This is an action by Appellant herein, Nationwide Mutual Insurance Company, a corporation, to recover money allegedly had and received by the Appellee herein, Robert W. Day, for the use and benefit of the Appellant. Such an action at common law, was known as "Indebitatus Assumpsit" and a thorough definition of this cause of action is found in the case of Indiana Business College v. Cline (1918), 187 Ind. 416, 418, 119 N.E. 712. Also see Shirley v. Wilson, et ux, (1952), 230 Ind. 392, 394, 103 N.E.2d 805.
After the issues were closed, the cause was tried by a jury. It appears from the record that at the conclusion of the Appellant's case, the Appellee moved for a directed verdict, and at the close of all the evidence, the Appellant moved for a directed verdict. The motions for directed verdicts by each party were overruled by the trial court. The jury returned a verdict for the defendant below, the Appellee herein. Thereafter the Appellant filed its Motion for a New Trial, which was overruled by the trial court.
The error assigned on appeal for reversal is the action of the trial court in overruling the Appellant's Motion for a New Trial. The grounds averred in the Motion for a New Trial are as follows:
The Appellant's first contention presents nothing for our consideration. This being an appeal from a negative judgment, the Appellant's contention that "the verdict of the jury is not sustained by sufficient evidence" raises no question for our determination. The general rule of law under such circumstances is clear and well stated in the case of Wilson, Administratrix v. Rollings, et al., (1938), 214 Ind. 155, 158, 14 N.E.2d 905:
Regarding the Appellant's second contention that the verdict is contrary to law, the well recognized rule of law which scarcely needs any citations to support it, is stated in the case of Hinds, Exc. et al., v. McNair, et al., Supra, at page 41:
However, it is only where the evidence is without conflict and can lead to but one conclusion, and the trial court or jury has reached an opposite conclusion, that the decision or verdict will be set aside on the ground that it is contrary to law. Pokraka, et al., v. Lummus Co. (1952), supra.
In reviewing the evidence in the record in the cause now before us, we are cognizant of the following well-established rules: We will not search the record to find reversible error; nor will we weigh the evidence; and unless all the evidence is undisputed, uncontradicted, and leads inescapably to the sole conclusion that the Appellant was entitled to a verdict, we cannot set aside the verdict of the jury. We are also mindful of the rule that a prima facie case must always prevail in the absence of countervailing proof. Stated otherwise, it is only where the evidence in the record is all one way that its effect becomes a matter of law. City of Decatur v. Eady, Executrix, (1917), 186 Ind. 205, 115 N.E. 577; First Nat'l. Bank, et al., v. Farmers and Merchants National Bank et al., (1908), 171 Ind. 323, 86 N.E. 417.
The facts in this cause which warrant a recovery on the part of the Appellant were not established without controversy or opposing evidence. The evidence in the record reveals variations and contradictions which might well have been considered in determining the credibility, sufficiency or weight to be given to the Appellant's evidence, even to the point of rejecting it. The rule is that the trier of the facts cannot arbitrarily reject items of evidence. However, the fact that a particular item of evidence is not expressly or directly contradicted, does not prevent the trier
For us to say as a matter of law that there was no conflict in the evidence, or that it was sufficient to sustain a recovery for the Appellant, would amount to an invasion of the province of the jury which tried this cause and concluded otherwise.
The Appellant asserts error in refusing to give its tendered instructions 1 and 2, and further asserts that the Court erred in giving Appellee's instructions 6, 8, 10 and 12. We deem it unnecessary to burden this opinion by setting out the foregoing instructions in full, but believe it to be sufficient to say the Appellant's tendered instruction number 1 was a mandatory instruction for a directed verdict. Under the evidence in the record, such instruction would have invaded the province of the jury. The Appellant's tendered instruction number 2 omitted the necessary element of the cause of action, namely, that the defendant holds money of the plaintiff which in equity and good conscience he ought to repay. Since that tendered instruction does not contain a complete statement of the law upon the subject covered, it was properly refused.
The Appellant further asserts that the trial court erred in giving Appellee's instruction number 6 reading as follows:
We cannot agree with Appellant's first contention, nor does its cited authority suffice to support such contention. We think the general rule in such cases as is now before us is as follows: "In the absence of any statement to the contrary, the presumption is that `money collected' was lawfully collected. If so, it could not be recovered without a demand." See The State ex rel Buskirk, Attorney General, v. Sims, (1881), 76 Ind. 328 at 329. Neither can we agree with the Appellant's second contention as hereinabove set forth. In reviewing the authority cited by the Appellant, we find the statement of the Supreme Court relating to the remedy of assumpsit to be clear and concise. We are of the opinion that under the Supreme Court's definition, the instruction complained of could not be prejudicial to the Appellant. See Indiana Business College v. Cline (1918), supra.
The Appellant's objections to the Appellee's instructions numbered 8, 10, and 12, which were given by the trial court have been waived under Rule 2-17 (e) and (f) of our Supreme Court, since the Appellant failed to cite any case law which supports its contentions of alleged error in said instructions. Paul Rust, E.E. Buckingham and George Martin, as Trustees of Zorah Temple of the Ancient Arabic Order of the Nobles of Mystic Shrine, and Zorah Temple Realty Company v. Ida May Watson, (1966), 215 N.E.2d 42; Wright v. State of Indiana (1958), 237 Ind. 593, 147 N.E.2d 551; Terry et al., v. Brinckman, et al., (1963),
The Appellant's last contention is, in substance, that the trial court erred in failing to direct a verdict for the Appellant at the conclusion of all the evidence. We find the principles we have heretofore discussed and the authorities we have heretofore cited in this opinion concerning the Appellant's second contention to be sufficient to answer the Appellant's last contention.
The judgment of the trial court is affirmed.
Carson, Prime, JJ., concur.
Faulconer, J., concurs in results.
NOTE. — Reported in 224 N.E.2d 520.