Cline v. Sawyer

• Decision Date: 24 September 1979
• Docket Number: No. 5100,5100
• Parties: Donald M. CLINE, Appellant (Defendant), v. Thomas SAWYER and Loeva Sawyer, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 725

600 P.2d 725

Donald M. CLINE, Appellant (Defendant), v. Thomas SAWYER and Loeva Sawyer, Appellees (Plaintiffs).

No. 5100.

Supreme Court of Wyoming.

Sept. 24, 1979.

Stuart S. Healy of Kennedy, Connor & Healy, Sheridan, for appellant.

Bruce P. Badley and Harlan W. Rasmussen of Badley, Rasmussen, Shoumaker & Newton, Sheridan, for appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Appellant-defendant and appellees-plaintiffs entered into an oral contract whereby appellant was to perform plumbing work for appellees in connection with the installation of sewer and water lines in a trailer court being constructed by appellees in Sheridan. Appellees contended that the work was defective and that they were thereby damaged in the amount of $20,930.63. ¹ After a trial to the court, judgment was entered in the amount of $8,400.60 in favor of appellees.

In his appeal from such judgment, appellant alleges error: (1) in denial of appellant's motion to dismiss the complaint (converted to a motion for summary judgment) for a defect in parties in that appellant and his wife were made parties defendant instead of Cline Plumbing and Heating, the corporate entity which carried on the plumbing business ²; (2) in denial of appellant's motion for a change of judge based on an affidavit of prejudice; (3) for failure to enter findings of fact and conclusions of law on specified issues as requested by appellant; and (4) in that the findings of fact and judgment of the court were not supported by the evidence.

We agree with appellant's third contention in that the findings of fact and conclusions of law were inadequate and we remand the case for revision or supplementation thereof. We address the first two contentions of appellant inasmuch as a holding favorable to appellant thereon would require a reversal rather than a remand of the case, but we affirm the trial court in these respects. The remand makes it unnecessary for us to consider the fourth contention of appellant.

CORPORATION AS A PARTY

The only affidavit, deposition or other verified material before the court at the time of its ruling on this issue was an affidavit of appellee Thomas Sawyer in which he stated that appellant had held himself out as an individual doing business as Cline Plumbing and Heating "without any reference to a corporation" at all times during the "dealings" between them. The contract between the parties was not in writing. The corporate name of appellant's business did not include the word "company" or the word "incorporated" or an abbreviation of either of these words. Appellant was the legally required master plumber for the business.

As indicated ante, there is a question as to whether this case was tried as a contract case or as a negligence case, or both.

The rule for tort liability is stated:

"Of course, the individual by whom the tortious act is committed cannot himself escape liability on the ground that he was acting for the corporation. Such individual and the corporation are jointly liable and may be joined as defendants." 19 Am.Jur.2d, Corporations § 1427, p. 823.

The rule for contract liability is stated:

"One who acts as agent for another in making a contract is individually liable thereon if, at the time of making the contract, he fails to disclose his agency and the identity of his principal, regardless of whether or not he was authorized as agent to execute the contract. In such case, the agent is subject to all the liabilities, express or implied, created by the contract, in the same manner as if he were the principal in interest. If the agent would avoid personal liability, the duty is on him to disclose his principal; it is not upon the party with whom the agent deals to discover the principal. * * *" 3 Am.Jur.2d, Agency § 317, pp. 674-675.

"* * * (I)t is the agent's duty to disclose his capacity as agent of a corporation if he is to escape personal liability for contracts made by him." American Rent All, Inc. v. Culotta, La.App., 328 So.2d 743, 744 (1976). See Carlesimo v. Schwebel, 87 Cal.App.2d 482, 197 P.2d 167 (1948); and 19 C.J.S. Corporations § 840.

The record does not contain evidence that appellees knew, or should have known, that they were entering into an agreement with appellant other than in his individual capacity. The trial court properly denied appellant's motion in this respect.

CHANGE OF JUDGE

Appellant filed a motion pursuant to Rule 40.1(b)(2), W.R.C.P. ³ for a change of judge on the grounds that the presiding judge was "biased against" appellant and "in favor of" appellees. Appellant's affidavit filed in support of the motion set forth the following as the reason for his belief "that he cannot receive a fair and impartial trial":

"* * * (I)t has recently come to my attention that the presiding Judge, his Honor Leonard McEwan, and the Plaintiff, in this matter, Thomas Sawyer, have been close personal friends throughout the greater part of their lives; that they attended the University of Wyoming together and were closely associated at the University, and that they may have belonged to the same fraternities and associations; and that his Honor and the said Thomas Sawyer have had and continue to have close political affiliations and social relationships in the Sheridan community."

