Foley v. Colby

266 N.E.2d 619, 148 Ind. App. 391, 1971 Ind. App. LEXIS 464

• Court: Indiana Court of Appeals
• Decided: February 10, 1971
• Docket: 1269A246
• Status: Published

Opinions

Hoffman, C.J.

Plaintiff-appellant appeals from a judgment entered for defendant-appellee at the close of appellant’s evidence in an action for damages for conversion of personal property.

The issue presented by this appeal is whether or not appellant’s evidence constitutes a prima facie case of conversion.

Appellant filed a complaint for damages and trial was to the court, without a jury. At the conclusion of plaintiff-appellant’s evidence the following appears in the record before us:

“MR. KERN: The Plaintiff rests, your Honor.

“THE COURT: Mr. Quill.

“MR. QUILL: If it please the Court, at this time the Defendant would like to move for judgment in favor of the Defendant upon the following grounds and for the following separate and several reasons: * * (Emphasis supplied.)

Following defendant-appellee’s oral motion for a judgment there was oral argument by both parties and the court made the following ruling:

“[Tjherefore I’ll have to sustain the Defendant’s motion for a finding. At this time there will be a judgment for the Defendant * *

Thereafter, the trial court entered judgment as follows:

“Come now the parties by counsel, and this cause being at issue is submitted to the Court for trial, finding and judgment; and the evidence being heard, and the Court being duly advised in the premises, now finds for the defendant on the complaint and against the plaintiff for costs herein.

“It is Therefore Considered and Adjudged by the Court that the plaintiff have and recover nothing on the complaint, and that the defendant have and recover of and from the plaintiff costs herein expended and taxed at $6.00.”

Defendant-appellee presented no evidence. Neither did appellee rest her case and, therefore, allow the trial court to weigh the evidence. The trial ended on the trial court’s judgment entered after appellee’s oral motion for a judgment at the close of appellant’s evidence.

Appellant’s sole assignment of error is the overruling of her motion for a new trial.

In such case this court may consider only the evidence, together with any reasonable inferences which may be drawn therefrom, most favorable to appellant. We may not weigh the evidence and must exclude all conflicting evidence that is favorable to appellee. Gwaltney Drilling, Inc. v. McKee, 148 Ind. App. 1, 259 N. E. 2d 710, 716, 22 Ind. Dec. 48 (1070) ; Brickman v. Robertson Bros. Dept. Store, etc., 136 Ind. App. 467, 202 N. E. 2d 583 (1964) ; Ross v. Thompson et al., 128 Ind. App. 89, 146 N. E. 2d 259 (1957) ; Garrett v. Estate of Hoctel, etc., 128 Ind. App. 23, 142 N. E. 2d 449 (1957), (transfer denied).

The judgment of the trial court can be sustained only if the evidence viewed in a light most favorable to appellant, together with any legitimate inferences to be drawn therefrom, fails to support one or more of the elements of conversion.

The definition of conversion in Indiana has remained virtually unchanged for many years. This court in Hunter v. Cronkhite, 9 Ind. App. 470, at 471, 36 N. E. 924 (1894), quoted with approval 4 Am. and Eng. Encyc. of Law, 108, as follows:

“ ‘Conversion consists, as a tort, either in the appropriation of the personal property of another to the party’s own use and benefit, or in its destruction, or in exercising dominion over it, in exclusion and defiance of the rights of the owner or lawful possessor, or in withholding it from his possession, under a claim and title inconsistent with the owner’s.’ ” See also: Sikora v. Barney, et al., 138 Ind. App. 686, 207 N. E. 2d 846 (1966), (transfer denied) ; Hardy v. Heeter, 120 Ind. App. 711, 96 N. E. 2d 682 (1951) ; Prudential Ins. Co. v. Thatcher, 104 Ind. App. 14, 4 N. E. 2d 574 (1937), (transfer denied) ; Beaver Products Co. v. Voorhees, 81 Ind. App. 181, 142 N. E. 717 (1924).

The evidence in the record before us, viewed in a light most favorable to appellant, may be summarized as follows:

Appellant was a tenant in appellee’s apartment house located in Indiana, from September, 1967 until September, 1968. Storage lockers located in the basement of the apartment building were for the use of tenants in the building. It was incumbent upon appellant to take a locker not in use and place her own lock on it.

Appellant cleaned an empty locker and placed in it a chiropractic adjusting table, a stepladder, and a trunk containing various other items. Appellant then put her own lock on the storage locker.

In May, 1968, appellant discovered that her lock had been broken and her personal property removed from the locker.

Appellee’s custodian testified that he had, at the direction of appellee, broken seven locks and contracted with junk men to haul away the contents of the lockers. The custodian testified that he had posted notices near the mail boxes to the effect that all tenants should put their name and number of their apartment on their lockers. These notices were posted approximately ten days prior to his breaking the locks and having the items removed.

It has long been the law in Indiana that “the essence of every conversion is the wrongful invasion of the right to, and absolute dominion over, property owned, or controlled, by the person deprived thereof, or of its use and benefit.” Seip v. Gray, 227 Ind. 52, at 56, 83 N. E. 2d 790, at 792 (1949), and cases there cited.

The evidence in the instant case establishes that appellant’s personal property was confined to her storage locker and secured by her lock. Breaking of the lock and disposing of the personal property was a wrongful invasion of the right to, and absolute dominion over, appellant’s property. This wrongful invasion, done at appellee’s request by her employee, deprived appellant of the use and benefit of her property.

Where possession of the personalty is obtained wrongfully, no demand is necessary prior to commencing suit. Prudential Ins. Co. v. Thatcher, 104 Ind. App. 14, 4 N. E. 2d 574 (1937), (transfer denied); Salvation Army v. Ellerbush, 87 Ind. App. 682, 161 N. E. 638 (1928) ; Deeter v. Sellers, et al., 102 Ind. 458, 1 N. E. 854 (1885).

Appellant did establish a prima facie case of conversion. Therefore, it was error for the trial court to sustain appellee’s motion for a judgment at the close of appellant’s evidence.

Judgment reversed and cause remanded with instructions to sustain appellant’s motion for a new trial.

Sharp and White, JJ., concur; Staton, J., concurs with opinion.