Devitt v. Manulik

• Decision Date: 27 February 1979
• Citation: 410 A.2d 465,176 Conn. 657
• Court: Connecticut Supreme Court
• Parties: Catherine DEVITT v. John C. MANULIK.

Page 465

410 A.2d 465

176 Conn. 657

Catherine DEVITT v. John C. MANULIK.

Supreme Court of Connecticut.

Argued Dec. 13, 1978.

Decided Feb. 27, 1979.

Anthony J. Lasala, New Haven, with whom was David M. Reilly, Jr., New Haven, for appellant (plaintiff).

John J. Resnik, New Haven, with whom, on the brief, was David A. Sweeny, New Haven, for appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

COTTER, Chief Justice.

The plaintiff brought this action against her brother, the defendant, claiming damages for the conversion of a savings bank passbook allegedly belonging to her. From a judgment rendered for the defendant, the plaintiff has appealed to this court.

The finding, as corrected to include relevant facts which a review of the parties' joint appendix reveals were admitted by the defendant, discloses the following: In 1941 John Manulik, Sr., the parties' father, opened a savings account in the Connecticut Savings Bank of New Haven. On January 16, 1967, he changed the account to read "John Manulik or Catherine M. Devitt" so that the funds contained therein were payable to either of them or to the survivor. The plaintiff's father retained possession of the passbook until his death on January 30, 1969, and the plaintiff made no withdrawals from the account during that period. Following her father's death, the plaintiff had possession of the passbook in question which, at that time, contained a balance of $7907.99.

Thereafter, on April 1, 1969, the plaintiff closed the account and, with those funds, opened a new survivorship account in her name and in the name of the defendant. The defendant's name was added to the plaintiff's account solely for the purpose of allowing either the plaintiff or the defendant to withdraw money needed to provide for their ailing mother. At the time the joint account was created, the defendant neither believed the money was his, nor understood the creation of the account to be a gift from the plaintiff. In fact, the defendant admitted at trial that the plaintiff had not disclosed she was making a gift of the passbook when the account was opened. Moreover, although the court found that the passbook was "kept" at the defendant's home, ¹ circumstances as to the manner in which he may have obtained possession were never established.

In any event, it is undisputed that, after their mother's death, the plaintiff and defendant went to the office of the probate judge for West Haven to discuss the preparation of forms relating to the succession tax return for their mother's estate and presented him with the passbook in question. Following the judge's review of all the documents, the defendant took the passbook and put it in his pocket. On the next day, the defendant withdrew the money from that account, which contained at that time $5826.71, and transferred that amount to his own account where it has since remained.

On the basis of the above, the plaintiff brought the present action for conversion seeking $6000 in compensatory damages and $3000 in exemplary damages. Conversion is usually defined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights. Moore v. Waterbury Tool Co., 124 Conn. 201, 209, 199 A. 97, 100. " 'It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.' " Pollock's Law of Torts, p. 290. Gilbert v. Walker, 64 Conn. 390, 394, 30 A. 132. VanDerlip v. VanDerlip, 149 Conn. 285, 289, 179 A.2d 619; 18 Am.Jur.2d, Conversion, § 1. Although proof of absolute and unqualified title is, of course, sufficient, proof of an immediate right to possession at the time of conversion is all that is required in the way of title or possession to enable the plaintiff to recover. Healey v. Flammia, 96 Conn. 233, 235, 113 A. 449; Barker v. Lewis Storage & Transfer Co., 79 Conn. 342, 345, 65 A. 143.

The defendant claims that the savings account funds, which originally were in the father's name, did not accrue to the plaintiff after their father's death since there was no intention by the father to make a gift to her. Such an assertion is without merit in view of the provisions of § 36-3 of the General Statutes as they existed at the time. The plaintiff was a surviving codepositor on the joint account with her father. In the absence of fraud or undue influence, which the defendant does not claim in the present case, § 36-3 at that time gave to the survivor an irrebuttable presumption of ownership in such funds. Grodzicki v. Grodzicki, 154 Conn. 456, 462, 226 A.2d 656. See § 36-3 as quoted in Grodzicki, pp. 460-61. ² Upon the death of her father, therefore, the plaintiff acquired title to the savings account in question.

Having acquired sole title to the funds, however, the plaintiff thereafter closed that account in 1969, and opened a new survivorship account in her name and that of the defendant. The alleged conversion of those funds by the defendant took place after the establishment of that new account and during the plaintiff's lifetime.

General Statutes § 36-3, which, at the time in question, established the plaintiff's sole right to ownership of the funds following the death of her father, in no way affected the inter vivos interests of the parties in the second survivorship account which the plaintiff created. " '(A)lthough the survivorship question is settled (by the statute) . . . the question of the donee's inter vivos interests is not answered, and the courts must once again look to their common law.' Comment, 'Property Joint Bank Accounts The Donee's Inter Vivos Interest,' 60 Mich.L.Rev. 972, 981; see Kepner, 'Five More Years of the Joint Bank Account Muddle,' 26 U.Chi.L.Rev. 376, 396, 397." Grodzicki v. Grodzicki, supra, 462, 226 A.2d 659; see Sadofski v. Williams, 60 N.J. 385, 393-94, 290 A.2d 143. The defendant does not claim that the evidence presented at trial demonstrated that the creation of the joint account constituted a valid gift inter vivos from the plaintiff. In fact, as noted above, the defendant's testimony directly contradicted such a claim. Rather, the thrust of the defendant's case was that the funds in question never vested solely in the plaintiff after the father's death. As we have indicated, however, the provisions of General Statutes § 36-3 in effect at the time dispose of such an argument under the circumstances...