Appellant's attorney filed an affidavit that a motion for a peremptory challenge under Rule 40.1(b)(1), W.R.C.P. ⁴ was not timely filed ⁵ inasmuch as the information contained in appellant's affidavit had only recently become known to him.

The motion was set for hearing; and while the record does not reflect it, counsel for the parties advised at oral argument that a hearing was held. An order was not entered, but another judge was not called in to try the action.

The affidavit of appellant in support of the motion does not state " sufficient facts to show the existence" of bias or prejudice against appellant. The affidavit alleges that the judge and appellee Thomas Sawyer attended the same university at the same time where "they May have" belonged to the same fraternities or associations. Certainly such does not reflect a prejudgment of this case by the judge. It does not reflect a leaning of his mind in favor of appellees to the extent that it will sway his judgment or to the extent that he would make his decisions in the matter other than on the evidence placed before him. The affidavit further alleges that the judge and appellee Thomas Sawyer "have been close personal friends throughout the greater part of their lives * * * and * * * have had and continue to have close political affiliations and social relationships in the Sheridan community." Again, a prejudgment of the case is not indicated by these relationships, and they do not indicate such inclination toward appellees by the judge as would render him unable to exercise his judicial functions impartially.

The words "bias" and "prejudice" are not synonymous. One cannot be prejudiced against another without being biased against him, but he can be biased without being prejudiced. Prejudice involves a prejudgment or forming of an opinion without sufficient knowledge or examination. Bias is a leaning of the mind or an inclination toward one person over another. The "bias" which is a ground for disqualification of a judge must be personal, and it must be such a condition of the mind which sways judgment and renders the judge unable to exercise his functions impartially in a given case or which is inconsistent with a state of mind fully open to the conviction which evidence might produce. See Littrell v. State, 22 Okl.Cr.App. 1, 209 P. 184 (1921); Valdez v. Glenn, 79 Wyo. 53, 330 P.2d 309 (1958), reh. den. 79 Wyo. 53, 332 P.2d 1119 (1958); People v. Bonnerwith, 69 Misc.2d 516, 330 N.Y.S.2d 248 (1972); Evans v. Superior Court in and for Los Angeles County, 107 Cal.App. 372, 290 P. 662 (1930); Commonwealth Tobacco Co. v. Alliance Ins. Co., 238 Mass. 514, 131 N.E. 213 (1921); Mitchell v. State, 36 Tex.Cr.App. 278, 36 S.W. 456 (1896); Temples v. Central of Georgia Ry. Co., 15 Ga.App. 115, 82 S.E. 777 (1914); Rowe v. State, 15 Ga.App. 660, 84 S.E. 132 (1915); United States v. Irwin, (10th Cir.), 561 F.2d 198 (1977).

A judge would not be very effective or efficient in a community the size of Sheridan ⁶, if he were bound to recuse himself from cases involving those with whom he had "close political affiliations and social relationships" or with whom he had been "a close personal friend throughout a greater part of" his life. There is no more of a disposition for a judge to rule in favor of an acquaintance or friend because of that fact than there is a disposition for him to rule against an acquaintance or friend because of that fact. The fact of friendship could result in a "leaning over backwards" to maintain impartiality, or it could result in the opposite. But an allegation of friendship, without more, is not sufficient to establish that either is likely to happen.

In response to a contention that the judge should be disqualified because of a close personal relationship with an associate of the defendant, the court said in Firnhaber v. Sensenbrenner, U.S.D.C. Wis., 385 F.Supp. 406, 412 (1974):

"* * * If this were the appropriate standard for determining when recusal is necessary, either very few cases could be heard by the federal judiciary, or federal judges would be rendered hermits upon their appointment. * * *"

See Plechner v. Widener College, Inc. (3rd Cir.), 569 F.2d 1250 (1977); and Hirschkop v. Virginia State Bar Ass'n, U.S.D.C. Va., 406 F.Supp. 721 (1975).

Without a valid reason for recusal, a judge has a duty not to recuse himself.

"Recusal and reassignment is not a matter to be lightly undertaken by a district judge. While, in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have concomitant obligation Not to recuse ourselves; absent a valid reason for...