Wilson v. Jerry Miller, Inc.

299 N.E.2d 177, 157 Ind. App. 135, 1973 Ind. App. LEXIS 988
CourtIndiana Court of Appeals
DecidedJuly 31, 1973
Docket2-173A1
StatusPublished
Cited by13 cases

This text of 299 N.E.2d 177 (Wilson v. Jerry Miller, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Jerry Miller, Inc., 299 N.E.2d 177, 157 Ind. App. 135, 1973 Ind. App. LEXIS 988 (Ind. Ct. App. 1973).

Opinion

Hoffman, C.J.

This is an appeal by defendant-appellant Sarah Frances Wilson (Wilson) from a judgment entered in favor of plaintiff-appellee Jerry Miller, Inc., an Indiana Corporation. Miller, in its action, sought recovery of money allegedly had and received by Wilson for the use and benefit of Miller.

Miller asserted in its complaint that Wilson was indebted to it in the sum of $102,847.84 and that such amount was due and unpaid.

The case was tried by the court without the intervention of a jury. In its judgment entered on July 25, 1972, the trial court found that Wilson misappropriated the aforementioned sum from Miller during the years 1985, 1966, 1967, 1968, 1969 and 1970. Damages were awarded for the entire amount sought by Miller. Thereafter, Wilson’s motion to correct errors was overruled and this appeal followed.

The evidence most favorable to the appellee discloses that Wilson had been employed as bookkeeper for Miller from 1954 to 1970, and that she had charge of the office and complete charge of the books but that some of the entries in the books were made by other employees under her supervision.

On March 17, 1970, a check of the corporation’s records by its auditor revealed a bank shortage of from $10,000 to $12,000. Gerald Lee Miller, president of appellee corporation, testified that on March 24, 1970, he spoke to Wilson concerning the shortage and further stated that she had no recollection of its existence. However, according to Miller, Wilson mentioned having written herself four checks for personal use. The next day, upon Miller’s request, Wilson brought him the four checks which totaled $2,414.48. While personally examining the corporation’s inventory sheets, Miller noticed that several number ones had been *138 placed in front of figures entered in the right-hand columns. This conveyed the appearance that more assets were included in the inventory than were actually existent. However, the “ones” were in no discernible handwriting.

A later examination of the corporation’s books by a certified public accountant revealed a number of recorded but undeposited receipts which, together with the bank shortage, amounted to a loss of $100,433.36. This audit showed that the loss was sustained in varying amounts from 1965 through 1970.

Moreover, Bertram J. Carmack, who checked the books, testified that during at least three years the undeposited receipts were balanced by check entries charged to the inventory account. Since no such checks ever reached the bank, Miller’s books balanced and its bank account was reconcilable. Thus, only a careful examination of each entry would reveal any discrepancies.

Also, Carmack stated that the person who made the check entries would have to be the person who had knowledge of the non-deposit at the bank since the entries were made to conceal and offset the missing deposits.

The sum of $102,847.84, which was awarded to Miller, was arrived at through addition of the $100,433.36 loss and $2,414.48, the amount of the four checks written by Wilson.

The first issue is whether sufficient evidence was presented to establish that Wilson had appropriated to her own use the amount of money alleged in Miller’s complaint.

While Wilson admits to a misappropriation of $2,414.48, she asserts that Miller has not established that she misappropriated the much larger amount awarded Miller by the trial court. By reason of this alleged insufficiency of evidence, she contends that such judgment was thereby contrary to law.

Conversely, Miller asserts that the decision of the trial court was supported by sufficient evidence upon all necessary elements of its claim.

*139 Indiana has often reiterated the rule that only in instances in which the evidence is without conflict and can lead to but one result, and the trier of fact has reached an opposite result, will that judgment or verdict be set aside as being contrary to law. Echterling v. Jack Gray Transport, Inc. (1971), 148 Ind. App. 415, 267 N.E.2d 198, 24 Ind. Dec. 682; Nationwide Mut. Ins. Co. v. Day (1967), 140 Ind. App. 564, 224 N.E.2d 520 (transfer denied). Further, this court will not weigh the evidence adduced at trial. Uhlman v. Johnson et al. (1965), 137 Ind. App. 600, 210 N.E.2d 442. And, in reviewing such a case, we may only determine whether there exists evidence of probative value to support the finding of the trier of fact. Cox v. Schlachter (1970), 147 Ind. App. 530, 262 N.E.2d 550, 23 Ind. Dec. 60 (transfer denied); Palmer v. Decker (1970), 253 Ind. 593, 255 N.E.2d 797.

Testimony has established that Wilson had complete charge of the office; that she supervised the records and books of the corporation; that, on occasion, she took the books and inventory sheets home to work on them; that she was authorized to write checks for the corporation; that the right-hand columns of figures on the inventory sheets in question were in her handwriting; that Wilson was employed by Miller as bookkeeper for the entire period during which the loss occurred; and that she made some bank deposits, purchased merchandise and waited on customers. In short, she had considerable authority in her supervisory capacity. Such attributes would aid a person involved in a misappropriation of funds. Moreover, it is improbable that anyone could effectuate such an extensive and long-term scheme without concurrently possessing freedom of movement, considerable responsibility and respect.

*140 *139 The aforementioned evidence, together with testimony that check entries were made in the books to hide the missing *140 deposits that the person withholding the receipts would have had to be the same person who made the balancing check entries; that figures in the right-hand columns of several inventory sheets were raised; and that Wilson did, in fact, write four unauthorized checks “for personal use”, constitutes evidence of probative value from which the trier of fact could have reasonably inferred that Wilson misappropriated the entire amount of Miller’s loss.

The second issue is whether Wilson was denied a fair trial in that she was precluded from denying, at one point in her testimony, the accusations made against her. During the proceedings, Wilson, on direct examination, was asked the following question:

“Q. Did you ever at any time accept or receive or take possession of this hundred thousand dollars that is the subject matter of this law suit?”

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Bluebook (online)
299 N.E.2d 177, 157 Ind. App. 135, 1973 Ind. App. LEXIS 988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-jerry-miller-inc-indctapp-1973.