Coffey v. Wininger
| Citation | 156 Ind.App. 233,296 N.E.2d 154 |
| Decision Date | 15 May 1973 |
| Docket Number | No. 572A224,572A224 |
| Parties | Lesta Marie COFFEY et al., Defendants-Appellants, v. Roy D. WININGER and Lenore A. Wininger, husband and wife, Plaintiffs-Appellees. |
| Court | Court of Appeals of Indiana |
Frank E. Spencer, Indianapolis, for defendants-appellants.
Robert L. Stevenson, Stevenson & Marshall, Columbus, for plaintiffs-appellees.
Plaintiffs Roy D. Wininger and Lenore A. Wininger (Wininger) were the owners of a tract of land in Brown County, Indiana, which abutted an 8.45 acre tract owned by Lesta Marie Coffey, James W. Coffey and Esta Laverne Berry (all defendants will be collectively referred to in this opinion as Coffey). These two tracts of land bordered State Road 46 near the entrance to Brown County State Park.
State Road 46 is a limited access highway. The tract of land owned by Wininger contained only field entrances onto State Road 46, but Wininger 'thought that there possibly was a commercial entrance' on the property owned by Coffey. Wininger testified that his sole interest was a commercial entrance to the rest of the property. Coffey represented that the 8.45 acre tract definitely had a commercial entrance. In fact, a plat was introduced into evidence, without objection, upon which Coffey had written 'commercial entrance' with an arrow pointing to the location of the same.
In mid-January, 1967, Wininger offered Coffey $8,000 for the 8.45 acre tract. Negotiations continued until February 11, 1967, when Coffey accepted the offer of Wininger to purchase the real estate for $22,000.
After Wininger learned that the 8.45 acre tract had no commercial entrance the present cause of action was commenced. The complaint of Wininger alleged, inter alia, the fraudulent sale of real estate. Trial was to a jury which returned its verdict for the plaintiffs and against the defendants, and assessed plaintiffs' damages in the sum of $19,500. The motion to correct errors filed by defendants-appellants Coffey was overruled and this appeal followed.
On appeal, the first issue argued by Coffey is whether the trial court erred in admitting into evidence plaintiffs' Exhibit No. 7. Plaintiffs' Exhibit No. 7 was a letter dated July 31, 1970, purporting to be from the Seymour District Office of the Indiana State Highway Commission stating that '(t)he opening in the limited access fence on the above Project, right of station 98 75 provides for a field entrance and not a commercial drive.' Coffey contends that the above letter was hearsay.
Clearly, Plaintiffs' Exhibit No. 7 was hearsay under the definition contained in Trustees of Indiana University v. Williams, et al. (1969), 252 Ind. 624, 631, 251 N.E.2d 439, 443, that hearsay is an out-of-court statement offered in court for the truth of the facts asserted therein. The question here is whether the letter (plaintiffs' Exhibit No. 7) is admissible under one of the exceptions to the hearsay rule.
The exception to the hearsay rule here pertinent is that public records prepared by an official pursuant to statutory command or required by the nature of the office are, if properly certified or authenticated, admissible as evidence. See: 2 Jones on Evid. (6th Ed.1972), § 12:15, at 372. Such exception has been codified in Indiana in IC 1971, 34--1--17--7 (Burns Code Ed.), as follows:
'Copies of records in public offices of this state.--Exemplifications or copies of records, and records of deeds and other instruments, or of office books or parts thereof, and official bonds which are kept in any public office in this state, shall be proved or admitted as legal evidence in any court or office in this state, by the attestation of the keeper of said records, or books, deeds or other instruments, or official bonds, that the same are true and complete copies of the records, bonds, instruments or books, or parts thereof, in his custody, and the seal of office of said keeper thereto annexed if there be a seal, and if there be no official seal, there shall be attached to such attestation, the certificate of the clerk, and the seal of the circuit or superior court of the proper county where such keeper resides, that such attestation is made by the proper officer.'
