Meyer v. Garvin

• Decision Date: 14 November 1941
• Docket Number: 16421.
• Citation: 37 N.E.2d 291,110 Ind.App. 403
• Parties: MEYER v. GARVIN.
• Court: Indiana Appellate Court

37 N.E.2d 291

110 Ind.App. 403

MEYER v. GARVIN.

No. 16421.

Appellate Court of Indiana, in Banc.

November 14, 1941

Davis Pantzer, Baltzell & Sparks and Gustav H. Dongus, all of Indianapolis, for appellant.

Walter Myers and Floyd Burns, both of Indianapolis, Richman &amp Sharpnack, of Columbus, and Walter Myers, Jr., of Indianapolis, for appellee.

FLANAGAN Judge.

Thomas E. Garvin, receiver of the Meyer-Kiser Bank, appellee herein commenced this action against the appellant, Sol Meyer seeking recovery for certain assets of the Meyer-Kiser Bank alleged to have been converted by appellant to his own use while president of said bank.

The complaint was filed in six paragraphs but appellee withdrew the fourth and fifth. Appellant's answer to each of the remaining paragraphs of complaint was, first, general denial, and, second, the six-year statute of limitations. To the second paragraph of answer appellee replied in general denial.

The several paragraphs each averred that appellee was duly appointed receiver of said bank on May 4, 1933, by the Marion Circuit Court; that the Meyer-Kiser Bank was incorporated as a bank of discount and deposit under the laws of Indiana in 1926 and engaged in a general banking business in Indianapolis from that time to the date of the appointment of appellee as receiver; that during all that time appellant was president of the bank; that during that time he converted various assets of the bank to his own use; and that he concealed the fact of converting said property from all persons, and appellee did not discover said conversions until after his appointment as receiver. The paragraphs of complaint differ only in their averments as to the property alleged to have been converted and the times of the conversions.

Paragraph 1 alleges that certain of the property and securities of the bank were kept in the name of Meyer and Kiser, a partnership; and that therefrom appellant, about May 5, 1931, converted $52,000 by contributing it to Meyer-Kiser Corporation; about April 1, 1924, he converted $200,000 by contributing it to Meyer-Kiser Bank Realty Company; and that he also converted other sums believed to total $150,000.

Paragraph 2 alleges that certain of the property and securities of the bank was kept in an account known as Meyer-Kiser Bank Contingent Fund; that therefrom appellant, about May 5, 1931, converted and used $117,720, and at another time, not stated, converted $125,872.82 by using it to purchase stock in the Meyer-Kiser Bank of Miami, which stock was issued in names of members of the Meyer and Kiser families; and that he also converted other sums believed to total $100,000.

Paragraph 3 alleges that appellant converted to his own use funds of the bank in the sum of $111,943.05 by transferring that amount to United Securities Corporation without consideration.

Paragraph 6 alleges that while president of the bank, appellant converted to his own use property of the bank to the extent of $750,000.

The verdict of the jury was for appellee in the sum of $1,208,333.33. Upon remittitur being filed by appellee for the item designated in appellee's first paragraph of complaint as $200,000 contributed to the Meyer-Kiser Bank Realty Company, with interest, or a total of $383,400, the trial court entered judgment on the verdict for $824,933.33.

Alleged errors relied upon for reversal are, (1) overruling appellant's motion to make the complaint more specific, and (2) overruling appellant's motion for a new trial.

Reasons for a new trial duly assigned below and relied on here are, (1) the verdict of the jury is contrary to law; (2) the verdict of the jury is not sustained by sufficient evidence; (3) error of the court in giving on its own motion its instruction numbered 4; (4) error of the court in giving instructions tendered by appellee numbered 10 and 12; (5) error of the court in refusing to give instructions tendered by appellant numbered 1 to 7, inclusive, and 9, 10, 13, 16 and 18; (6) error of the court in allowing to be read in evidence the testimony of appellant given during a hearing in the Marion Circuit Court in June 1933; and (7) error of the court in admitting into evidence appellee's exhibit numbered 16, which purported to be a carbon copy of an affidavit signed by appellant in September 1927 and filed with the Internal Revenue Agent in Charge, Indianapolis.

We first direct our attention to appellant's complaint that the court erred in overruling his motion to make the complaint more specific. Appellant contends that the details of the various alleged conversions are not sufficiently set forth.

Rulings on motions to make more specific are largely in the discretion of the trial court and this court will not consider such ruling cause for reversal unless the trial court is shown to have abused its discretion and that the complaining party has been harmed. Atkinson v. Davis, 1938, 105 Ind.App. 375, 379, 13 N.E.2d 355; Indianapolis Power & Light Company v. Waltz, 1938, 104 Ind.App. 526, 529, 12 N.E.2d 404; Trayser Piano Company v. Kirschner, 1880, 73 Ind. 183, 184.

Section 2-1063 of Burns' Indiana Statutes Annotated 1933, Baldwin's Indiana Statutes Annotated 1934, Section 168, provides that in cases where the proof offered at trial is at total variance with the allegations of a pleading, the variance shall not be deemed material unless the complaining party has been misled to his prejudice in maintaining his action or defense upon the merits; and whenever it is alleged that a party has been so misled that fact must be proved to the satisfaction of the trial court, and thereupon the court may order the pleading to be amended on such terms as may be just.

The reasons which caused the Legislature to enact that statute apply with even greater force to a situation in which no variance exists, but where the complaining party is actually informed as to the charge he is to meet and complains only of the lack of details. Such reasons, without the need of statutory enactment should persuade this court of the absence of harm in a ruling on a motion to make more specific where, as in this case, the complaining party is informed by the pleading of the nature of charges against him, sought no information by interrogatories, makes no claim of surprise or lack of preparation when detailed evidence is introduced in support of the charges, and seeks no time for further preparation when such detailed evidence is introduced but proceeds with his defense in a manner indicating proper preparation. The ruling on the appellant's motion to make the complaint more specific does not constitute reversible error.

Appellant next contends that the evidence is insufficient to sustain the verdict and the verdict is therefore contrary to law. In determining the sufficiency of the evidence it is not our privilege to weigh the evidence but we must consider only the evidence most favorable to the verdict of the jury and all reasonable inferences to be deduced therefrom. From the evidence the jury could find the following facts:

Appellant and his cousin, Sol Kiser, organized the partnership of Meyer and Kiser in 1895. It engaged in the real estate, insurance and brokerage business and speculated in grains and stock until 1906 when the two partners organized the Meyer-Kiser Bank. When the charter of the Meyer-Kiser Bank expired in 1926 they organized the Meyer-Kiser Bank which continued the business of the old bank until May 12, 1931, when liquidators were appointed by the State Banking Department who continued in charge until June, 1933, when appellee was appointed receiver.

At the time of the organization of the original bank in 1906, the partnership of Meyer and Kiser ceased to exist and thereafter all business transacted in the name of Meyer and Kiser was in reality for the bank. In order to continue the...