DISSENTING OPINION. Being unable to agree with my colleagues I desire to express my ideas, with reference to this case, as follows: This was an action for damages caused by acts which, in legal effect, amount to a conspiracy. The jury found that appellee had been damaged by the acts of the appellants as a result of the conspiracy.
In this case, as in cases appealed from the Industrial Board,if there is any evidence at all to support the decision of the trial court, the judgment of that court must be upheld or affirmed. The rule has been held to be that when fraudulent conspiracy is fairly shown by the evidence and the reasonable inferences to be drawn therefrom, the verdict or decision is binding upon this court. Huckstep v. O'Hair (1856),8 Ind. 253; Smith v. Freeman (1880), 71 Ind. 85, 92; Card v. TheState (1886), 109 Ind. 415, 9 N.E. 591; Hunsinger et al. v.Hofer (1886), 110 Ind. 390, 11 N.E. 463. "The question as to whether a conspiracy existed, is one peculiarly for the trial court, and where there is any evidence at all supporting the decision of that court upon the question, it will be respected by this court." Doherty et al. v. Holliday et al. (1893),137 Ind. 282, 36 N.E. 907.
Even if this were not the rule we are bound to consider *Page 17 the evidence in the light most favorable to appellee when confronted with the sufficiency of the evidence to sustain the verdict. "If there is any evidence tending to support every essential fact necessary to support the verdict, it is sufficient evidence." Federal Life Insurance Company v. Sayre (1924),195 Ind. 7, 142 N.E. 223.
"The court or jury trying the case may draw any reasonable inference of fact from the evidence." Federal Life Insurance v.Sayre, supra; Keenan Hotel Company v. Funk (1931),93 Ind. App. 677, 177 N.E. 364. "It is not essential that a fact be proven by direct and positive evidence and where it may be reasonably inferred from the facts and circumstances which the evidence tends to establish it will be sufficient on appeal."Federal Life Insurance Co. v. Sayre, supra; First NationalBank of Vernon v. Federal Land Bank of Louisville (1931),93 Ind. App. 15, 177 N.E. 462. Even these facts "may be established by circumstantial as well as by direct evidence and in some cases the circumstances may be such as to overrule direct and positive testimony to the contrary." First National, etc. v. FederalLand Bank, supra; Evansville Metal Bed Compay v. Lode (1908),42 Ind. App. 461, 85 N.E. 979. "With certain facts proven, the court not only may, but it is its duty to draw therefrom legitimate inference." Czuczko v. Golden-Gary Co. (1932),94 Ind. App. 47, 177 N.E. 466.
It is also the jury's province to presume or infer that, "Where a party has competent evidence, presumably favorable to him, readily obtainable by him to prove or disprove any material fact, and fails to produce it, that the evidence if produced would be unfavorable to his contention." Abelman v. Haehnel, Admr. (1914), 57 Ind. App. 15, 32, 103 N.E. 869; Lee v. The State (1901), 156 Ind. 541, 548, 60 N.E. 299. *Page 18
With these positive and definite rules of law before us, let us look to the proven evidence from which we may later draw inferences, if they be needed. Appellee Cooley, his wife and another were the owners of all the stock in a domestic corporation organized in 1925 for the purpose of selling and installing metal weatherstripping and caulking in buildings, which corporation was known as Superior Metal Products Company. This corporation had a very valuable contract with the Superior Metal Weatherstrip Company, a manufacturer of weatherstripping material, whereby the Products Company was given exclusive territory by the "Weatherstrip" company for ten years. In December of 1925 Cooley interested L.V. Hamilton in a proposition whereby Hamilton could obtain control of the Products Company with Cooley retaining a minority interest. Cooley then talked to L.O. Hamilton, the father of L.V. Hamilton, and sold him on the idea. L.O. Hamilton then put up $1,000.00 and a contract was entered into whereby the deal proposed was consummated. Cooley received the $1,000.00 and two notes of the corporation for $1,310.00 and $437.17. The $1,310.00 note represented accounts receivable of the corporation from October to the first of December, 1925. The $437.17 was a loan to the corporation by Cooley. These notes were to be paid as collected. The stock was transferred to L.O., L.V., and Francis F. Hamilton and delivered to L.V. Hamilton. L.V. Hamilton was elected president, Francis F. Hamilton, secretary-treasurer, and Harriet S. Hamilton, vice-president. From December 29, 1925, to January 1, 1927, about $9,000.00 worth of material was purchased from the "Weatherstrip" company by the "Products" company. There was competent and expert testimony that the usual selling price (installed) on this amount was $27,000.00. In June of 1926 between 85 to 90 per cent of the accounts represented *Page 19 by the $1,310.00 note were collected. These were never paid to Cooley at any time. L.V. Hamilton was, in the fall of 1926, developing and building a machine to make weatherstrips. This machine was being built in the basement of the building wherein L.O. Hamilton had his office. One hundred dollars was paid from the treasury of the "Products" Company on the cost price of this machine. Advertising calendars were put out late in 1926 for 1927, advertising the Hamilton Weatherstrip Company. In the fall of 1926 L.V. Hamilton approached the majority owner of the "Weatherstrip" company and asked him to sell to the Hamiltons, and a price of $22,000.00 was asked for the manufacturing company. L.V. Hamilton at this time said that he and the brother, Francis F., would "fix" Cooley. On January 12, 1927, one Albershardt, to whom the Products Company was indebted in the small sum of $240.00 for work done as a bookkeeper, filed suit asking for a receiver. L.V. and F.F. Hamilton signed a consent to the appointment of a receiver.
