Lincoln Nat. Bank & Trust Co. of Fort Wayne v. Parker

• Decision Date: 26 May 1941
• Docket Number: 16492.
• Citation: 34 N.E.2d 190,110 Ind.App. 1
• Court: Indiana Appellate Court
• Parties: LINCOLN NAT. BANK & TRUST CO. OF FORT WAYNE v. PARKER.

34 N.E.2d 190

110 Ind.App. 1

LINCOLN NAT. BANK & TRUST CO. OF FORT WAYNE v. PARKER.

No. 16492.

Appellate Court of Indiana, in Banc.

May 26, 1941

Gates & Gates, of Columbia City, and Otto E. Grant, Sr., of Fort Wayne, for appellant.

Rex S. Emerick, of Kendallville, and Claud V. Barker, of Albion for appellee.

BEDWELL Judge.

The appellant, Lincoln National Bank and Trust Company of Fort Wayne, filed an action to replevy 24 Hereford heifers alleged to be the property of appellant and located on a farm owned by the appellee, Warren E. Parker. The issues were made by an answer of general denial to appellant's complaint. The issues were submitted to a jury which returned a verdict in favor of the appellee, and appellant, on appeal, is relying upon alleged error of the court below in overruling its oral motion to instruct the jury to return a verdict for it and in overruling its motion for a new trial.

On November 7, 1938, one Joy Smith of Allen County, Indiana purchased of the E & M Cattle Company of Whitley County, Indiana, 60 Hereford heifers, and to secure the purchase price thereof, evidenced by a promissory note, executed to the seller a chattel mortgage thereon. In such chattel mortgage the property was described as follows:

"60 Hereford Heifers Branded--L

"Cattle located in Allen County, Lake Twp. 5 miles South Churubusco, Ind. on the Hildebrandt Road."

On November 9, 1938, such chattel mortgage was duly assigned to appellant and was then duly recorded in Allen County, Indiana, the county where the mortgagor resided and the county where the mortgaged property was then located. At the time of the purchase of the cattle and the execution of the note and mortgage therefor, the cattle were located at the farm of E & M Cattle Company in Whitley County, Indiana, but immediately thereafter they were moved to the farm of the mortgagor in Allen County, Indiana.

On November 23, 1938, appellee purchased 24 head of heifers, at public auction held at a sale barn in Ligonier, Indiana, and on April 29, 1939, appellant demanded the possession of the 24 heifers, so purchased by appellee, as a part of the property covered by its chattel mortgage. A writ of replevin was issued on April 29, and 17 heifers, found in barn of appellee, were seized by the sheriff on such writ.

During the trial one question of fact for determination by the jury was whether the 24 heifers, purchased by appellee, were the identical cattle covered by the chattel mortgage assigned to appellant, and appellant is contending that the evidence is without dispute concerning this issue and that the trial court erred in overruling its motion to instruct the jury to return a verdict for it.

The rules by which we are governed in a determination of this issue are clearly laid down in the case of Haughton v. AEtna Life Insurance Co., 1905, 165 Ind. 32, 73 N.E. 592, 594, 74 N.E. 613, where the court says:

"The Constitution of this state [Art. 1, Sec. 20] provides that, 'in all civil cases, the right of trial by jury shall remain inviolate.' Courts have guarded this right, with scrupulous care, against any encroachment. In all cases triable by jury the jurors are the sole and exclusive judges of the facts proved, and, of necessity, therefore, of the credibility of witnesses and of the weight to be given to their testimony.

"Where upon a material point there is a failure of proof in the evidence of the party having the burden of an issue, the court may, as a matter of law, instruct the jury in favor of the other party to such issue. Where the facts are admitted by the pleadings or otherwise, or where the evidence upon the controlling question is documentary, and its interpretation and construction a matter for the court, and but one conclusion is reasonably deducible therefrom, then in such cases the court may, as a matter of law, direct a verdict in accordance with the evident facts, and in favor of the party having the affirmative of the issue.

"But where a determination of the issue involves the credibility of witnesses, and rests upon inferences and deductions to be drawn from facts proved, it will be an invasion of the province of the jury for the court to direct a verdict."

See, also, Mesel v. Farmers' & Merchants' Bank of Bryant, Ind., 95 Ind.App. 33, on page 43, 178 N.E. 305; State of Indiana v. Kubiak et al., 210 Ind. 479, on page 481, 4 N.E.2d 193.

In considering a motion for such instruction, the court is bound to accept as true all facts the evidence tends to prove and all inferences reasonably deducible therefrom against the party so moving. Farmers' National Bank v. Coyner et al., 44 Ind.App. 335, on page 339, 88 N.E. 856.

Time and again this court and the Supreme Court of this state have determined that they will not weigh conflicting evidence on appeal, nor will they determine the credibility of witnesses. The only circumstance under which this court, on appeal, will weigh evidence of any character is where it can be placed in as favorable a situation as the trial court to correctly weigh it. State v. Davisson, 174 Ind. 705, 93 N.E. 6. When this court says that it will not weigh evidence or determine the credibility of witnesses, it does not mean, only, that it will not weigh the testimony of one witness as against the conflicting testimony of another witness. It also means that it will not weigh one portion of the testimony of a witness as against another portion of conflicting testimony of the same witness. If a particular witness, while testifying, makes assertions that are contradictory, this court, on appeal, will not determine which of the assertions are true. The trial court or the jury trying the cause are in a different situation. They observe the witnesses when they testify, and it is within their province to determine what assertions made by a particular witness are true and what assertions made by the same witness are untrue. Fitch v. Ingalls, 271 Mass. 121, 170 N.E. 833.

The appellant in this cause is contending that if we take the testimony as a whole, it will show conclusively that the 24 head of cattle purchased by appellee were the same cattle that were covered by the chattel mortgage of appellant. At the same time, appellant complains because appellee, by taking isolated statements of witnesses, instead of the testimony of such witnesses as a whole, argued, successfully, to the jury and the court below that the cattle purchased by appellee were not the same cattle that were described in its chattel mortgage. In other words, appellant is asserting that if you take isolated statements of a witness and reject other testimony of the same witness, that there is testimony in the record which would tend to show that the cattle purchased by appellee were not the same cattle described in the chattel mortgage; but that if you take all of the testimony of all of the witnesses and weigh the isolated statements along with other testimony of the same witnesses, that the testimony, as a whole, will show conclusively that the cattle purchased by appellee were identical with the cattle described in the chattel mortgage.

But this court, in deciding whether the trial court erred in overruling the motion for a directed verdict, and in deciding the sufficiency of the evidence to sustain the verdict, does not consider the evidence as a whole. Judge Lairy, in the case of Monfort v. Indianapolis & Cincinnati Traction Co., 189 Ind. 683, on page 686, 128 N.E. 842, 843, has well stated the applicable rule in a case where the trial court directed a verdict in favor of the defendant, in the following language: "In sustaining that motion the court held that there was entire absence of any evidence to support some one or more of the facts essentially necessary to uphold a verdict in favor of appellant. In deciding the question so presented, the trial court was required to consider only the evidence most favorable to the plaintiff, excluding all conflicting evidence favorable to the defendant. All facts supported by such evidence, as well as all facts which can be rightly and reasonably inferred therefrom, must be regarded by the court as proven in passing on the motion to...