Foley v. Colby, 1269A246

• Decision Date: 10 February 1971
• Docket Number: No. 2,No. 1269A246,1269A246,2
• Citation: 148 Ind.App. 391,266 N.E.2d 619
• Parties: Margaret C. FOLEY, Appellant, v. Celia COLBY, Appellee
• Court: Indiana Appellate Court

Page 619

266 N.E.2d 619

148 Ind.App. 391

Margaret C. FOLEY, Appellant, v. Celia COLBY, Appellee.

No. 1269A246.

Appellate Court of Indiana, Division No. 2.

Feb. 10, 1971.

Brent A. Barnhart, Raymond I. Klagiss, Kenneth C. Kern & Associates, Indianapolis, for appellant.

Joseph F. Quill, John G. McNutt, Indianapolis, for appellee.

HOFFMAN, Chief Justice.

Plaintiff-appellant appeals from a judgment entered for defendant-appellee at the close of appellant's evidence in an action for damages for conversion of personal property.

The issue presented by this appeal is whether or not appellant's evidence constitutes a prima facie case of conversion.

Appellant filed a complaint for damages and trial was to the court, without a jury. At the conclusion of plaintiff-appellant's evidence the following appears in the record before us:

'MR. KERN: The Plaintiff rests, your Honor.

'THE COURT: Mr. Quill.

'MR. QUILL: If it please the Court, at this time the Defendant would like to move for judgment in favor of the Defendant upon the following grounds and for the following separate and several reasons: * * *.' (Emphasis supplied.)

Following defendant-appellee's oral motion for a judgment there was oral argument by both parties and the court made the following ruling:

'(T)herefore I'll have to sustain the Defendant's motion for a finding. At this time there will be a judgment for the Defendant * * *.'

Thereafter, the trial court entered judgment as follows:

'Come now the parties by counsel, and this cause being at issue is submitted to the Court for trial, finding and judgment; and the evidence being heard, and the Court being duly advised in the premises, now finds for the defendant on the complaint and against the plaintiff for costs herein.

'It is Therefore Considered and Adjudged by the Court that the plaintiff have and recover nothing on the complaint, and that the defendant have and recover of and from the plaintiff costs herein expended and taxed at $6.00.'

Defendant-appellee presented no evidence. Neither did appellee rest her case and, therefore, allow the trial court to weigh the evidence. The trial ended on the trial court's judgment entered after appellee's oral motion for a judgment at the close of appellant's evidence.

Appellant's sole assignment of error is the overruling of her motion for a new trial.

In such case this court may consider only the evidence, together with any reasonable inferences which may be drawn therefrom, most favorable to appellant. We may not weigh the evidence and must exclude all conflicting evidence that is favorable to appellee. Gwaltney Drilling, Inc. v. McKee, Ind.App., 259 N.E.2d 710, 716, 22 Ind.Dec. 48 (1970); Brickman v. Robertson Bros. Dept. Store, etc., 136 Ind.App. 467, 202 N.E.2d 583 (1964); Ross v. Thompson, et al., 128 Ind.App. 89, 146 N.E.2d 259 (1957); Garrett v. Estate of Hoctel, etc., 128 Ind.App. 23, 142 N.E.2d 449 (1957), (transfer denied).

The judgment of the trial court can be sustained only if the evidence viewed in a light most favorable to appellant, together with any legitimate inferences to be drawn therefrom, fails to support one or more of the elements of conversion.

The definition of conversion in Indiana has remained virtually unchanged for many years. This court in Hunter v. Cronkhite, 9 Ind.App. 470, at 471, 36 N.E. 924 at 925 (1894), quoted with approval 4 Am. and Eng.Encyc. of Law, 108, as follows:

"Conversion consists, as a tort, either in the appropriation of the personal property of another to the party's own use and benefit, or in its destruction, or in exercising dominion over it, in exclusion and defiance of the rights of the owner or lawful possessor, or in withholding it from his possession, under a claim and title inconsistent with the owner's."

See also:

Sikora v. Barney et al., 138 Ind.App. 686, 207 N.E.2d 846 (1966), (transfer denied);

Hardy v. Heeter, 120 Ind.App. 711, 96 N.E.2d 682 (1951);

Prudential Ins. Co. of America v. Thatcher, 104 Ind.App. 14, 4 N.E.2d 574 (1937), (transfer denied);

Beaver Products Co. v. Voorhees, 81 Ind.App. 181, 142 N.E. 717 (1924).