Proof of a lack of record or entry in the public record may be made as follows:
'Records or entries in public offices--Proof of lack of record.--Whenever any records or books kept in any public office of this state or any political subdivision thereof, is admissible for any purpose as evidence in any civil proceedings in any court of this state, or in any hearing or determination before any board, commission or officer of this state or any of its political subdivisions, a written statement signed by an officer or person having the custody of official records or books, or by his deputy, that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, to which the seal of his office shall be annexed, if there be a seal, shall be admissible in evidence in any such civil proceeding, hearing or determination as prima facie proof of the lack of record or entry as therein specified.'
IC 1971, 34--3--17--1 (Burns Code Ed.).
'Records or entries in public offices--Lack of record--Other proof.--Proof of such lack of record or entry as provided in section 1 (34--3--17--1) of this act shall not prevent the proof of any such official records or books or lack of entry therein by any method authorized by an applicable statute or by the rules of evidence at common law and this statute shall be considered and construed as being supplemental thereto and as giving an additional means of proof of the lack of such entry.'
IC 1971, 34--3--17--2 (Burns Code Ed.).
Here, no foundation was laid for the admission of plaintiffs' Exhibit No. 7. Plaintiffs' Exhibit No. 7 was not accompanied by a proper certification that the records of the Indiana State Highway Commission had been searched. The writer of the letter was not called to testify. No proof whatsoever was offered to show the authenticity of the letter except for the signatures affixed thereon. Plaintiffs' Exhibit No. 7 was inadmissible hearsay evidence. See: 5 Wigmore on Evid. (3d Ed., 1940), § 1633(6), at 519; 30 Am.Jur.2d, Evidence, § 996, at 125.
Wininger contends that any error in the admission of plaintiffs' Exhibit No. 7 was harmless under TR. 61, Ind.Rules of Proc., IC 1971, 34--5--1--1, which provides as follows:
There is evidence in the record before us, which is entirely separate from plaintiffs' Exhibit No. 7, from which the jury could have found that no commercial entrance existed upon the property of Wininger. Roy Wininger, on direct examination, testified as follows:
The above quoted testimony was admitted without objection by Coffey.
The erroneous admission of inadmissible hearsay evidence will not be cause for reversal where such evidence is merely cumulative in nature. Harter v. Brindle (1969), 145 Ind.App. 411, 418, 251 N.E.2d 590, 18 Ind.Dec. 677; Bradley v. Phelps (1970), 147 Ind.App. 349, 260 N.E.2d 894, 22 Ind.Dec. 325.
Coffey next contends that the trial court erred in giving to the jury plaintiffs' Instruction No. 4, which provided as follows:
'Misrepresentation of a material fact made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party to his damage, or if made by mistake, and innocently, acted on by the opposite party, to his damage, constitutes legal fraud.'
Fraud may be actual or constructive. Budd v. Bd. of Co. Comrs. of St. Joseph Co. (1939), 216 Ind. 35, 22 N.E.2d 973. Actual fraud is intentional deception. The presence or absence of the intent to deceive distinguishes actual from constructive fraud. Daly v. Showers (1937), 104 Ind.App. 480, 486, 8 N.E.2d 139 (transfer denied).
The essential elements of fraud are a material representation of past or existing facts, made with knowledge (scienter) or reckless ignorance of this falsity, which cause a reliance upon these representations, to the detriment of the person so relying. Middlekamp v. Hanewich (1970), 147 Ind.App. 561, 263 N.E.2d 189, 23 Ind.Dec. 187. See also: Gladis v. Melloh (1971), Ind.App., 273 N.E.2d 767, 27 Ind.Dec. 131 (transfer denied).
Constructive fraud has been defined as 'a breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests.' Budd v. Bd. of Co. Comrs. of St. Joseph Co., supra, at 39 of 216 Ind., at 975 of 22 N.E.2d.
Smart & Perry Ford Sales, Inc. v. Weaver (1971), Ind.App., 274 N.E.2d 718, contains a discussion of the application of the doctrine of...
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