions, that the Public Defender's file failed to support a promise of a sentence of two (2) to five (5) years. The P.C.H.A. court resolved the credibility issue against appellant and found that no promises had been made by counsel or by anyone else. This finding is fully supported by the record; we will not disturb it on appeal. Commonwealth v. Williams, 310 Pa.Super. 501, 514, 456 A.2d 1047, 1054 (1983). It is by now well *530 established that disappointed expectations will not alone vitiate a guilty plea. Commonwealth v. Waddy, 463 Pa. 426, 429 n. [*], 345 A.2d 179, 180 n. [*] (1975); Commonwealth v. Sanutti, 454 Pa. 344, 347, 312 A.2d 42, 44 (1973); Commonwealth v. Brown, supra 242 Pa.Super. at 247, 363 A.2d at 1253.
Appellant also contends that his trial counsel was ineffective for failing to object when the sentencing court relied upon Section 5 of the Act of November 26, 1978, P.L. 1316, No. 319 (reported in the note following 42 Pa.C.S. § 9721 and entitled "Interim Sentencing Guidelines"), to impose a sentence of imprisonment for not less than four nor more than eight years. This statutory provision became effective January 1, 1979 but had application only to offenses occurring subsequent thereto. Commonwealth v. Garris, 280 Pa.Super. 287, 290, 421 A.2d 726, 727 (1980). It provided an interim sentencing guideline for certain repeat offenders as follows:
(a) Until sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to 18 Pa.C.S. Sec. 1385 (relating to publication of guidelines for sentencing), when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa.C.S. Sec. 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.
Because appellant's offense occurred on June 14, 1978, this section had no application; and the sentencing court was in *531 error when it relied on Act 319 to impose a four to eight year sentence of imprisonment.
The Commonwealth argues that the sentencing court observed merely the prospective nature of the statutory guideline in an effort to bring home to appellant the seriousness of the crime of robbery to which he had entered a plea of guilty and that the sentence was based on other factors. We are unable to accept this contention. That the court relied upon and followed the inapplicable statutory guideline is readily apparent from the record. Not only did the sentencing court recite the applicability of the statutory guidelines after January 1, 1979, but it specifically cited the statute as a reason for its sentence. Thus, the court said:
I also took into account Senate Bill 195, which as to certain target offenses has set a minimum of four years incarceration if there has been a repeated offense. In this case you have been convicted of robbery, as you have been before.
Despite the court's express consideration of an inapplicable statutory provision, appellant's trial counsel did not object or suggest to the court that the statute was inapplicable to the offense for which appellant was being sentenced. There was no reasonable basis for counsel's failure to object to the court's impermissible consideration of the inapplicable sentencing guideline. Compare: Commonwealth v. Garris, supra. It is necessary, therefore, that we vacate the sentence based on improper considerations and remand for resentencing. See: Commonwealth v. Gaito, 277 Pa.Super. 404, 412, 419 A.2d 1208, 1212-1213 (1980).
That portion of the trial court's order denying appellant's P.C.H.A. request to withdraw his plea of guilty is affirmed. The portion of the order denying the request for reconsideration of the sentence, however, is reversed; the judgment of sentence is vacated; and the case is remanded for resentencing. Jurisdiction relinquished.
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