When this receiver was asked for, Cooley, the owner of 24 shares of stock, was in Indianapolis but was not advised of the action. A receiver was appointed and on February 21, 1927, a petition was filed by the receiver to sell a contract the "Products" company had with the Indianapolis School Board for work on parts of buildings No. 3, 6, 8, and 53 in the sum of $1,700.00, to L.V. Hamilton, doing business under the name and style of Hamilton Weatherstrip Company, for the insignificant sum of $100.00.
L.V. Hamilton, the president and manager, failed to account for many jobs that the corporation had sold and installed. There were some two hundred of these. L.O. Hamilton talked to his son L.V. about forming a strictly Hamilton Company in the late summer or early fall before the work started on the Hamilton weatherstripping *Page 20 machine. This scheme originated in the mind of L.O. Hamilton. There was no necessity for forming a new corporation for the purpose of manufacturing, as the "Products" corporation had the authority under its articles of incorporation to manufacture.
L.O., H.S., and F.F. Hamilton were represented in court by an attorney. There is no showing that they were physically incapacitated or prevented in any way from appearing at the trial, and testifying in their own behalf. L.O. Hamilton, Albershardt, the bookkeeper of the "Products" company, and Bristor, the attorney throughout all these proceedings for the Hamilton interests, incorporated the Hamilton Weatherstrip Company as soon as the receivership was out of the way. L.V. Hamilton was made manager of this company at the salary he received in the "Products" company. The Hamilton company was still in. business at the time of the trial. Albershardt, who had kept the "Products" company's books under Cooley for $10.00 a month, was given $20.00 under L.V. Hamilton.
These are only some of the facts proven, but I believe them sufficient, with the inferences that may have been drawn by the jury, to support the verdict. Isn't it a logical and altogether legitimate inference that if a man (L.O. Hamilton) had at least $1,000.00 invested in a business which was controlled by his sons and daughter, that he knew what was going on and participated therein? This is especially so when it is recalled that he suggested the formation of the Hamilton company and invested additional capital therein by becoming the majority stockholder. Isn't it a perfectly legitimate inference that when one could get control of a business that did some $27,000.00 worth of work in one year, making a profit of at least $9,000.00, by the simple process of doctoring accounts and consenting to a friendly receivership without notice to Cooley, the *Page 21 minority stockholder, that the man with the largest amount of capital therein had at least some knowledge of what was going on in his company? Isn't it a legitimate inference that a family will ordinarily look out for the interests of its own members?
Another inference that may have been drawn by the jury was that if L.V. Hamilton had told an outsider that they would fix Cooley, he might have told his father. Or isn't it just as logical to assume that the jury inferred from the acts of the family that the scheme to fix Cooley originated in the mind of L.O. Hamilton? Would not the jury be justified in inferring that a corporation which did a $27,000.00 business in the year 1926 and paid a manager $300.00 a month, was not in as bad financial condition as the books of the company might indicate? And it is altogether probable that a jury might do this in spite of the fact that a court found that a receiver should be appointed and the business wound up. It is altogether probable that the jury drew the inference that a weatherstrip manufacturing machine could not have been built in the basement of the building wherein L.O. Hamilton had his office, without his having knowledge of the fact. The fact that 85 to 90 per cent of the accounts represented by the $1,310.00 note were collected without the note having been paid, is a perfectly logical basis for the inference that a conspiracy existed to defraud Cooley. The fact that the Hamilton family, immediately after receivership, went into this same business is the basis of an inference that a conspiracy existed. Is it not altogether probable that the jury inferred that the plan for and formation of the Hamilton company to manufacture, when manufacturing could have been done under the "Products" company charter, was only part of a general conspiracy.
