Harris v. Second Nat. Bank of Hamilton, Ohio

• Decision Date: 01 April 1970
• Docket Number: No. 469,No. 1,469,1
• Citation: 146 Ind.App. 468,256 N.E.2d 594
• Parties: Edythe W. HARRIS, Appellant, v. The SECOND NATIONAL BANK OF HAMILTON, OHIO, Executor of the Estate of Edith Weber, Appellee. A 68
• Court: Indiana Appellate Court

Page 594

256 N.E.2d 594

146 Ind.App. 468

Edythe W. HARRIS, Appellant, v. The SECOND NATIONAL BANK OF HAMILTON, OHIO, Executor of the Estate of Edith Weber, Appellee.

No. 469 A 68.

Appellate Court of Indiana, Division No. 1.

April 1, 1970.

LeRoy A. Freiherr, Harry A. Rider, Rider & Freiherr, Indianapolis, for appellant.

Louis A. Weiland, Fred W. Hoffmark, Indianapolis, for appellee; Thomas J. Faulconer, Indianapolis, of counsel.

COOPER, Judge.

This matter comes to us from the Probate Court of Marion County, wherein the appellee, plaintiff below, brought this action against the appellant, defendant below, to recover assets allegedly belonging to the estate of Edith Weber, deceased. The complaint in two paragraphs alleged, first, that assets belonging to the decedent were wrongfully appropriated and converted to the use and benefit of appellant; that such funds were obtained by appellant through undue influence, duress, and fraud; and secondly, that the appellant received funds of the decedent as an agent of the decedent, and used said funds for purposes other than for the decedent.

The appellant filed an answer in two paragraphs, the first directed to the first paragraph of the complaint, and the second directed to the second paragraph of the complaint, both paragraphs being in compliance with Rule 1--3 of the Rules of the Supreme Court of Indiana.

The cause, thus being at issue, was submitted to the court for trial, findings, and judgment.

The trial court made its finding for the plaintiff for $18,834.86 and costs, and entered its judgment thereon.

The appellant's motion for new trial alleged as error, in substance, the following: (1) the decision of the trial court is not sustained by the evidence; (2) the decision is contrary to law; (3) the damages assessed by the court are excessive; (4) error of law in the trial court's overruling of defendant's motion for a finding in its favor; (5), (6), and (7), error of law occurring at the trial in admitting into evidence certain testimony relating to matters occurring prior to the death of the decedent.

The assignment of error on appeal is that the trial court erred in overruling the motion for new trial.

The record reveals that the appellant, Edythe Harris, is the daughter of decedent, Edith Weber. From March 1962 until February 1966, decedent lived with and was cared for by appellant. Appellant managed decedent's personal and business affairs during this period and made certain withdrawals from decedent's bank account under a power of attorney executed by decedent. Upon the death of Edith Weber in February 1966, the appellee was duly appointed and qualified as the executor of her estate, and acting in that capacity filed its complaint against appellant to recover $45,393.39 allegedly belonging to the estate.

Appellant denies misappropriating decedent's funds and claims that all money spent by her was with the knowledge and consent of the decedent.

Appellant argues that the decision of the trial court is contrary to law because it is not supported by sufficient evidence. Appellant states that the burden of proving that the decedent's funds were secured through undue influence, duress, and fraud was on plaintiff-appellee. The appellant alleges that the appellee failed to establish by sufficient evidence any proof of conversion, and that the trial court decision was therefore erroneous.

It is a general rule of law that 'It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on grounds that it is contrary to law.' Pokraka v. Lummus Co. (1952) 230 Ind. 523, 532, 104 N.E.2d 669, 673.

Upon an examination of the record we note that there is conflict in the evidence. This court follows the recognized principle of law that it is the trial court's responsibility to resolve conflicting evidence. In the case of Light, et al v. Lend Lease Transportation Co. (1959) 129 Ind.App. 234, 243, 156 N.E.2d 94, in which the court quoted from the earlier case of Lowman v. Lowman (1941) 109 Ind.App. 163, 33 N.E.2d 780, we find the rule regarding conflict in the evidence stated as follows:

'Under the rules repeatedly laid down by this and the Supreme Court, it is our duty to determine whether there is evidence in the record to sustain the finding of the trial court, and where there is conflicting evidence, even in equity cases, this Court will not determine the credibility of witnesses, nor will it weigh or determine the probative force of conflicting evidence to determine where the preponderance lies. It will only determine whether there is substantial evidence which fairly tends to establish all the material issues and sustain the decision.' Smith v. Hill (1929) 200 Ind. 616, 165 N.E. 911; Carpenter v. Carpenter (1940) 108 Ind.App. 221, 27 N.E.2d 889; Allison v. Boles (1967) 141 Ind.App. 592, 230 N.E.2d 784. (Tr.Den.)

