Newman v. Newman
| Citation | 48 N.E.2d 455,221 Ind. 432 |
| Decision Date | 12 May 1943 |
| Docket Number | 27847. |
| Parties | NEWMAN et al. v. NEWMAN. |
| Court | Supreme Court of Indiana |
Appeal from Morgan Circuit Court; Omar O'Harrow, Judge.
Todd & Craig, of Indianapolis, for appellants.
Royse & Travis, of Indianapolis, and Homer Elliott, of Martinsville, for appellee.
E Charles Newman instituted this action against his only child appellant Everett E. Newman, whose wife is appellant Daisy N Newman. The plaintiff died after the trial and his widow, Geneva E. Newman, a childless second wife, qualified as executrix of his will and as such was substituted as plaintiff. The object of the action was to set aside a conveyance of real estate and transfers of personal property alleged to have been procured by the son through fraud and duress. There were special findings of fact and conclusions of law with decree granting the relief prayed.
Appellants' main contention is that no fraud was shown. The court found 'that the defendant, Everett E. Newman made certain false and fraudulent representations to the plaintiff E. Charles Newman concerning the condition of his eyesight and that plaintiff would soon become blind and urged plaintiff to transfer his said property to defendant while he could still see * * * that said defendant well knew at the time of making said representations that they were false and fraudulent.' It was also found that the father believed the statements and relying thereon conveyed and transferred his property to the son. In their motion for a new trial appellants challenged the finding as not sustained by sufficient evidence, asserting in their brief that there was no evidence of falsity.
The father, who was 76 years old at the time of the trial, testified as follows: 'We went to an optician and he said you have some blood clots on your eye and I advise you to go to doctor Matthews at the Hume-Mansur building and he is at the present at Hattiesburg, Miss., and we went there and he examined my eyes and he said Mr. Newman you need treatment and he prescribed medicine and I left and he says now you come back and I'll check on you to see how those eyes progress, the eye sight and vision, and as we walked out, E. E. Newman, he walked back, he said 'wait a minute I want to see the doctor' and he walked back and talked privately to him and when he came out he said 'the doctor said it looks very dark, possibly you will go blind and we must hurry up and have this thing straightened out before you go blind, in case you go blind it will be too bad' and that is just about the sum substance of the conversation.' The son denied having any private conversation with the doctor. If there was no such conversation, the report by the son of what the doctor said about blindness, as testified by the father, was false and known by the son to be false when made. While the son also denied making any such report, the court could reject such denial as untrue. What part, if any, of the testimony of a witness is credible must be determined by the trier of facts.
The court found that another false representation with reference to legal advice received by the son was made and relied upon. While there is evidence of its making there is none as to its falsity. Recovery may be based however on only one false representation if the other elements establishing the fraud are present. So the absence of proof as to the second representation is not fatal.
In this connection the court further found that the father also relied upon his son's unfulfilled promise to make certain payments if the property was transferred. We do not think the facts here are like those in Shoup v. Tanner-Buick Co., 1922, 211 Mo.App. 480, 245 S.W. 364, 368, cited by appellants. In that case the court said: So recognizing the true rule the court distinguished the facts before it by the ensuing sentence: 'We think that the representations, if any, as to the agency in the case at bar were merely to a collateral matter.' The representation as to the doctor's prediction of blindness was not collateral but, as the court found, was the basis of and directly resulted in the transfer of the property. We think the evidence was sufficient to sustain the finding. The foregoing discussion disposes also of most of appellant's argument as to error in conclusions of law because it is predicated principally upon the absence of fraud.
Appellants contend that 'there was a contract between the parties which was ratified by decedent' through his acceptance of a few payments upon the sums promised him by the son. There was evidence disclosing that as soon as he realized that he had been defrauded, the father repeatedly demanded restoration of his property. The fact that he received from his son some money representing income of that property may be evidence but is not conclusive of a ratification. Besides, this was a matter of defense to be pleaded and proved. The court's findings are silent on the subject which is equivalent to a finding against appellants who had the burden. Rankin v. McCollister, 1910, 175 Ind. 387, 93 N.E. 209.
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Winfrey v. State Life Ins. Co.
...... Broadcasting, Inc., 1945, 223 Ind. 505, 61 N.E.2d 642;. Metropolitan Life Ins. Co. v. Glassman, 1946, 224. Ind. 641, 70 N.E.2d 24; Newman v. Newman, 1943, 221. Ind. 432, 48 N.E.2d 455; McKee v. Mutual Life Ins. Co. of. New York, 1943, 222 Ind. 10, 51 N.E.2d 474. . . ......