A. S. C. Corp. v. First Nat. Bank of Elwood, 29965

Decision Date01 June 1960
Docket NumberNo. 29965,29965
Citation167 N.E.2d 460,241 Ind. 19
PartiesA. S. C. CORPORATION, Appellant, v. FIRST NATIONAL BANK OF ELWOOD, Walter F. Busch and Cecil L. Slavens, Appellees.
CourtIndiana Supreme Court

Jeremiah L. Cadick, Floyd W. Burns, James M. Nicholson, Indianapolis, John E. Scott, Anderson, for appellant, Cadick & Burns, Indianapolis, O'Neill, Scott & Schrenker, Anderson, of counsel.

High E. Reynolds, Indianapolis, Robert L. Austin, Anderson, for appellee The First Nat. Bank of Elwood.

Lee B. Fidler, Anderson, for appellee Walter F. Busch.

Locke, Reynolds, Boyd & Weisell, Indianapolis, of counsel.

BOBBITT, Judge.

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement. See: A. S. C. Corporation v. First National Bank of Elwood, Ind.App.1959, 161 N.E.2d 179.

Appellant conducts a finance business consisting of the loaning of money to retail automobile dealers by what is commonly known as a 'floor plan' arrangement, and the purchase from them of conditional sales contracts taken by such dealers to secure the balance of the retail selling price, and by the acceptance of chattel mortgages to secure certain other loans on automobiles.

This action was brought to recover damages allegedly suffered by appellant as a result of the non-payment of certain loans made to appellee, Cecil L. Slavens, by the appellant. Such loans were secured by (1) trust receipts on new and used automobiles intended for resale under a floor plan arrangement; (2) chattel mortgages on automobiles; and (3) conditional sales contracts of appellee, Slavens.

The theory of this action as stated by appellant is that it was induced to make such loans by fraudulent concealment and misrepresentations by the defendants-appellees, Cecil L. Slavens (hereinafter referred to as 'Slavens'), The First National Bank of Elwood (hereinafter referred to as the 'Bank'), and Walter F. Busch (hereinafter referred to as 'Busch'), of the failing and insolvent financial condition of appellee, Slavens, the alleged dishonest and improper banking and business practices carried on by appellees, Slavens, Bank and Busch, and the facts concerning the priority of the liens taken by appellant on certain automobiles of Slavens. 1 Such concealments and misrepresentations are alleged to have been made pursuant to a fraudulent conspiracy among the appellees, Slavens, Bank and Busch, the purpose and effect of which was to induce appellant to make such loans to Slavens so that the funds so advanced would be available for use in the satisfaction of indebtedness of appellee, Slavens, to appellee, Bank.

Trial was by the court without the intervention of a jury. Finding and judgment was for defendant-appellee, Bank, and defendant-appellee, Busch, and against defendant-appellee Salvens, in the sum of $61,485.24, with interest and costs.

The issues presented by the motion for a new trial--the sole specification of which is that the 'decision of the court is contrary to law'--is whether the alleged fraudulent acts of concealment and misrepresentation of material facts were committed by appellees, Bank and Busch, pursuant to a conspiracy to which they were a party and, if so, whether appellant was misled by such acts and suffered damages as a result thereof.

The sole assignment of error is the overruling of appellant's motion for a new trial; and the only question presented for our consideration is whether or not the decision of the trial court was contrary to law.

The decision of the trial court comes to us clothed with the presumption that a correct result was reached and the burden is upon appellant here to overcome that presumption. Souerdike v. State, 1952, 231 Ind. 204, 206, 108, N.E.2d 136, 138.

Appellant had the burden of proof to establish the material allegations of its complaint by a preponderance of the evidence. If the evidence here entitled appellant to the relief denied it, the decision of the trial court was contrary to law. In determining that question, however, 'we may consider only the evidence most favorable to the successful party, and it is only where the evidence is without conflict and leads to but one reasonable conclusion, and the trial court has reached a contrary conclusion, that the decision will be disturbed as being contrary to law. Wilson, Adm'x. v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905; Rowe v. Johnson, 1945, 223 Ind. 289, 60 N.E.2d 529; Pokraka v. Lummus Co., 1952, 230 Ind. 523, 104 N.E.2d 669, and cases cited.' Souerdike v. State, supra, 1952, 231 Ind. 204, 206, 108 N.E.2d 136. See also: E. H. Purcell & Co., Inc. v. Agricide Corp., 1956, 126 Ind.App. 476, 134 N.E.2d 233; Newton v. Cecil, 1955, 125 Ind.App. 416, 421, 124 N.E.2d 713.

Appellant asserts that the evidence was introduced by plaintiff-appellant; that it was undisputed and uncontradicted, and under 'the only reasonable inferences therefrom and the law applicable thereto, appellant was entitled to recover judgment against all of the appellees.'

