Cato Enterprises, Inc. v. Fine

• Decision Date: 30 June 1971
• Docket Number: No. 1,No. 1269A229,1269A229,1
• Parties: CATO ENTERPRISES, INC., Appellant, v. Oscar FINE, Doing Business Under the Name and Style of Tri-State Asphalt Company, Appellee
• Court: Indiana Appellate Court

Page 146

271 N.E.2d 146

149 Ind.App. 163

CATO ENTERPRISES, INC., Appellant, v. Oscar FINE, Doing Business Under the Name and Style of

Tri-State Asphalt Company, Appellee.

No. 1269A229.

Appellate Court of Indiana, Division No. 1.

June 30, 1971.

F. Wesley Bowers, Fitzgerald, Buthod, Bowers, Harrison & Kent, Evansville, for appellant.

Howard P. Trockman, Evansville, for appellee.

LOWDERMILK, Judge.

This is an appeal from an action to recover possession of certain real estate in Vanderburgh County and for damages for unlawful retention thereof; and also seeking to restrain the defendant-appellee from dismantling an asphalt plant located thereon and removing it and other equipment.

Defendant-appellee filed a second amended counterclaim in three paragraphs, seeking damages for reasonable value of parts and services in equipping and renovating and asphalt plant; the second paragraph was for reasonable value of asphalt delivered to appellant-plaintiff and the third paragraph was for damages for conversion of personal property. Appellant-plaintiff filed to each paragraph of the second amended counterclaim an answer of denial and admission and a second paragraph alleging full payment to defendant-appellee. Appellant-plaintiff also filed a set off to defendant-appellee's second amended counterclaim, asking a set off for rental of equipment, land and for furnishing of materials.

Appellee recovered on his second amended counterclaim and appellant perfected its appeal on the second amended counterclaim.

We are first confronted with the claims of the respective parties that neither gave a fair statement of the case, as revealed by the transcript. Appellee set forth in his brief his statement of the case and this statement is different from appellant's statement. This court does not have the right to weigh the evidence to determine which party has correctly set out the statement of the case. It is our duty to consider the evidence most favorable to the appellee and, therefore, we will relate the statement of the case following the statement of the appellee and what we understand it to be from the transcript of the evidence. Burris v. Buikema (1966), 139 Ind.App. 333, 202 N.E.2d 593 (Tr. Denied September 26, 1966); Plese v. Plese (1970), Ind.App., 257 N.E.2d 318, 321.

This cause was tried in the Warrick Circuit Court by a jury, which returned a verdict in favor of the plaintiff-appellant on its set off in the amount of $4,840 and a verdict for defendant-appellee on his second amended counterclaim in the amount of $23,713.63. The court entered a judgment on the finding, which judgment reads as follows:

'And come now again the parties on this, the 18th day of March, 1969, and the jury heretofore selected, and now the plaintiff introduces further evidence in rebuttal and rests. And now, the defendant and counterclaimant, Oscar Fine, moves the Court to amend paragraphs I, II and III of his Second Amended Counterclaim by interlineation in order to conform with the proof and evidence submitted at the trial. And the Court being duly advised in the premises now sustains said motion, over the objection of the plaintiff, and authorizes the defendant and counterclaimant to amend said Second Amended Counterclaim by interlineation.

'And now, at the conclusion of all of the evidence, plaintiff files a motion for a directed verdict and the Court being duly advised in the premises now overrules said motion. And now at the conclusion of all the evidence, the defendant, by his counsel, indicates that the defendant no longer seeks possession of the real estate described in plaintiff's complaint, there remaining only the issue of damages to be determined by the jury. And now the plaintiff, further, advises the Court that, with respect to its complaint, no issue of damages was presented by the evidence in respect to plaintiff's complaint for possession and that said request is hereby withdrawn. And now the plaintiff tenders plaintiff's Instructions numbered 1 through 10, inclusive, and the Court indicates that it will give plaintiff's Instructions numbered 3, 4, 5 and 7. And now the defendant tenders Instructions numbered 1 through 16, inclusive, and withdraws Instructions numbered 1, 2, 3, 9, 10, 12, 15 and 16, and the Court indicates that it will give of defendants Instructions Nos. 5, 6 and 14, and that the Court will give further its final Instructions numbered 1 through 5, inclusive. And now the plaintiff objects to the giving of each of the defendant's Instructions numbered 5, 6 and 14, and to the Court's final Instruction No. 2. And now, after final argument and the giving of instructions heretofore indicated by the Court, the jury retires to deliberate and, after due deliberation, the jury returns into open Court their verdict finding for the defendant on his Second Amended Counterclaim the sum of Twenty Three Thousand Seven Hundred Thirteen Dollars and Sixty Three Cents ($23,713.63) and further finding for the plaintiff on its set-off the sum of Four Thousand Eight Hundred Forty Dollars ($4,840.00). and now the Court discharges the jury.

