*1 910; Price, Stamm v. al. E. 2d 837. appellee’s motion to dismiss is sustained and this cause
is dismissed. Reported
Note. —
Margaret Foley Colby. v. Celia February 10, 1269A246. Filed [No. 1971.] S92 *2 Raymond Kern Barnhart, Klagiss, Kenneth C.
Brent A. I. Indianapolis, appellant. Associates, for & all of Indianapolis, McNutt, for John G. judg- Plaintiff-appellant appeals a C.J.
Hoffman, defendant-appellee at the close ment entered for damages conversion of for for evidence in an action property. appel- or not presented by appeal is whether issue this prima facie case of
lant’s evidence constitutes a damages trial was complaint and for Appellant filed a plaintiff-ap- jury. At conclusion of court, without following appears in the record pellant’s evidence us: your rests, Honor. Plaintiff KERN:
“MR. Quill. “THE COURT: Mr. Court, time the QUILL: please this If it
“MR. judg- move like to would Defendant for upon ment Defendant favor grounds following fol- and lowing separate reasons: and several * * supplied.) (Emphasis judgment Following defendant-appellee’s oral motion for parties the court made argument by and both was oral there ruling: following motion for the Defendant’s “[Tjherefore I’ll have to sustain judgment for the finding. there will be At time this a Defendant ** follows: entered Thereafter, trial court being by counsel, and this cause parties now the “Come finding judg- trial, and Court is to the submitted at issue being being ment; heard, the Court and the evidence and the defendant duly premises, finds for now advised against plaintiff herein. complaint for costs and Adjudged the Court “It Therefore Considered is nothing complaint, recover plaintiff have and that the from the recover of and the defendant have and expended plaintiff and taxed at herein $6.00.” costs ap- Neither did Defendant-appellee presented no evidence. therefore, and, the trial court to allow pellee her case rest judg- weigh the trial court’s trial ended on the evidence. The judgment at appellee’s oral motion for ment after entered appellant’s evidence. the close of overruling assignment
Appellant’s of error sole motion for a new trial. may evidence, this court consider such case In may together inferences which drawn with reasonable therefrom, favorable to We most conflicting weigh exclude evi the evidence must all *3 Gwaltney Drilling, that is favorable to dence 1, 710, 716, 22 App. Ind. McKee, 148 259 N. E. 2d Inc. v. Ind. Dept. Store, ; etc., Bros. v. Robertson Brickman 48 Dec. (1964) ; Thompson 467, 2d 583 Ross v. App. 202 N. E. 136 Ind. ; App. 89, 146 259 Garrett v. al., Ind. N. E. 2d et 128 etc., App. 23, 142 Hoctel, 128 Ind. 449 N. E. 2d Estate of denied). (transfer (1957), judgment of the trial court be sustained can light ap viewed in a most favorable to
if the evidence any legitimate together with inferences to be pellant, therefrom, support one or more of the fails to drawn of conversion. elements Indiana remained vir- in has
The definition conversion unchanged years. tually many court Hunter v. This in 471, 36 N. Cronkhite, E. 9 Ind. Eng. Encyc. Law, 108, as approval Am.
quoted with follows: “ consists, tort, appropria in ‘Conversion as a either personal property party’s
tion of of another to the own destruction, exercising benefit, in use and its or in it, dominion over in exclusion defiance possessor, of the owner lawful or with in holding possession, it from title in his under a claim and ” v. Barney, consistent with the owner’s.’ also: Sikora See al., App. (1966), (transfer 138 Ind. ; denied) Hardy 682 14, Heeter, App. 2dE. ; Thatcher, App. Prudential Ins. Co. (transfer denied) 2d 574 Beaver Prod Voorhees, ucts Co. light us, most evidence in the in a record viewed appellant, favorable to be summarized as follows: Appellant appellee’s apartment lo- was a tenant house Indiana, September, September, cated until Storage apartment lockers located in the basement building building. were the use of It was tenants in the upon appellant in use and incumbent to take a locker place her own lock on it.
