Prudential Ins. Co. of America v. Thatcher
| Decision Date | 18 November 1936 |
| Docket Number | 15306. |
| Citation | 4 N.E.2d 574,104 Ind.App. 14 |
| Parties | PRUDENTIAL INS. CO. OF AMERICA v. THATCHER. |
| Court | Indiana Appellate Court |
Appeal from Howard Circuit Court; Jos. C. Cripe, Judge.
Action by Charles E. Thatcher against the Prudential Insurance Company of America, wherein defendant filed a cross-complaint. Verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
Demand is necessary only as evidence of wrongful conversion when defendant came into possession of property lawfully.
Davis Harrison, of Indianapolis, and Geo. Shenk, of Kokomo, for appellant.
Geo C. Uhlir and Jesse W. Calhoon, both of Kokomo, for appellee.
This is an action in conversion wherein the appellee, plaintiff below, recovered a judgment by the verdict of a jury in the sum of $550 for the alleged conversion by the appellant of certain personal property alleged to be the property of appellee. The complaint was in one paragraph, and the appellant answered in three paragraphs: The first paragraph in general denial; the second paragraph alleging that the appellee in the month of December, 1932, failed, refused, and neglected to perform any of the obligations required of him by a written lease executed by and between appellee and appellant as tenant and landlord; the third paragraph of answer specifically alleging that appellee failed to comply with the terms of the lease in certain particulars. The appellant filed a cross-complaint, but no question is presented by this appeal upon the cross-complaint. The appellee filed a reply in general denial to the second and third paragraphs of answer.
The appellant assigns as error the overruling of the appellant's motion for a new trial, in which the appellant asserts that the court erred: (1) In admitting in evidence Exhibit E, which was a release of a chattel mortgage; (2) that the damages assessed by the jury were excessive; (3) that the verdict is not sustained by sufficient evidence and is contrary to law; (4) in giving to the jury each of the instructions Nos. 7, 8, and 9 tendered by the appellee.
The appellant introduced in evidence Defendant's Exhibit 1, a chattel mortgage recorded on May 24, 1932, given by the appellee to the International Harvester Company to secure the payment of $500, including as security therefor, a Farmall outfit, cows, hogs, wagon, harness, his interest in all crops, and three-fifths interest in the corn. The appellee offered in evidence as a part of his rebuttal Exhibit E which was a release executed by the International Harvester Company for the chattel mortgage previously introduced in evidence by the appellant as Appellant's Exhibit 1, and Exhibit E was executed on February 2, 1934. Appellant's Exhibit 1 was shown to have been a chattel mortgage on part of the property alleged to have been converted, and there was no showing by reason of this chattel mortgage that the title ownership, and possession of the property had been transferred out of the hands of the appellee. So far as the evidence in the record is concerned, the chattel mortgage was merely a lien thereon. There could be no harm to the appellant, therefore, in the admission of the release of this mortgage which was executed during the progress of the trial, and no error was committed by the court in the admission of Exhibit E.
The appellant complains of the court giving instruction No. 7 which informed the jury, in substance: That the parties had made and entered into a farm lease, pursuant to which the appellee, as a tenant, had entered into possession of the farm referred to in the complaint; that during the existence of the lease the plaintiff had raised a crop of corn on this farm; that he had his furniture and household goods located in the house thereon; that he had some potatoes situated in a pit, stored for the winter; that pursuant to the terms of the lease appellee was the owner of three-fifths of all the corn raised upon the farm during the year; that he was the owner of the potatoes and the owner of the furniture; that some time in the winter or early spring of 1933 the appellant, the Prudential Insurance Company of America, took possession of the farm, of the corn, of the appellee's furniture, of the household goods, and of his potatoes and has held continued possession since that time; that under appellee's complaint he has made out a prima facie case and would be entitled to recover unless the appellant has proved the material allegations of its second and third paragraphs of answer by a fair preponderance of all the evidence in the case.
Instruction No. 8 in substance was that if it is found that appellee is entitled to recover, he is entitled to damages as shown by the evidence which will fairly represent the market value of his interest in the corn, the market value of potatoes, and the reasonable value of his furniture at the time of its conversion.
Instruction No. 9 in substance was...
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