Craig v. Citizens Trust Co.

• Decision Date: 06 May 1940
• Docket Number: 27419.
• Citation: 26 N.E.2d 1006,217 Ind. 434
• Parties: CRAIG v. CITIZENS TRUST CO. et al.
• Court: Indiana Supreme Court

26 N.E.2d 1006

217 Ind. 434

CRAIG v. CITIZENS TRUST CO. et al.

No. 27419.

Supreme Court of Indiana

May 6, 1940

Appeal from Huntington Circuit Court; Oren W. Dickey special judge.

Cook & Bailey, of Huntington, for appellant.

Bowers Feightner & Bowers and Arthur J. Palmer, all of Huntington, and Eggeman, Reed & Cleland, of Fort Wayne for appellees.

SWAIM Judge.

This was an action for the conversion of certain cash and bonds brought by Harriet I. Craig, as executrix of the last will and testament of her brother, Sidney P. Craig, deceased, against the Citizens Trust Company and Allen County Building & Loan Association. The complaint alleged that, at the time of his death, decedent had on deposit in said trust company in a savings account $8,800 and $22,000 of negotiable real estate bonds; that the defendants failed and refused to deliver said cash and bonds to said plaintiff and that said defendant, Citizens Trust Company, wrongfully converted, to its own use, real estate bonds belonging to said estate of the value of $11,000 and cash in the sum of $5,084.22. The defendant, Citizens Trust Company, filed an answer in general denial and a second paragraph alleging payment and satisfaction. At the close of all of the evidence, on motion of the plaintiff, the action was dismissed as to the defendant, Allen County Building & Loan Association. The jury returned a general verdict for the defendant, Citizens Trust Company, and judgment, accordingly, was entered thereon.

The sole error assigned is based on the action of the court in overruling the motion for a new trial. The first ground therefor, discussed by the appellant, is that the verdict of the jury is not sustained by sufficient evidence. Under her points and authorities as to said ground plaintiff sets out numerous abstract statements of law without showing their application to the facts of this case, and very little attempt is made to point out to the court any specific deficiencies in the evidence.

In determining the sufficiency of the evidence to support the verdict on appeal we will consider only the evidence most favorable to the appellee. New York Cent. R. R. Co. v. Thompson, 1939, Ind.Sup., 21 N.E.2d 625. It was admitted by both parties that after the death of the appellant's brother, Sidney P. Craig, the appellee issued a real estate bond to the appellant in the principal sum of $25,000; and that part of the consideration for said bond were bonds in the principal amount of $11,000, which had belonged to the appellant's brother and had been left in the custody of the appellee. It was also admitted that an additional amount of $3,715.78 which said decedent had on deposit was included as a part of the consideration for the $25,000 bond. Photographic copies of the ledger sheets of said account, which were introduced in evidence, showed that $3,715.78 was the correct amount of the decedent's deposit balance at the time of his death. While appellant insists that this deposit was in the appellee trust company, the appellee introduced evidence tending to show that this deposit balance was in a savings account which the decedent was carrying in the Allen County Building & Loan Association. The appellant testified that after her brother died his safety deposit box was opened and that her lawyer said it contained a memorandum listing bonds in the total face amount of $22,000. There was no evidence, however, to show who had made such memorandum. Appellant also testified that there was a list of bonds in the back of her brother's pass book in the hand writing of the employees of the appellee; that this list also showed bonds in the total amount of $22,000; and that the deposit account, as revealed by said pass book showed a balance of something over $13,000. The appellant's entire case was based on the contention that the appellee was bound to account for (1) the amount of bonds which she said the memorandum in the safety deposit box and the list in the back of the pass book disclosed, and (2) the amount of the balance in the savings account which she claimed was shown by said pass book. As against this testimony by the appellant, the receiver of the appellee trust company testified that he had examined the books and records of said trust company and found no deposit account of Sidney P.