These inferences and others that are just as logical and may have been drawn by the jury are facts "insofar *Page 22 as concerns their relation to the proposition to be proved." They merge themselves into the proven facts from which they are deducted, and the resulting augmented facts, become the basis for other proper inferences. Cleveland, etc., R. Co. v. Starks (1915), 58 Ind. App. 341, 106 N.E. 646. We do not think it is necessary to go that far, but if necessary it can be done under the law quoted.
"It is elemental that the unlawfulness of a conspiracy may be found either in the end sought or the means to be used."Martell v. White (1904), 185 Mass. 255, 257, 69 N.E. 1085, 1086, 64 L.R.A. 260, 102 Am. St. Rep. 341; Commonwealth v.Hunt (1842), 45 Mass. 111, 123, 38 Am. Dec. 346. It is settled that "an act lawful in an individual may be the subject of civil conspiracy when done in concert, provided it is done with a direct intention to injure another, or when, although done to benefit the conspirators, its natural and necessary consequence is the prejudice of the public or the oppression of individuals."A.T. Stearns Lumber Co. v. Howlett et al. (1927),260 Mass. 45, 157 N.E. 82, and cases there cited.
"When any number of persons associate themselves together in the prosecution of a common plan or enterprise, lawful or unlawful, from the very act of association there arises a kind of partnership, each member being constituted the agent of all, so that the act or declaration of one, in furtherance of the common object, is the act of all, and is admissable as primary and original evidence against them." Hitchman Coal Coke Company v. Mitchell (1917), 245 U.S. 229, 62 Law Ed. 260, 275, and cases cited.
The fact is well established that Cooley was damaged materially by the conspiracy; in fact to a far greater degree than the verdict for $2,500.00. Pursuant to the conspiracy Cooley has suffered legal damage and injury *Page 23 which is the proximate result of the appellants' actions. Cooley lost the right to participate in a business wherein a gross turnover of from three to four thousand dollars a month was involved. Britton v. Young, et al. (1905), 36 Ind. App. 622, 74 N.E. 905.
Amplifying, and at the risk of perhaps reiterating, I quote also from Smith v. Fiscus (1916), 62 Ind. App. 156, 160, 111 N.E. 203: "It is not necessary, in order that the fact of a conspiracy may be established, that it should be proved by evidence of an express agreement or compact between the alleged conspirators, or by direct evidence of any agreement or compact. A conspiracy may be proved inferentially, or by circumstantial evidence. Conspiracies from their very nature, it has been said, are usually entered into in secret, and are consequently difficult to be reached by positive testimony, which renders it peculiarly necessary and proper to permit them to be inferred from circumstances."
"It frequently has been held that no affirmative fraudulent representations need be shown, a concealment of the true nature of the action being sufficient. Place v. Minster (1875),65 N.Y. 89."
"In the case of Wolfe v. Pugh (1885), 101 Ind. 293, 308, the court uses this language: `All who accede to, concur in, and willingly and knowingly become parties to and further a conspiracy, are parties to it, without proof of further or previous agreement to concur in and further it.' It is the judgment of this court that all persons connected with the Owen County Land and Improvement Company are bound by the acts of Smith and Bixler." Mendenhall v. Stewart (1897),18 Ind. App. 262, 47 N.E. 943; Sanderson v. State (1907), 169 Ind. 301, 82 N.E. 525."
From the above it is clear that our holding must be *Page 24 that the verdict of the jury is sustained by the evidence and is not contrary to law.
Also assigned as error is the giving by the court on its own motion instructions numbered one to twenty inclusive. Eighteen of these are not discussed in the brief and error if any is accordingly waived.
Instruction number 18 is as follows: "If you find for the plaintiff and you further find that plaintiff has sustained damages as charged in his complaint then it will become your duty to fix and estimate his damages, if any, and the measure of plaintiff's damages, if any, is the value of his twenty-four shares of stock in the corporation described in the complaint at the time of the commission of the wrongful and unlawful acts, if any, of any two or more of said defendants, as charged in the complaint; together with the value of the notes described in the complaint at said time."
