In an action for alienation of his wife's affections, the plaintiff recovered judgment against the defendant. The defendant claims a reversal is required because the failure to strike out certain evidence, the insufficiency of the evidence to support a verdict for the plaintiff and the failure of the trial court to set aside the verdict infected the award with prejudicial error.
The questioned testimony came during the plaintiff's main case. He testified to the effect that he observed that his wife, at a time relevant to this litigation and during a period of non-access by him, gained, then suddenly lost, certain physical characteristics comparable to those that had occurred when she had been pregnant with their three children. All of this was testified to without objection.
A question was then propounded concerning the relationship of the time those characteristics were lost and a vacation period the wife was alleged to have taken. This inquiry was objected to as to form because of the use of the word 'pregnant.' The objection was ultimately overruled, in part, at least, because this same phraseology had already been used in previous examination without objection. An objection to the content was unavailable, even if made, since the same subject-matter had already been testified to without objection.
Other than the single objection as to form, the defendant raised no question as to any of this testimony relating to the physical appearance of Mrs. Rash at this time. At the close of the plaintiff's case, however, the defendant moved to have all this testimony stricken. Upon the denial of that motion he moved for a mistrial, which was also refused. At the close of all the evidence he renewed his motion to strike this testimony.
Wednesday, November 19, 2008
Provisions for Providing Compensation to Lessee - Property is Personalty
There are two provisions providing for compensation of the lessee upon termination of the lease in particular fashions. The State has the option to end the lease in two situations. One is, upon due notice, at the close of any term. The other arises if the plaintiff fails to comply with a certain covenant requiring operation of the ski lifts for a certain minimum period. Should the State elect to exercise its right under either of these provisions, it is bound to reimburse the plaintiff for its investment in the facilities according to an agreed payment plan.
But the facilities always remain on the land, and continue to be the property of the State. Should the lease terminate in any other fashion, there is no provision for payment to the plaintiff, but neither is there any right in the plaintiff to remove the lifts. Between the parties, the lifts are irrevocably fixed to the land. The facts confirm the intention expressed by the parties to the lease. This removes the lifts from the class of personalty, and makes them part and parcel of the real estate. Annexation could hardly be more complete. This determination is unaffected by the fact that the State is a party to the lease.
The judgment of the lower court is based upon a finding that this property is personalty. This finding cannot stand. The matter must be referred back to that court for the preparation of a new decree based on a finding that the lift facilities in question are real estate, and are the property of the State of Vermont.
Judgment reversed, and cause remanded for the preparation of a new decree in accordance with the views expressed in the opinion.
But the facilities always remain on the land, and continue to be the property of the State. Should the lease terminate in any other fashion, there is no provision for payment to the plaintiff, but neither is there any right in the plaintiff to remove the lifts. Between the parties, the lifts are irrevocably fixed to the land. The facts confirm the intention expressed by the parties to the lease. This removes the lifts from the class of personalty, and makes them part and parcel of the real estate. Annexation could hardly be more complete. This determination is unaffected by the fact that the State is a party to the lease.
The judgment of the lower court is based upon a finding that this property is personalty. This finding cannot stand. The matter must be referred back to that court for the preparation of a new decree based on a finding that the lift facilities in question are real estate, and are the property of the State of Vermont.
Judgment reversed, and cause remanded for the preparation of a new decree in accordance with the views expressed in the opinion.
Impact of Classification of Lift Facilities on Resolution of Case
The resolution of this case depends upon the classification of the lift facilities as either real property or personal property. This decision is necessarily peremptory, because the facilities are perhaps truly neither, or a little of both. The requirements of such classification has presented such an acute problem in the law, that a special subgrouping has accumulated its own identity as a device to determine which side of the arbitrary boundary between chattels and real estate the nature of a given object places it. This is the law of fixtures. Fixtures are usually classed as real estate; trade fixtures, an exception to the rule, are usually classed as personal property.
When a scheme of classification is used to serve more than one purpose, internal conflicts frequently develop. The object of classification is to define categories so that like objects invariably fall into the same class. But 'likeness' may vary as the purpose for classification varies. The incentive to class an object as either real estate or chattel for tax purposes may call for a result contrary to that arrived at when done in the context of a bailment.
However, in First National Bank v. Nativi certain tests for resolving the classification of things as real or personal property have been set out as general rules: (1) the annexation, actual or constructive, of the article to the real estate; (2) its adaptation to the use of the realty to which it is annexed; and (3) whether or not the annexation has been made with the intention to make it a permanent accession to the freehold. By applying these tests in the first instance, we can decide what the character of the property at issue is under the law generally, without the pressures brought to that determination by possible tax consequences or the identity of the parties.
When a scheme of classification is used to serve more than one purpose, internal conflicts frequently develop. The object of classification is to define categories so that like objects invariably fall into the same class. But 'likeness' may vary as the purpose for classification varies. The incentive to class an object as either real estate or chattel for tax purposes may call for a result contrary to that arrived at when done in the context of a bailment.
