New York Cent. R. Co. v. Buckley Rubber Co.

• Decision Date: 02 November 1933
• Docket Number: No. 14496.,14496.
• Citation: 99 Ind.App. 191,187 N.E. 353
• Parties: NEW YORK CENT. R. CO. v. BUCKLEY RUBBER CO.
• Court: Indiana Appellate Court

99 Ind.App. 191

187 N.E. 353

NEW YORK CENT. R. CO.

v.BUCKLEY RUBBER CO.

No. 14496.

Appellate Court of Indiana, in Banc.

Nov. 2, 1933.

Appeal from Steuben Circuit Court; Clyde C. Carlin, Judge.

Action for conversion by Buckley Rubber Company against the New York Central Railroad Company, which filed a counterclaim. From an adverse judgment, defendant appeals.

Reversed, with instructions.

Townsend, Thomas & Hilgemann, of Fort Wayne, and Bertrand Walker, of Chicago, Ill., for appellant.

Atkinson & Husselman, of Auburn, for appellee.

BRIDWELL, Judge.

Appellee brought this action against appellant to recover damages for the conversion of a calender for processing rubber, alleged to be of the value of $2,300. The complaint was answered by a general denial and a counterclaim, the counterclaim seeking to recover the sum of $2,565.60 alleged to be due and owing to appellant from appellee for storage of parts of the calender referred to in the complaint, which parts, it is alleged, weighed eight tons, and were left by the appellee upon the premises of appellant from November 17, 1926, when the car was unloaded by appellee, until the 28th day of August, 1928. The case was tried by a jury. The verdict returned was for the appellee on its complaint for $1,100, for appellant on its counterclaim for $24, and for a balance in favor of appellee of $1,076. Appellant filed its motion for a new trial alleging as reasons therefor that the verdict for the appellee is not sustained by sufficient evidence; that it is contrary to law; that the damages awarded to appellee are excessive; error in the assessment of the amount of recovery for the appellee, in that the same is too large; error in the assessment of the amount of the recovery for the appellant on its counterclaim, in that the same is too small; that the verdict on the counterclaim of the appellant is contrary to law; error in the giving of certain instructions to the jury; and error in refusing to give certain instructions tendered by the defendant. This motion was overruled and appellant excepted. Judgment in favor of appellee for $1,076 was rendered on the verdict, and this appeal followed; the appellant assigning as error the overruling of its motion for a new trial.

[1][2] It appears from the evidence that appellee purchased the calender alleged to have been converted at Springfield, Ill., in the fall of 1926 and caused it to be transported by railroad to Auburn, Ind. It weighed approximately 28 tons and was shipped “knocked down.” When the car in which it was shipped reached its destination, over appellant's railroad, it was placed by appellant on a “team track” near the plant of appellee. Appellee accepted the shipment, paid the freight, and unloaded the calender; the work of unloading being completed on November 17, 1926. Appellee then caused most of the parts constituting the calender to be placed in its plant, which was adjacent to appellant's right of way, but left upon said right of way five pieces or parts of said calender. These parts remained upon the right of way until the 25th day of August, 1928, at which time they were removed therefrom by a “junk dealer,” to whom appellant gave the parts if he would bear the expense of removal.

Appellee's complaint alleges that appellant converted the entire calender, and the theory...