Appellant empty placed cleaned an in it a chiro- adjusting practic table, stepladder, containing and a trunk put various other items. then her own lock on the storage locker. May,
In discovered her lock had been broken and removed from locker. Appellee’s had, custodian testified that he at the direction appellee, broken seven locks and contracted with men away the to haul contents of the testi- lockers. custodian posted fied that he notices near mail boxes to put effect all tenants should their name and number of posted their their lockers. These were notices days breaking approximately prior ten to his the locks and *4 having the items removed. long
It has been the law in that “the Indiana essence of wrongful right every to, invasion of conversion is and over, property owned, controlled, dominion absolute Seip thereof, use deprived and benefit.” person of its and 56, 83 at Gray, N. at there cited. cases instant case establishes that storage and se- to her was confined Breaking disposing of lock
cured lock. wrongful right to, invasion of property was wrong- over, appellant’s property. This dominion absolute request employee, invasion, by her de- done ful property. prived appellant of the use and benefit of her personalty wrongfully, possession of the is obtained Where necessary commencing prior Prudential no suit. demand is Thatcher, 14, 4 Ins. Co. Ind. N. E. 2d 574 Army (transfer denied); v. Eller Salvation bush, Deeter al., Sellers, did establish facie case of Therefore, appel- trial it was error for the court sustain lee’s motion for at the close Judgment cause remanded with instructions reversed and sustain motion for a new trial. concur;
Sharp JJ., Staton, J., White, concurs with opinion. Opinion
Concurring J. “The definition conversion in Indiana has re- Staton, many virtually unchanged years.” I mained concur with results reached Chief Justice Hoffman’s statement and the opinion. However, appear him it does to me that some- his thing gained segmentation might by re-examining here segments conversion, separate which doing, and in so those necessary necessary those to establish which are are case in conversion. only question appeal presented here whether
396 submitted sufficient evidence make a
case of conversion. summary
The in is that she rented an apartment appellee September, from of 1967. in the month Appellant storage told that was she could have one building. storage apartment lockers the basement the of by locker was selected cleaned the out She stored property certain items of the locker and placed padlock gate. Thereafter, upon her return day during May, locker in the the basement one of the month 1968, she empty. appellee, that found the locker was The through agent, her apartment custodian, the caused notices to posted apartment building by be the mail These boxes. notices occupying advised all tenants basement lockers of the by appellee, intended be action to the taken which was cleaning out of all unclaimed testified lockers. that knowledge she appear had no any- It the notice. does not where in personally the evidence was noti- appellee fied appellee’s agent, the custodian. It from inferred evidence that some stor- basement age unopened length had been lockers for a considerable purchased appellee time and build- ing recently put storage and desired to the basement lockers in order for the use of new tenants and her own informa- agent-custodian appellee’s tion. The caused seven locks storage to be broken lockers in the He made basement. arrangements (2) junk carry away for two men to con- independent seeing tents. custodian had an recollection of chiropractic being building table carried out of the Appellant’s trunk was found in cus- apartment. todian’s The custodian testified that he had found it in boiler room. told the cus- todian that she valued the items taken them further wanted returned. She testified as to value of the items replaced. taken which could be Some items were irreplacable. assumption gist “conversion” is unauthorized Casey 305, Kastel, 237 N. Y. powers the true owner. ; 31 A. L. R. wrongfully
Any dominion exerted over distinct act of one’s dealing with the property of their in denial dominion which excludes the owner’s of another Marvel, Talich Neb. W. a conversion. Wilcox, (Mo. 1915). State S. W. *6 “prima restricted mean facie” has no narrow or The term “prima ing synonymous “presumption.” A “inference” or with the is received and continues until facie case” that which is thereby standing contrary unexplained shown, and uncon ‘prima used describe evi “The facie’ when to words tradicted. dence, termini, imply be rebutted ex vi that such evidence testimony.” Kleinberger, by competent Frank Meline Co. (1930) 1042, 1043, 108 Cal. Morrison v. 290 P. (1923). Flowers, Words Ill. 189 See case). definition and Phrases additional of controverting present any rebutting appellee The did not evidence, appellee appellant’s the At the close of evidence. Therefore, finding defendant-appellee. the moved for a for the given summary presented in all of direct evidence was complaint appellant’s support of case, establish facie conversion
To by only had to the evidence: show rights
(1) possession in to of That she had exclusive complaint. her described in allegedly personal description property of con- verted. personal
(3) Appellee’s exercise of dominion over said property defiance of in exclusion and in possession. were unauthorized or tortuous. That acts Damages appellee. acts as result of the sustained clearly that established shows goods appellee broke interest taken. The possessory her gate the locks on locker and had most con building by tents thereof carried out This done was all without authorization either implied per from the actual item of property sonal premises appel which was remained empty per lant’s trunk. The the items of described property sonal taken from the locker and testified as to their damages approximate value. She stated the amount of wrongful a result of the conversion tak ing appellant’s personal property of the from her locker appellee require prop did not a demand for the return erty bringing Appellee may suit. be able to show taking under terms lease such was wrongful appellee right possession and that take personal property, of such stored but the record shows no Army Ellerbush, App. 682, such Salvation (1928) ; First National Bank Rensselaer v. Ransford, important appellant’s prima ap-
It is not facie case that pellee posted a notice mail boxes of tenants or that appellee removed articles of from the good Kee Becker, faith. P. 54 Cal. *7 App. (1942). 2d 466 showing appellant
There is no evidence that the knew about the notice or that upon she would have had act said notice to if she had known of its existence. given by showing appellant
Evidence asportation manucaption helpful court, was indeed to the but this evidence necessary prima was not to establish a facie case of conver- Asportation manucaption necessary sion. are not elements prima Stephens, of a facie conversion. West Yellow Pine Co. v. (1920). So. Fla. personal property demand for the return of which has subject necessary been of a be a conversion element showing taking prima of a facie of conversion where a lawful evidence, however, a formal demand is not is shown necessary. presented by The evidence present case that she the custodian she told valued shows Even that she them back. such the items taken and wanted may be demand statement this sufficient constitute presented. ap with all when considered prima pellant’s evidence set forth a facie unauthorized and necessary taking. No unlawful con unlawful demand is an Certainly, to establish no demand version facie case. necessary taking it either a or unlawful where lawful appears have evidence that such would demand unavailing. present case, per item been In the premises left sonal was the trunk. belonging personal property All other items of carried Where such been out beyond conjecture items came to rest is speculation. Stephanoff, Ranier et al. ; Hays Burns, established a for an unlaw- case It was error trial court to sustain ful conversion. close of motion Judgment with in- should be reversed and remanded cause trial. motion for a new structions sustain Reported in 266 619. Note. — Kroger Company, Bertha Mae Ward Inc. v.
and Ellis Ward. Rehearing April 23, 1971. Filed March denied 370A36. [No. September 2, 1971.] Transfer denied