This instruction, when read with 13 and 19, correctly states the law and the appellants could not have been harmed thereby. As to specific reasons why appellants say 18 is bad, first is "Officers and directors of a corporation are not liable to corporate creditors, in the absence of fraud, for negligence or mismanagement of the company's business resulting in its insolvency, unless made so by charter or statute." This is correct but this is in the absence of fraud. Fraud is patent in this case. Then they say second is "Directors are agents of the corporation and its stockholders and owe no duty to corporate creditors." This is also a correct general statement of the law but it has no application here. Nor is there any attempt by appellants to apply this statement to any proposition or assignment. Cooley was more than a creditor, he was a stockholder and from the law set out heretofore it is clear that a stockholder can not be defrauded by a conspiracy and the conspirators not be held accountable. *Page 25
These notes were to be paid as the accounts were collected. It will also be noted that they were to be valued as of the time of the commissions of the wrongful acts. Who but the jury can say when that time was. Eighty-five to ninety per cent of these notes were collected by June of 1926. It is a logical inference that all may have been collected before the wrongful acts were committed. Possibly L.V. Hamilton would have been liable personally if he had defrauded Cooley alone but when he does it in concert with others it can not be said that he alone would be liable for conversion.
Instruction 18 certainly correctly stated the measure of damages in this case. What appellee lost, if he lost anything, was the value of his stock and of his notes. What was their value was a question for the jury to decide. Appellee's entire interest was wiped out by the acts done by appellants acting "in concert" and in furtherance of their common design to acquire the whole business for themselves. They certainly took all there was in the business.
There was a clear conflict in the evidence as to whether appellee authorized the company to use the money from his accounts in the business, but if the money was so used, the amount so used, of course, would still be due appellee. The rights of the parties could in no way be affected by such use of the money. The jury might have inferred, as they had the right to do, that some, if not all, of this money which belonged to appellee, was used by the company in procuring calendars, and perhaps other advertising matter, for the new company which appellants were then engaged in forming. Indeed, some of it may have been used in the building of the machine now in use by the new company. In either event, appellants, as officers and directors, supervised the collection of these accounts and the expenditure of the money for improper purposes. If *Page 26 they had not acted in concert the results achieved would not, and could not, have been brought about.
Instruction 18 could not under any view of the evidence in this case, be erroneous or harmful. Moreover, instruction 18 was more favorable to the defendants than to the plaintiff, and defendants were not harmed by it. This instruction restricted appellee's damages more than the facts and the law would warrant. In instruction 18 in this case nothing was allowed for future value; such an instruction making allowances for future value has been held not to be erroneous by this court. Scott v. Brown (1927), 90 Ind. App. 367, 157 N.E. 64, instruction 23, page 378. If anyone was harmed by instruction 18 it was appellee, and appellants cannot complain because an instruction was more favorable to them than the facts and law warrant.
It is the law that an erroneous instruction cannot be corrected by the giving of a correct instruction. Weston v. State (1906), 167 Ind. 324, 78 N.E. 1014. But this is authority only where it can be said that the giving of two inconsistent instructions lead to uncertainty in the minds of the jury as to the law. McCutcheon v. State (1927), 199 Ind. 247,155 N.E. 544. In the case of McCutcheon v. State, supra, the defendant had been found guilty and sentenced to death in a case where an instruction read in part as follows (p. 256):
"If you have a reasonable doubt of the guilt of the defendant as to the degrees of felonious homicide, you can only find him guilty of such degree as you have no reasonable doubt of his innocence."
This instruction is clearly erroneous and yet the Supreme Court of Indiana affirmed the lower court because the lower court had given a correct instruction on this point, which was held to have correctly instructed the jury.
We know of no reason why this court should take a *Page 27 different view than that stated by the Supreme Court in the case of McCutcheon v. State, supra, especially where this case only concerns a money judgment against appellants. Certainly appellants' money is not more sacred than the defendant's life in the McCutcheon v. State case, supra, and appellants' interests are not deserving of more consideration. Instructions 13, 18, and 19 are not inconsistent, and when considered together fairly and fully state the law applicable to this case. The most that can be said is that one is a more clear and definite statement of the same thing.
