Huber v. Huber

• Decision Date: 02 March 1960
• Docket Number: No. 19145,No. 1,19145,1
• Citation: 131 Ind.App. 96,164 N.E.2d 651
• Parties: Christian HUBER, sometimes known as Christ Huber, and Lillian Huber, his wife; Michael Huber and Mary Huber, his wife; Lena Steuer, a widow; Joseph Huber and Gertrude Huber, his wife; Albert Rettig, Jerome Rettig, Wilbur Rettig, Robert Rettig, William Rettig, Irma Rettig, and Elizabeth Rettig Louis; Jessie Huber, widow of William C. Huber, deceased; Virgil Huber, Loretta Darin, Evelyn Boyan, Alvin Huber, Anna Mae Krajewski, Betty Rose Paulson, James Huber, William Huber, Catherine Johnson, Appellants, v. Edwin H. HUBER, Edward Heckelman, Mildred Dockus, Katherine Walter, Ida Claussen, Willard Hein, Charles Huber, and Clestia Milford, Appellees
• Court: Indiana Appellate Court

Page 651

164 N.E.2d 651

131 Ind.App. 96

Christian HUBER, sometimes known as Christ Huber, and Lillian Huber, his wife; Michael Huber and Mary Huber, his wife; Lena Steuer, a widow; Joseph Huber and Gertrude Huber his wife; Albert Rettig, Jerome Rettig, Wilbur Rettig Robert Rettig, William Rettig, Irma Rettig, and Elizabeth Rettig Louis; Jessie Huber, widow of William C. Huber deceased; Virgil Huber, Loretta Darin, Evelyn Boyan, Alvin Huber, Anna Mae Krajewski, Betty Rose Paulson, James Huber William Huber, Catherine Johnson, Appellants, v. Edwin H. HUBER, Edward Heckelman, Mildred Dockus, Katherine Walter, Ida Claussen, Willard Hein, Charles Huber, and Clestia Milford, Appellees.

No. 19145.

Appellate Court of Indiana, Division No. 1.

March 2, 1960.

Richard P. Tinkham, John F. Beckman, Jr., Gerald L. Cooley, Hammond, Tinkham, Beckman & Kelly, Hammond, of counsel, for appellants.

J. Edward Barce and John W. Barce, Kentland, Arthur E. Letsinger and Geo. E. Hershman, Crown Point, for appellees.

RYAN, Judge.

The appellees, who were the plaintiffs below, filed their complaint in three paragraphs against the appellants, the defendants below, to set aside four deeds executed by one Henry J. Huber, conveying four parcels of land in Hammond, Indiana, to the appellants. The first paragraph alleged that the appellants, through the exercise of undue persuasion and importunity and undue corrupt and overpowering influence, procured the deeds conveying the property from Henry Huber; the second paragraph alleged that the defendants fraudulently and with the intent to cheat the appellees, conspired together to induce said Henry Huber to convey said real estate; the third paragraph alleged that the appellants, knowing of the weak and enfeebled condition of Henry Huber, and of his inability to manage his own affairs, induced and persuaded him to execute the said deeds. It was further alleged that the appellants had been managing and collecting rents on said properties, and requested an accounting.

The appellants are all brothers and sisters and in- laws of Henry J. Huber, and the appellees are all nephews and nieces. Trial was had by the court, without the intervention of a jury, and judgment was rendered for the appellees, setting aside the four deeds, and granting a money judgment to appellees for their share of the rentals collected by appellants. The court in its finding stated:

'* * * that the defendant relatives of Henry J. Huber, Deceased, obtained the four deeds of conveyance referred to in the complaint by undue influence as alleged in the Second Amended Complaint; and that the deceased Henry J. Huber * * * was mentally impaired and incapable of properly, intelligently and fairly protecting and preserving his property rights at the time of the execution of the four deeds of conveyance referred to which the Court FINDS were executed without any consideration therefor; * * *'.

