Chacker v. Marcus

• Decision Date: 29 June 1949
• Docket Number: 17806.
• Citation: 86 N.E.2d 708,119 Ind.App. 672
• Parties: CHACKER et al. v. MARCUS et al.
• Court: Indiana Appellate Court

86 N.E.2d 708

119 Ind.App. 672

CHACKER et al. v. MARCUS et al.

No. 17806.

Appellate Court of Indiana, in Banc.

June 29, 1949

Lee M. Rose, Gary, E. Miles Norton, Crown Point, Cope J. Hanley, Rensselaer, for appellants.

Wildermuth London & Nehrig, Gary, Louis George, Gary, Albert Gavit Gary, for appellees.

BOWEN Chief Judge.

This is an appeal in an action for damages in which the appellants charged the appellees, defendants below, with a conspiracy and with the perpetration of a joint tort against the appellants in the taking of monies and properties belonging to a partnership restaurant business.

The issues were formed on appellants' second amended complaint seeking damages against appellee Marcus, who was one of the partners in the restaurant business, and appellee Lyras, who was employed to assist in the keeping of the records of the business under an allegation that the said Marcus and Lyras conspired to and did keep false books in order that Marcus could and did embezzle $25,000 to $35,000 from the firm, and the separate answers of the appellees denying the allegations of the complaint, and appellee Lyras' affirmative answer and the appellants' reply to appellees' answer.

The cause was submitted to a jury for trial, and at the close of plaintiffs' evidence, the court sustained the appellees' separate motions for directed verdicts in their favor, and judgment was rendered on the jury's subsequent verdict for the appellees, defendants below.

The appellants have assigned as error the action of the trial court in overruling their motions for a new trial. Grounds of the motion for a new trial were that the verdict of the jury is not sustained by sufficient evidence and is contrary to law; and that error of law occurred at the trial in that the court erred in directing the jury to return a verdict against the plaintiffs and in favor of the defendants.

It is well settled that the trial court may, and it is its duty upon proper request, to direct a verdict for the defendant in cases where the evidence most favorable to the plaintiff together with all reasonable inferences which a jury might draw therefrom, is insufficient to establish one or more facts essential to the plaintiff's right of action. Patterson v. Southern R. Co. of Ind., 1912, 52 Ind.App. 618, 99 N.E. 491; Cleveland etc., R. Co. v. Haas, 1905, 35 Ind.App. 626, 74 N.E. 1003; Tabor v. Continental Baking Co., 1941, 110 Ind.App. 633, 38 N.E.2d 257.

The foregoing rule only applies where it clearly appears that the evidence fails to establish one or more of the facts essential to a recovery, and where the facts and the reasonable inferences which may be drawn therefrom are not disputed and where the only possible inference to be drawn therefrom is favorable to the party asking the instructions. Lyons v. City of New Albany, 1913, 54 Ind.App. 416, 103 N.E. 20; Roberts v. Terre Haute Electric Co., 1905, 37 Ind.App. 664, 76 N.E. 323; Cleveland, etc., R. Co. v. Gossett, 1909, 172 Ind. 525, 87 N.E. 723.

The evidence discloses that the appellants, Nick B. Chacker, Christ Baltagis, and Mathew Kypreos were engaged as partners in the operation of the Merchants Restaurant at Gary, Indiana, with one of the appellees, George Marcus. The appellee Lyras was employed to assist the partnership and to come to the restaurant from time to time and to enter from the cash register ribbons each day's receipts of the restaurant in a daybook, and also to enter the firm's disbursements from the cancelled checks and pay out tickets from the cash register. The appellant Chacker was not active in the business and seldom visited the business. The appellant Kypreos cooked in the restaurant, and appellee Marcus and appellant Baltagis both worked in the restaurant. During a part of the time, appellee Marcus had charge of the cash register during the daytime and appellant Baltagis handled it at night. Only Marcus and appellant Baltagis had the combination of the safe.

The register tape and receipted bills were destroyed by Lyras after entries were made with Marcus' knowledge. Lyras wrote the distribution checks to the partners and Marcus delivered them. During the first ten days of September, Cotober, and November of 1944 daily receipts as entered from the cash register tapes were reduced by $100 per day. These amounts were correctly entered in the other book, the ledger, and Lyras' written report to the firm for September, 1944, showed the correct amount. It appears to be undisputed that these entries were made for the purpose of avoiding payment of taxes, and there was no evidence of embezzlement or misappropriation of the funds in these entries.

The appellant, however, insists that the evidence introduced by the plaintiffs did sustain the essential allegations of the complaint in that plaintiffs' Exhibit 15 showed that the profits fluctuated between the time appellee Marcus was in charge of the cash register and when others were exclusively in charge of...