Curtis Storage & Transp. Co. v. Rosenberg

• Decision Date: 12 June 1939
• Docket Number: 16100.
• Citation: 21 N.E.2d 440,106 Ind.App. 622
• Court: Indiana Appellate Court
• Parties: CURTIS STORAGE & TRANSPORTATION CO. v. ROSENBERG.

21 N.E.2d 440

106 Ind.App. 622

CURTIS STORAGE & TRANSPORTATION CO. v. ROSENBERG.

No. 16100.

Appellate Court of Indiana, in Banc.

June 12, 1939

Fenton Steers, Beasley & Klee, of Indianapolis, for appellant.

Louis Rosenberg, of Indianapolis, and Hume & Gaston, of Danville, for appellee.

CURTIS Judge.

This was an action brought by the appellee against the appellant and one Joseph A. Blackburn for the value of certain books alleged to have been converted by the appellant and said Blackburn. The cause was submitted to a jury for trial upon the third amended complaint of the appellee to which an answer of general denial was filed, resulting in a verdict in favor of the appellee in the sum of $1646.50 against the appellant upon which verdict a judgment was duly entered. Before the beginning of the trial the cause of action as to Blackburn was dismissed.

The appellant, in due time, filed a motion for a new trial which was overruled. This appeal followed, the only error assigned being the ruling on said motion. The motion for a new trial contained twenty-eight causes or grounds. Those which are presented for review may be summarized as follows: The verdict of the jury is not sustained by sufficient evidence; is contrary to law the amount of the recovery too large; alleged error in refusing to give a peremptory instruction for the appellant both at the close of the appellee's evidence and at the close of all of the evidence; error in the rulings as to the admission and rejection of certain items of evidence and the refusal to strike out the said items of evidence admitted; error in the giving of each of instructions number 6 and 9 given by the court on its own motion and error in the refusal to give each of certain instructions tendered by the appellant.

The evidence following closely the allegations of the complaint and stated most favorably to the appellee as it must be under the rules tended to show that the appellee engaged the Curtis Brothers Transfer Company, a corporation, to bring his books from New York to Indianapolis. These books consisted of his private library composed of some rare and valuable books some of them autographed by the author. After the books were transported to Indianapolis, the appellee engaged the said Curtis Brothers Transfer Company for a consideration to store said books for an indefinite period of time, the storage to be paid at the time the books were removed from storage. A receipt was given the appellee. Shortly thereafter the appellant, the Curtis Storage and Transportation Company took over the business of the Curtis Brothers Transfer Company. A joint petition was filed by these two companies with the Public Service Commission of Indiana and on November 17 1933, authority was granted by said Public Service Commission of Indiana to the appellant to take over the business of the Curtis Brothers Transfer Company. Thereafter, the appellant retained in its employ most of the officers and employees of the former Curtis Brothers Transfer Company and the office freight bills were changed to appellant's name. One Proudy was retained as manager. In October 1934 the appellee and Proudy made an arrangement for the books to remain stored in the office of the appellant, the charges to be paid when the books were taken out. With the petition filed before the Public Service Commission of Indiana, the appellant filed its affidavit in which it stated that it was taking over and succeeding to the business of the Curtis Brothers Transfer Company. After the books in question were stored by the Curtis Brothers Transfer Company and after the appellant had taken over said business the said books were removed by it, together with their other effects to a new location where said books remained in the possession of the appellant and were seen from time to...