Appellees deny this assertion and contend that the fact that all of the evidence was offered by appellant has no significance in determining its weight and probative value, and that conflicting inferences could have been drawn from the evidence as shown by the record here.

The evidence consisted of oral testimony of witnesses, written documents, an adverse party examination of Busch, a deposition of Slavens, and a stipulation of facts.

Appellant relies upon the rule as reaffirmed in State ex rel. Board, etc. v. Hayes, 1950, 228 Ind. 286, at page 292, 91 N.E.2d 913, 915, "that a prima facie case must always prevail in the absence of countervailing proof or in other words where the evidence in the record is all one way its effect becomes a matter of law even in favor of the plaintiff to recover."

In further support of its position appellant also cites Egbert v. Egbert, 1948, 226 Ind. 346, 80 N.E.2d 104; Taylor v. Lohman, 1881, 74 Ind. 418; and Jamieson v. Miller, 1876, 54 Ind. 332.

State ex rel. Board, etc. v. Hayes, supra, was an action to enjoin the defendant-appellee from practicing medicine without a license. The evidence there was undisputed and uncontradicted that appellee, Hayes, was practicing medicine without a license and under such circumstances the rule as above stated was applicable, and this court properly held (at page 293 of 228 Ind., at page 915 of 91 N.E.2d) that the trial court had no discretion, but, 'as a matter of law, should have granted the temporary injunction.'

Egbert v. Egbert, supra, 226 Ind. 346, at page 352, 80 N.E.2d 104, 107, also holds that 'when a plaintiff has fully sustained each of the material averments of his complaint by uncontradicted evidence, a general finding against him is contrary to law, and will compel a reversal.'

Certain early cases do say that there being no conflict in the evidence (54 Ind. 332) or in the testimony (74 Ind. 418) an Appellate Court will weigh the evidence and give it such effect as, in its judgment the trial court should have given it. However, in each of these cases it appears from the respective opinions that the evidence was without conflict and led to but one reasonable conclusion and the trial court had reached a contrary conclusion.

Since these cases were decided, however, our appeal courts have again recognized the fact that uncontradicted evidence will sometimes support conflicting inferences, and when this is the case, the inferences drawn by the trier of the facts will prevail. The rule and the reasons supporting it are ably and fully stated in Haynes v. Brown, 1950, 120 Ind.App. 184, at pages 189-190, 88 N.E.2d 795, 797-798, as follows:

'The fact that all of the evidence at the trial was offered by the appellant is of no significance in determining its weight. Wilson, Adm'x. v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905. The trier of the facts is not required to believe the testimony of every witness. Soucie v. State, 1941, 218 Ind. 215, 31 N.E.2d 1018. On the other hand the trial court may not refuse to consider and weigh competent, uncontradicted evidence. Egbert v. Egbert, Ind.Sup., 1948, 80 N.E.2d 104. * * * And even though an item of evidence is not expressly or directly denied or refuted, it does not necessarily stand as uncontradicted evidence, for the trier may disregard or disbelieve oral evidence if it is considered unreasonable or inconsistent with facts and circumstances shown by the other credible evidence in the case. Wright v. Peabody Coal Co. 1948, 225 Ind. 679, 77 N.E.2d 116.

'Nor does a lack of contradiction or dispute in the evidence of itself make us the finders of the facts or justify us in substituting our judgment for that of the trial court. We can only do that when the evidence is all one way, and but one conclusion could be reached from the facts proved. Wiggam v. Rhodes' Estate, 1931, 92 Ind.App. 491, 176 N.E. 250; Wilson, Adm'x. v. Rollings, supra; Pearson Co., Inc. v. Cohen et al., supra [118 Ind.App. 699, 83 N.E.2d 433]; for uncontradicted evidence will sometimes support conflicting inferences, and when that is the case, the inferences drawn by the trier of the facts will prevail. Gish v. St. Joseph Loan, etc., Co. 1918, 66 Ind.App. 500, 113 N.E. 394; Wiggam v. Rhodes' Estate, supra; Williams v. Bent, Ind.App., 1949, 87 N.E.2d 883; see also Clayton v. Universal Construction Co., 1942, 110 Ind.App. 322, 38 N.E.2d 887, and Cole v. Sheehan Construction Company, 1944, 222 Ind. 274, 53 N.E.2d 172.'

The reason for such rule is readily apparent, and we reaffirm both the reasoning and the conclusions as stated in the above quotation from Haynes v. Brown, supra. See also: Wilson, Admx. v. Rollings, 1938, 214 Ind. 155, 158, 14 N.E.2d 905; Cole v. Sheehan Construction Company, 1944, 222 Ind. 274, 280, 53 N.E.2d 172; McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 12, 51 N.E.2d 474; Newton v. Cecil, supra, 19...

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