However, in First National Bank v. Nativi certain tests for resolving the classification of things as real or personal property have been set out as general rules: (1) the annexation, actual or constructive, of the article to the real estate; (2) its adaptation to the use of the realty to which it is annexed; and (3) whether or not the annexation has been made with the intention to make it a permanent accession to the freehold. By applying these tests in the first instance, we can decide what the character of the property at issue is under the law generally, without the pressures brought to that determination by possible tax consequences or the identity of the parties.
Tuesday, November 18, 2008
Court Grants Defendants Permission to Introduce Evidence of Membership
The trial court permitted defendants to introduce evidence over objections by plaintiff that theaters with which Local 162 has closed-shop contracts were members of interstate chains. The evidence indicated that different theaters were members of chains such as Fox West Coast, Inter-Mountain Fox Stanley Werner Theatres (a chain of about 200), National Theatres (a chain of about 425), Loew's, Incorporated (a chain of about 300), Paramount-Dumont (a chain of about 250), and PKO (a chain of about 200). It was estimated that 30 per cent of the theaters in San Francisco were connected with interstate chains. This evidence was undisputed.
The defendants also submitted proposed amendments to the findings of fact and conclusions of law that 'said motion picture theaters are engaged in and affect interstate commerce; that said employers are engaged in commerce within the meaning of the Labor Management Relations Act' and that 'sole and exclusive jurisdiction for any claimed unlawful activities of Local 162 falls under the Labor Management Relations Act.'
The fact that there is no evidence or finding that the Center Theater was engaged in interstate commerce does not make the action local in nature, for plaintiff could have been displaced from any theater by a member of Local 162 under the contracts. And the refusal of Local 162 to dispatch plaintiff to suitable employment is a refusal as to all the theaters. The discrimination caused by Local 162 applies to all theaters, for no theater will hire plaintiff unless he is dispatched by Local 162. Moreover, plaintiff's prayer substantiates the involvement of all theaters, for he prays for a mandatory injunction 'compelling defendants forthwith to dispatch plaintiff to suitable employment as a moving picture machine operator or projectionist within the jurisdiction of Local 162,' which involves all the theaters in San Francisco, and in the alternative for an injunction to prevent defendants from interfering with plaintiff's right to employment at the Center Theater in the City and County of San Francisco or at any other motion picture theater in said City and County. The involvement of all theaters is further emphasized by plaintiff in his Supplemental Memorandum wherein he states: Here the entire controversy is between Thorman and the union and that he (plaintiff) is not suing to get back a job at Center Theater. Thus the Union's unfair labor practice, if any, encompasses all the theaters in San Francisco, and plaintiff so alleges.
The defendants also submitted proposed amendments to the findings of fact and conclusions of law that 'said motion picture theaters are engaged in and affect interstate commerce; that said employers are engaged in commerce within the meaning of the Labor Management Relations Act' and that 'sole and exclusive jurisdiction for any claimed unlawful activities of Local 162 falls under the Labor Management Relations Act.'
The fact that there is no evidence or finding that the Center Theater was engaged in interstate commerce does not make the action local in nature, for plaintiff could have been displaced from any theater by a member of Local 162 under the contracts. And the refusal of Local 162 to dispatch plaintiff to suitable employment is a refusal as to all the theaters. The discrimination caused by Local 162 applies to all theaters, for no theater will hire plaintiff unless he is dispatched by Local 162. Moreover, plaintiff's prayer substantiates the involvement of all theaters, for he prays for a mandatory injunction 'compelling defendants forthwith to dispatch plaintiff to suitable employment as a moving picture machine operator or projectionist within the jurisdiction of Local 162,' which involves all the theaters in San Francisco, and in the alternative for an injunction to prevent defendants from interfering with plaintiff's right to employment at the Center Theater in the City and County of San Francisco or at any other motion picture theater in said City and County. The involvement of all theaters is further emphasized by plaintiff in his Supplemental Memorandum wherein he states: Here the entire controversy is between Thorman and the union and that he (plaintiff) is not suing to get back a job at Center Theater. Thus the Union's unfair labor practice, if any, encompasses all the theaters in San Francisco, and plaintiff so alleges.
Court Cites Linggi for Action to Condemn Right of Way
In Linggi v. Garovotti the court, in an action to condemn a right of way for a sewer line over adjoining land used for residential purposes, held that the Code of Civil Procedure, which states the requirements of the complaint in an eminent domain action, specifies only that the plaintiff must allege his right to take the property for public use; that in addition, the Code of Civil Procedure requires the condemner to show that the use to which it is to be applied is one authorized by law and that the taking is necessary to such use; that this section must be construed in conjunction with section 1244; that a statement of necessity is an essential element of the complaint, and that a general allegation of necessity is sufficient. It is our view that the complaint herein contains all of the necessary allegations to state a cause of action in eminent domain.
Appellant next contends that the trial court abused its discretion in denying her motion for a continuance of the trial date. The record shows in this connection that the trial of the action was commenced on July 23, 1956; that on that date the defendant filed a notice of motion to continue the trial for three weeks on the ground that an appraiser for the defendant had become unable to act because of a sudden injury which occurred on July 18, 1956, and that, therefore, the defendant was not ready for trial. It further appears that this appraiser was not employed by the defendant until one week before the trial; that the affidavits in support of the motion did not set forth the exact nature of the testimony sought to be produced by the appraiser; that the defendant had three qualified real property appraisers who testified in her behalf at the trial; that two of these appraisers had extensive appraisal experience in Orange county and made a thorough and extensive investigation of the values of property to which they testified.