Appellants filed their motion for a new trial containing twenty-two specifications, which was overruled, and from which ruling they appealed. We quote the motion for a new trial as set out in appellants' brief, verbatim:

'1. The decision of the court is not sustained by sufficient evidence.

'2. The decision of the court is contrary to law.

'3. Error in the assessment of the amount of recovery in this: The amount of recovery is too large.

'6. Error of law occurring at trial in this: The court erred in refusing to strike the portion of the testimony of the witness, Catherine Huber, called by the plaintiffs, relating to her belief that the decedent, Henry J. Huber, did not know his own sister, Angeline Rettig.

'12. Error of law occurring at trial of this cause in this: The court erred in refusing to strike a portion of the testimony of the witness, Edwin Huber, called by the plaintiffs, relating to his belief that the decedent, Henry J. Huber, didn't seem to know what was going on.

'13. Error of law occurring at the trial of this cause in this: That the court erred in refusing to strike out a portion of an answer of the witness, Edwin Huber, called by the plaintiffs, relating to hearsay testimony that everybody said it was too bad that the man, referring to decedent, Henry J. Huber, was so mixed-up.

'15. Error of law occurring at the trial of this cause in this: That the court erred in permitting the witness, Leo Bonaventura, called by the plaintiffs in rebuttal, to answer over defendants' objections, the following questions propounded by attorneys for the plaintiffs, which said questions, objections, rulings thereon and answers are as follows: (Here follow questions and answers concerning the withdrawal of funds from the account of Henry J. Huber in the East Chicago Federal Savings and Loan Association.)

'16. Error of law in admitting into evidence over the objections of appellants, appellees' Exhibits 10, 11 and 12 showing withdrawals by William C. Huber and Mary Huber from the account in the East Chicago Federal Savings and Loan Association.

'20. Error of the court in permitting the witness, Edith Van Gilder, called by the plaintiffs, to answer certain questions concerning the property of Henry J. Huber in the State of California.

'22. The damages assessed by the court are excessive.'

Specification No. 1 challenges the sufficiency of the evidence to sustain the decision of the trial court. In determining whether there was sufficient evidence to support the decision, it is well settled, that on appeal, this court will consider only that evidence which tends to support the finding, together with all reasonable, natural and logical inferences which may be drawn therefrom. Isenhour v. Speece, et al., 1958, 238 Ind. 293, 150 N.E.2d 749.

The evidence most favorable to the appellees discloses that Henry J. Huber was seventy-nine years of age in June of 1948, when he purportedly executed the deeds in question. Originally a native of Lake County, he and his wife had lived in California for some years prior to his return to Hammond after the death of his wife in 1947. Upon his return to Hammond he took up residence with appellants Michael and Mary Huber.

There was evidence that in May of 1948 he failed to recognize his old home in Hammond; that he couldn't carry on much of a conversation with any of his relatives; that he failed to recognize many of them; that he hid checks in the tops of his socks; that he showed no interest in anything; couldn't carry on a conversation intelligently; that he was childish; that he had a blank stare in his eyes; that he addressed Mary Huber as 'Jo', which was the name of his deceased wife; that when driven around Hammond he would look for Sunset Boulevard, when there was no Sunset Boulevard in Hammond; that he appeared like a child and was bewildered; that in conversation with him you 'felt kind of foolish talking to him because he wouldn't give you any right answers * * *'; that on various occasions the appellants referred to him as being 'all mixed up' and 'nuttier than a loon'.

Charles M. Slater, who was the manager of Harvey Brothers Clothing Store, which was located in a building rented from Henry J. Huber, testified as follows:

'A. I have been negotiating or trying to buy the building since 1936. Well, they turned me down each time because he thought that he gets enough revenue out of the building that he couldn't use the money to better advantage. However, when he came into the store that particular day, the first thing, I saw him, I told him that I would like to buy the...