After reviewing the record herein, we find that there was substantial evidence to support the decision of the trial court. We therefore cannot say that the trial court's decision was contrary to law.

Appellant further contends that the decision of the trial court was contrary to law because the appellee made no demand on the appellant for the alleged misappropriated funds prior to filing its complaint and thus had not performed a required condition precedent to this action.

The court, in Butler v. Wolf Sussman (1943) 221 Ind. 47, 50, 46 N.E.2d 243, stated the law on the necessity of a demand as follows:

'The general rule appears to be that replevin will not lie for property lawfully in the possession of another until a proper demand has been made for its delivery. Lewis v. Masters (1846) 8 Blackf. 244; Torian v. McClure (1882) 83 Ind. 310. This rule is based upon the presumption which the law indulges that one who has lawfully come into possession of property which he is not entitled to retain will, upon demand, surrender it to the person entitled thereto and that he ought to be afforded an opportunity so to do without being subjected to the inconvenience and expense of a law suit. 54 C.J., Replevin, § 69b, p. 449.' Wood v. Cohen (1855) 6 Ind. 455; Seibold v. Welch (1922) 78 Ind.App. 238, 135 N.E. 258; Garrison v. Miller (1916) 62 Ind.App. 485, 112 N.E. 22.

In the Hillel v. Julius H. Buettner Furniture & Carpet Company (1916) 62 Ind.App. 481, 113 N.E. 12, the appellant's husband prior to his death purchased furniture on the installment plan; when the appellant's husband failed to make payments, the appellee-furniture company sued for replevin. The court, in ruling that no demand was necessary, stated at pages 484, 485, 113 N.E. at page 13:

'* * * When the property was found in her (appellant's) possession, and default had occurred in the payments, her right to retain the property under such original contract was terminated * * * when appellant removed the same into this state, without the consent of the owner, her act amounted to a conversion of the property and her possession in this state from that time became wrongful, and no demand was necessary before bringing the suit. A demand is not necessary except where a party has possession of the property of another lawfully, and a demand will make the possession unlawful. (Our emphasis.) Cox v. Albert (1881) 78 Ind. 241; Deeter v. Sellers (1885) 102 Ind. 458, 1 N.E. 854; Haffner v. Barnard (1890) 123 Ind. 429, 24 N.E. 152; Hoover v. Lewin (1914) 56 Ind.App. 367, 105 N.E. 400.'

The facts of this case distinguish it from the general rule of law on demand as stated in Butler v. Wolf Sussman (supra). This case is analogous to the Hillel v. Julius H. Buettner case (supra) in that a demand was not necessary because the appellant herein had lost her legal right to possession of the decedent's property. The decedent, Edith Weber, during her lifetime, allowed the appellant to manage her affairs. When Edith Weber died, however, the appellant's lawful possession of the decedent's funds terminated. The assets of the decedent then passed to her estate under the control of the appellee as the executor thereof, who had the legal right to possession. Therefore, we find that no demand was required of appellee to appellant prior to filing this action under such circumstances.

The appellant next contends that the damages assessed by the trial court are excessive. We will not consider the merits of this alleged error in law because appellant has failed to argue this allegation or to cite any supporting authority, and is therefore deemed to have waived such alleged error. In the case of Estate of Alexander v. Alexander (1966) 138 Ind.App. 443, 447, 448, 212 N.E.2d 911, 214 N.E.2d 403, this court stated:

'Specification number 3 in the appellant's motion for new trial is not sustained by cogent argument and the application of authorities in the appellant's brief. The appellant has stated only conclusions and has fallen far short of the requirements under Supreme Court rule 2--17. See Flanagan, Wiltrout & Hamilton, § 2677, Indiana Trial and Appellate Practice, Pocket Parts 1963. There is therefore no question presented for our consideration in this appeal as to specification number 3.'

'A careful consideration of appellant's brief indicates that no argument is presented with respect to propositions 5, 8, 10 and 12 and the same are therefore deemed waived.'

The appellant also contends that the trial court erred at law in overruling her motion for a judgment on the evidence in that appellee failed to make a prima facie case. This court deems appellant to have waived this alleged error of the trial court because the appellant presents no argument or authority to support this allegation. Estate of Alexander v. Alexander (supra).

Appellant next alleges error in the trial court's admitting into evidence the testimony of three devisees, John Weber, Evelyn Weber, and Helen Newman....