Appellant next contends that the trial court abused its discretion in denying her motion for a continuance of the trial date. The record shows in this connection that the trial of the action was commenced on July 23, 1956; that on that date the defendant filed a notice of motion to continue the trial for three weeks on the ground that an appraiser for the defendant had become unable to act because of a sudden injury which occurred on July 18, 1956, and that, therefore, the defendant was not ready for trial. It further appears that this appraiser was not employed by the defendant until one week before the trial; that the affidavits in support of the motion did not set forth the exact nature of the testimony sought to be produced by the appraiser; that the defendant had three qualified real property appraisers who testified in her behalf at the trial; that two of these appraisers had extensive appraisal experience in Orange county and made a thorough and extensive investigation of the values of property to which they testified.
Legislature Grants Water District Right of Eminent Domain
By the provisions of this act the legislature has declared that the water district shall have and exercise the right of eminent domain for the purpose of obtaining real property to construct and operate spreading grounds to replenish the underground water basin within said district or to augment the common water supplies thereof. The legislative grant of the right of condemnation of property for use as spreading grounds is a legislative declaration that such use is a public use as defined herein. The replenishment of an underground water basin through the use of spreading grounds concerns the whole community, promotes the general interest in its relation to a legitimate object of government, and is a public use within the meaning of article I, section 14, of the Constitution. The trial court's finding that the use and purposes for which the defendant's property is sought to be condemned is a public use authorized by law is supported by the record.
Resolution No. 326 of the Board of Directors of the district was introduced in evidence. The provisions of section 2 of the Orange County Water District Act relative to the power of the district to exercise the right of eminent domain to acquire spreading grounds were recited therein and it was found and determined that the public interest and necessity requires the acquisition, construction and completion of a spreading ground which is necessary to replenish the underground water basin within said district and to augment the common water supplies of the district. It was further found and determined that said public interest and necessity require that the district acquire title to defendant's property. The resolution further authorized the bringing of an action in condemnation and the taking of possession.
Resolution No. 326 of the Board of Directors of the district was introduced in evidence. The provisions of section 2 of the Orange County Water District Act relative to the power of the district to exercise the right of eminent domain to acquire spreading grounds were recited therein and it was found and determined that the public interest and necessity requires the acquisition, construction and completion of a spreading ground which is necessary to replenish the underground water basin within said district and to augment the common water supplies of the district. It was further found and determined that said public interest and necessity require that the district acquire title to defendant's property. The resolution further authorized the bringing of an action in condemnation and the taking of possession.
Monday, November 17, 2008
Lawsuit Against Affiliate of Moving Picture Machine Operators of the United States and Canada
The fact that the defendant is affiliated with the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, also a defendant herein, and presumably might make the effect of the limitations imposed on the plaintiff's employment felt on a nationwide scale is of no consequence. The employment involved in the present case concerned only the Center Theater in the City and County of San Francisco and there is no hint that the business of that employer affected interstate commerce. Accordingly the dispute is not one within the cognizance of the National Labor Relations Board and the state courts are not deprived of their jurisdiction to resolve the controversy and to award equitable relief and damages for tortious conduct.
It is clear that the plaintiff's cause of action falls within the principles announced in James v. Marinship Corp. and that mandamus is a proper remedy. The defendants claim, however, that in determining the plaintiff's loss of earnings the trial court failed to take into consideration earnings by the plaintiff in other than theater employment, and that such loss of earnings was based in part on overtime work available at the Center Theater whereas the plaintiff's health would not have permitted him to perform such work. It appeared that the plaintiff had earnings from other than theater work both before and after his discharge from the Center Theater. The court awarded damages based upon the difference in the plaintiff's actual earnings from theater employment and the actual earnings of the projectionist who replaced him at the Center Theater during the period involved. This was a reasonable and proper basis to award damages. The findings of fact and conclusions of law are essentially in accordance with the allegations of the amended complaint as to the right to the writ of mandate and the award of damages and there is substantial evidence in support thereof.
It is clear that the plaintiff's cause of action falls within the principles announced in James v. Marinship Corp. and that mandamus is a proper remedy. The defendants claim, however, that in determining the plaintiff's loss of earnings the trial court failed to take into consideration earnings by the plaintiff in other than theater employment, and that such loss of earnings was based in part on overtime work available at the Center Theater whereas the plaintiff's health would not have permitted him to perform such work. It appeared that the plaintiff had earnings from other than theater work both before and after his discharge from the Center Theater. The court awarded damages based upon the difference in the plaintiff's actual earnings from theater employment and the actual earnings of the projectionist who replaced him at the Center Theater during the period involved. This was a reasonable and proper basis to award damages. The findings of fact and conclusions of law are essentially in accordance with the allegations of the amended complaint as to the right to the writ of mandate and the award of damages and there is substantial evidence in support thereof.
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