Craig. The assistant secretary of the trust company testified that Craig was a depositor in the Allen County Building & Loan Association, but had never had any savings account in the appellee trust company; that the pass book in question was a pass book issued by the Allen County Building & Loan Association; that he had never made any notation in the back thereof of any bond sales to said Craig although he had sold some of the bonds to Craig; that he had made up the ledger sheets, showing the balance of $3,715.78 in Craig's savings account, from the books of said Building & Loan Association; that when the appellant first mentioned the said pass book to him, she said that she did not know where it was; that she could not locate it and asked him to make a search for it at the bank; that he did make such a search and failed to find the book. He also testified that on the day the safety deposit box was opened the appellee and her attorney came to his window in the trust company, showed him the inventory which they had prepared, showing bonds in the amount of $6,000, and asked if he knew of any other property which belonged to the decedent; that he told them that the decedent owned another $5,000 bond, which the trust company had in its possession, and for which he then issued a 'duplicate receipt' to be placed in the safety deposit box. He testified that the trust company kept only a card record of bond sales and that when a bond was taken up by the trust company the card showing its sale to the purchaser was taken out of the file and destroyed; that no leger account of such sales was kept; and that the appellant made no claim, against the trust company, of having more than $11,000 of bonds belonging to the decedent until about one year after decedent died. The attorney who represented the appellant in probating her brother's will and in opening up said estate was present at the time the safety deposit box was opened. He testified that said safety deposit box contained no memorandum listing bonds in the sum of $22,000; that at that time nothing was said about there being such a memorandum; that after the inventory was made all of the papers and records which had been taken out of the box were replaced therein; the box was then locked and the key was given back to the appellant; that the appellant did not suggest to him that the trust company might have more bonds than it had accounted for until in the latter part of 1919 at which time she suggested to said attorney her belief that the trust company might have additional bonds in the sum of possibly $5,000, apparently basing this belief on the thrifty habits of her brother rather than on any record which she had seen. It is also significant that the appellant signed and swore to the inventory of her brother's estate which did not show the additional bonds and cash which she now claims belonged to the brother's estate.

When we consider only the evidence most favorable to the appellee, we find that the verdict of the jury is sustained by sufficient evidence. There was sufficient evidence to support a finding that the appellee had paid and accounted to the appellant for all of decedent's property with which it was chargeable. There was evidence tending to show that at the time of decedent's death he owned only $11,000 of bonds and that in his savings account there was a balance of only $3,715.78. The evidence that these amounts were paid to his estate is undisputed.

Appellant also assigns as a reason for a new trial the refusal of the court to give her tendered instruction numbered 3. The essentials of this instruction were included in instruction numbered 6 given by the court on its own motion. The refusal of the court to give the tendered instruction, therefore, did not constitute error. New York C. & St. L. R. R. v. First T. & Savings Bank, 1926, 198 Ind. 376, 388, 153 N.E. 761; Sterling Fire Ins. Co. v. Comision Reguladora, 1924, 195 Ind. 29, 41, 143 N.E. 2.

Appellant also complains of the giving of instructions numbered 1, 2, 3, 4, 5, 7 and 9 tendered by the defendant. Said instruction numbered 1 told the jury that the appellee trust company was not bound by the acts or conduct of an officer of the Allen County Building & Loan Association, while such officer was acting for such association and not for the trust company; and also that there was no evidence showing or tending to show that the trust company was responsible for the obligations of the savings association. 'Where there is no evidence, whatever, to maintain an issue, it is the duty of the court so to inform the jury. This is not usurping the province of the jury.' Hynds v. Hays, 1865, 25 Ind. 31, 33. It is a correct statement of the law that the actions of an officer of one corporation, while acting solely for that corporation, do not bind another separate and independent corporation.

By said instruction numbered 2 the members of the jury were told that, in determining whether the defendant trust company converted to its own use bonds belonging to said estate, they were not to consider the evidence as to a memorandum which appellant claims was found in the testator's safety deposit box. The instruction stated that said memorandum listed more bonds than were found in the box and that it did not appear from the evidence 'that said memorandum was made by any officer or employee of the defendant or that defendant was in any manner responsible for the existence of that...