The evidence in the record before us, viewed in a light most favorable to appellant, may be summarized as follows:

Appellant was a tenant in appellee's apartment house located in Indianapolis, from September 1967 until September, 1968. Storage lockers located in the basement of the apartment building were for the use of tenants in the building. It was incumbent upon appellant to take a locker not in use and place her own lock on it.

Appellant cleaned an empty locker and placed in it a chiropractic adjusting table, a stepladder, and a trunk containing various other items. Appellant then put her own lock on the storage locker.

In May, 1968, appellant discovered that her lock had been broken and her personal property removed from the locker.

Appellee's custodian testified that he had, at the direction of appellee, broken seven locks and contracted with junk men to haul away the contents of the lockers. The custodian testified that he had posted notices near the mail boxes to the effect that all tenants should put their name and number of their apartment on their lockers. These notices were posted approximately ten days prior to his breaking the locks and having the items removed.

It has long been the law in Indiana that 'the essence of every conversion is the wrongful invasion of the right to, and absolute dominion over, property owned or controlled, by the person deprived thereof, or of its use and benefit.' Seip v. Gray, 227 Ind. 52, at 56, 83 N.E.2d 790, at 792 (1949), and cases there cited.

The evidence in the instant case establishes that appellant's personal property was confined to her storage locker and secured by her lock. Breaking of the lock and disposing of the personal property was a wrongful invasion of the right to, and absolute dominion over, appellant's property. This wrongful invasion, done at appellee's request by her employee, deprived appellant of the use and benefit of her property.

Where possession of the personalty is obtained wrongfully, no demand is necessary prior to commencing suit. Prudential Ins. Co. of America v. Thatcher, 104 Ind.App. 14, 4 N.E.2d 574 (1937), (transfer denied); Salvation Army v. Ellerbush, 87 Ind.App. 682, 161 N.E. 638 (1928); Deeter v. Sellers et al., 102 Ind. 458, 1 N.E. 854 (1885).

Appellant did establish a prima facie case of conversion. Therefore, it was error for the trial court to sustain appellee's motion for a judgment at the close of appellant's evidence.

Judgment reversed and cause remanded with instructions to sustain appellant's motion for a new trial.

SHARP and WHITE, JJ., concur.

STATON, J., concurs with opinion.

STATON, Judge (concurring).

'The definition of conversion in Indiana has remained virtually unchanged for many years.' I concur with Chief Justice Hoffman's statement and the results reached by him in his opinion. However, it does appear to me that something might be gained here by re-examining the segmentation of conversion, and in so doing, separate those segments which are necessary from those which are not necessary to establish a prima facie case in conversion.

The only question presented here on appeal is whether the appellant submitted sufficient evidence to make a prima facie case of conversion.

The appellant's evidence in summary is that she rented an apartment from appellee in the month of September, 1967. Appellant was told that she could have one of the storage lockers in the basement of the apartment building. A storage locker was selected and cleaned out by the appellant. She stored certain items of personal property in the locker and placed a padlock on the gate. Thereafter, upon her return to the locker in the basement one day during the month of May, 1968, she found that the locker was empty. The appellee, through her agent the apartment custodian, caused notices to be posted in the apartment building by the mail boxes. These notices advised all tenants occupying basement lockers of the intended action to be taken by the appellee, which was the cleaning out of all unclaimed lockers. Appellant testified that she had no knowledge of the notice. It does not appear anywhere in the evidence that the appellant was personally notified by the appellee or by the appellee's agent, the custodian. It may be inferred from the evidence that some basement storage lockers had been unopened for a considerable length of time and that the appellee had purchased the apartment building recently and desired to put the basement storage lockers in order for the use of new tenants and for her own information. The appellee's agent-custodian caused seven (7) locks to be broken on storage lockers in the basement. He made arrangements for two (2) junk men to carry away the contents. The custodian had an independent recollection of seeing appellant's chiropractic table being carried out of the building by two junk men. Appellant's trunk was found in the custodian's apartment. The custodian testified that he had found it in the boiler room. The appellant told the appellee's custodian that she valued the items taken from her locker and wanted them returned. She further testified as to the value of the items taken which could be replaced. Some items were irreplaceable.

The gist of 'conversion' is the unauthorized assumption of the powers of the true owner. Casey v. Kastel, 237 N.Y. 305, 142 N.e. 671, 673, 31 A.L.R. 995 (1924). Any distinct act of dominion wrongfully exerted over one's property in denial...