Wilson v. Jerry Miller, Inc., 2--173A1

• Decision Date: 31 July 1973
• Docket Number: No. 2--173A1,2--173A1
• Citation: 299 N.E.2d 177,157 Ind.App. 135
• Parties: Sarah Frances WILSON, a/k/a Frances H. Wilson, Defendant-Appellant, v. JERRY MILLER, INC., an Indiana corporation, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 177

299 N.E.2d 177

157 Ind.App. 135

Sarah Frances WILSON, a/k/a Frances H. Wilson, Defendant-Appellant, v. JERRY MILLER, INC., an Indiana corporation, Plaintiff-Appellee.

No. 2--173A1.

Court of Appeals of Indiana, Third District.

July 31, 1973.

William C. Erbecker, Indianapolis, for defendant-appellant.

Robert H. Orbison, Indianapolis, for plaintiff-appellee; Baker & Daniels, Indianapolis, of counsel.

HOFFMAN, Chief Judge.

This is an appeal by defendant-appellant Sarah Frances Wilson (Wilson) from a judgment entered in favor of plaintiff-appellee Jerry Miller, Inc., an Indiana Corporation. Miller, in its action, sought recovery of money allegedly had and received by Wilson for the use and benefit of Miller.

Miller asserted in its complaint that Wilson was indebted to it in the sum of $102,847.84 and that such amount was due and unpaid.

The case was tried by the court without the intervention of a jury. In its judgment entered on July 25, 1972 the trial court found that Wilson misappropriated the aforementioned sum from Miller during the years 1965, 1966, 1967, 1968, 1969 and 1970. Damages were awarded for the entire amount sought by Miller. Thereafter, Wilson's motion to correct errors was overruled and this appeal followed.

The evidence most favorable to the appellee disclose that Wilson had been employed as bookkeeper for Miller from 1954 to 1970, and that she had charge of the office and complete charge of the books but that some of the entries in the books were made by other employees under her supervision.

On March 17, 1970, a check of the corporation's records by its auditor revealed a bank shortage of from $10,000 to $12,000. Gerald Lee Miller, president of appellee corporation, testified that on March 24, 1970, he spoke to Wilson concerning the shortage and further stated that she had no recollection of its existence. However, according to Miller, Wilson mentioned having written herself four checks for personal use. The next day, upon Miller's request, Wilson brought him the four checks which totaled $2,414.48. While personally examining the corporation's inventory sheets, Miller noticed that several number ones had been placed in front of figures entered in the right-hand columns. This conveyed the appearance that more assets were included in the inventory than were actually existent. However the 'ones' were in no discernible handwriting.

A later examination of the corporation's books by a certified public accountant revealed a number of recorded but undeposited receipts which, together with the bank shortage, amounted to a loss of $100,433.36. This audit showed that the loss was sustained in varying amounts from 1965 through 1970.

Moreover, Bertram J. Carmack, who checked the books, testified that during at least three years the undeposited receipts were balanced by check entries charged to the inventory account. Since no such checks ever reached the bank, Miller's books balanced and its bank account was reconcilable. Thus, only a careful examination of each entry would reveal any discrepancies.

Also, Carmack stated that the person who made the check entries would have to be the person who had knowledge of the non-deposit at the bank since the entries were made to conceal and offset the missing deposits.

The sum of $102,847.84, which was awarded to Miller, was arrived at through addition of the $100,433.36 loss and $2,414.48, the amount of the four checks written by Wilson.

The first issue is whether sufficient evidence was presented to establish that Wilson had appropriated to her own use the amount of money alleged in Miller's complaint.

While Wilson admits to a misappropriation of $2,414.48, she asserts that Miller has not established that she misappropriated the much larger amount awarded Miller by the trial court. By reason of this alleged insufficiency of evidence, she contends that such judgment was thereby contrary to law.

Conversely, Miller asserts that the decision of the trial court was supported by sufficient evidence upon all necessary elements of its claim.

Indiana has often reiterated the rule that only in instances in which the evidence is without conflict and can lead to but one result, and the trier of fact has reached an opposite result, will that judgment or verdict be set aside as being contrary to law. Echterling v. Jack Gray Transport, Inc. (1971), Ind.App., 267 N.E.2d 198, 24 Ind.Dec. 682; Nationwide Mut. Ins. Co. v. Day (1967), 140 Ind.App. 564, 224 N.E.2d 520 (transfer denied). Further, this court will not weigh the evidence adduced at trial. Uhlman v. Johnson et al. (1965), 137 Ind.App. 600, 210 N.E.2d 442. And, in reviewing such a case, we may only determine whether there exists evidence of probative value to support the finding of the trier of fact. Cox v. Schlachter (1970), 147 Ind.App. 530, 262 N.E.2d 550, 23 Ind.Dec. 60 (transfer denied); Palmer v. Decker (1970), 253 Ind. 593, 255 N.E.2d 797.

Testimony has established that Wilson had complete charge of the office; that she supervised the records and books of the corporation; that on occasion, she took the books and inventory sheets home to work on them; that she was authorized to write checks for the corporation; that the right-hand columns of figures on the inventory sheets in question were in her handwriting; that Wilson was employed by Miller as bookkeeper for the entire period during which the loss occurred; and that she made some bank deposits, purchased merchandise and waited on customers. In short, she had considerable authority in her supervisory capacity. Such attributes would aid a person involved in a misappropriation of funds. Moreover, it is improbable that...