'The jury having returned its verdict, the Court renders judgment thereon in accordance therewith.

'IT IS, THEREFORE, CONSIDERED AND ADJUDGED by the Court that the defendant, Oscar Fine, recover of and from the plaintiff, Cato Enterprises, Inc., on said defendant's Second Amended Counterclaim, the sum of Twenty Three Thousand Seven Hundred Thirteen Dollars and Sixty Three Cents ($23,713.63).

'IT IS FURTHER CONSIDERED AND ADJUDGED by the Court that the plaintiff, Cato Enterprises, Inc., recover of and from the defendant, Oscar Fine, on its set-off the sum of Four Thousand Eight Hundred Forty Dollars $4,840.00).

'IT IS FURTHER CONSIDERED AND ADJUDGED by the Court that the defendant, Oscar Fine, recover from the plaintiff, Cato Enterprises, Inc., in this cause of action the net sum of Eighteen Thousand Eight Hundred Seventy Three Dollars and Sixty Three Cents ($18,873.63), together with the costs in this action laid out and expended by said defendant and counterclaimant, Oscar Fine.

'IT IS FINALLY CONSIDERED AND ADJUDGED by the Court, in view of the withdrawal of the issues of possession of the real estate requested in plaintiff's complaint and damages, that plaintiff be and it is hereby entitled to possession of said real estate and that said plaintiff and the surety on its bond heretofore filed is hereby released and discharged on said undertaking. Said release and discharge of the plaintiff on said bond, however, shall not be deemed a release of said plaintiff from the payment of damages as returned by the jury and as evidenced by the judgment herein.'

Appellant timely filed its motion for a new trial, which was by the court overruled.

The motion for new trial, omitting the memorandum covering the two specifications, namely, the verdict is not sustained by sufficient evidence and the verdict is contrary to law, is in the words and figures as follows, to-wit:

'MOTION FOR NEW TRIAL

'The plaintiff, Cato Enterprises, Inc., moves the Court for a new trial herein upon each of the following separate or several grounds, to-wit:

'(1) The verdict of the jury is not sustained by sufficient evidence. A memorandum is attached hereto specifically stating wherein the verdict of the jury is not sustained by sufficient evidence.

'(2) The verdict of the jury is contrary to law. A memorandum is attached hereto specifically stating wherein in the verdict of the jury is contrary to law.

'(3) The Court erred in permitting the defendant, over the plaintiff's objections, to amend paragraph one of his second amended counterclaim after both parties had rested and all the evidence had been presented.

'(4) Error of law occurring in the trial as follows:

'(a) The Court erred in giving to the jury, at the request of the defendant, each of the defendant's instructions numbered 5, 6, and 14, and to the giving of each of which instructions the plaintiff objected within the proper time after the Court had indicated the instructions it would give to the jury.

'(b) The Court erred in giving to the jury on the Court's own motion the Court's instruction number 2, and to the giving of which instruction the plaintiff objected within the proper time after the Court had indicated the instruction it would give to the jury.

'(c) The Court erred in refusing to give to the jury at the request of the plaintiff each of the written instructions tendered and requested by the plaintiff and numbered one (1), two (2), six (6), eight (8), nine (9) and ten (10).

'(5) Error in the assessment of the amount of recovery, in this, that the amount is too large.'

Appellant's assignment of errors is as follows, to-wit: '(1) The court erred in overrulign appellant's motion for a new trial.'

The facts relative to the issues presented are as follows:

In early 1963 Cato operated the Sunset Drive-In Theater and was desirous of getting the grounds blacktopped, and asked Fine to set up an asphalt plant on Cato's property adjoining the drive-in theater. Fine did not own an asphalt plant or paver. Cato did not have equipment for the laying of asphalt. Fine owned trucks, rollers and graders which he agreed to employ on the job. The parties found a dismantled plant in not too good condition in Kentucky, which they thought could be made to operate. Cato purchased the used plant for $10,450; a used paver for $3,600; a used pay loader for $3,000; in all, $17,050. Cato agreed to pay for the parts and equipment and Fine agreed to install them in the asphalt plant.

Under the terms of their agreement Fine would occupy, rent free, approximately one acre of Cato's ground and be permitted to use the plant and facilities during the week for his own asphalt paving enterprises. Fine agreed that on week ends he would operate the plant, to furnish his own laborers and to blacktop the access roads and elevated parking ramps for the theater, which theater...