Instruction 13 is as follows: "It is alleged in the complaint in this case that the defendants entered into a conspiracy to wrong and defraud the plaintiff. In order to establish a conspiracy it is not necessary to prove that any written agreement was entered into, or that any particular conversation and agreement was had between or among such persons engaged in such conspiracy. It is sufficient to establish a conspiracy if the evidence shows by a fair preponderance thereof of a working in harmony to promote some unlawful purpose or enterprise, and that each party so engaged therein received, or was to receive, some profit or benefit from such unlawful business or enterprise. To constitute such a conspiracy two or more persons must so engage in said common unlawful purpose or enterprise, and any person not so shown to have been so engaged in such common purpose or enterprise cannot be included therein, and is not liable on account of any such conspiracy."
We must bear in mind that the jury found, after having been so instructed, that all defendants were engaged in a common and unlawful purpose and enterprise and the evidence is sufficient to uphold the jury's finding.
Instruction 11, in part, is as follows: "Therefore, in *Page 28 construing any single instruction you must consider it in connection with all the other instructions given you and construe them in harmony with each other."
Nothing prevented the defendants from tendering and requesting instructions covering this question more fully and appellants cannot now complain of instruction 19 because instruction 13 fully covered the subject and the jury was not misled thereby.Prudential Life Ins. Co. v. Sellers (1913), 54 Ind. App. 326, 329, 330, 331, 102 N.E. 894; Mesker v. Bishop, Admx. (1914),56 Ind. App. 455, 468, 469, 103 N.E. 492.
Instruction No. 19 is as follows: "If you find for the plaintiff in this case and if you further find that he has sustained damages as charged in the complaint and when you have fixed and determined the amount of damages that he is entitled to recover then the form of your verdict should be, `we the jury find for the plaintiff and assess his damages in the sum of ____ Dollars,' writing in the amount that you find that he is entitled to recover. But, if you find for the defendants you should indicate such fact by your verdict and in such event the form of your verdict should be, `we the jury, find for the defendants.'"
"When you retire to your jury room you should select one of your number foreman and when you agree on the verdict have your foreman sign such verdict and return with it into open court."
Appellants say in their first point under this that "It is error to instruct the jury, in effect, that, if it finds for the plaintiff, it must so find as against all the defendants, when there is another instruction in the record informing the jury that any person not shown to have been engaged in the enterprise complained of is not liable on account thereof," citing and relying on only one case, that being Goodwine v. Ayres (1922), 78 Ind. App. 396, 399, 400, 136 N.E. 24. This case does not *Page 29 uphold the contention advanced. In that case complaint was made of a certain instruction, and the appellee contended that if two other instructions were considered with the one complained of there would result a correct statement of law. The court recognized the rule contended for by the appellee, but said it had no application there because the instruction complained of was a mandatory instruction which directed a verdict if certain facts were found to exist. The error in the instruction there was the omission of certain facts. In 19 here all the facts are fully set out, it is complete in itself. The saving clause of 19 is "if you further find that he has sustained damages as charged in the complaint." What were the damages charged in the complaint? The damages resulting from the conspiracy as charged, which included all of the appellants. The jury found that appellee sustained the damages as charged. This is the only case cited by the appellants, and after diligent search we are unable to find any authority to support such contention.
This instruction was absolutely correct. What the appellants are really complaining of is the fact that another direction was not given which set out a form of verdict allowing or directing the jury to find for the plaintiff against certain defendants. But here the appellants were not aiding the trial court, but were sitting idly by hoping for the best. While the trial court was preparing instructions and directions as to form of verdict, it received no help from these appellants. The appellants did not even ask the court to instruct the jury in writing, so far as the briefs or record disclose. Five instructions were submitted by appellants which dealt only with acts of corporate officers.
Instruction 19 was correct and it cannot be said to be reversible error because other instructions or other forms of verdict or other directions as to the form of *Page 30 verdict, not asked for by either party, were not given. W.J.Holliday Co. v. Highland Iron Steel Co. (1909),43 Ind. App. 342, 355, 87 N.E. 249; Crum v. State (1897),148 Ind. 401, 47 N.E. 833; Cincinnati, etc., R. Company v. Smock (1893), 133 Ind. 411, 33 N.E. 108; Du Souchet v. Dutcher (1888), 113 Ind. 249, 15 N.E. 459; Foxwell v. State (1878),63 Ind. 539; Eichel v. Wenhenn (1891), 2 Ind. App. 208, 28 N.E. 193; Lake Erie, etc., R. Co. v. McHenry (1884),10 Ind. App. 525, 37 N.E. 186; Tracy v. Hackett (1898),19 Ind. App. 133, 49 N.E. 185, 65 Am. St. 398; McAfee v. Montgomery (1898), 21 Ind. App. 196, 51 N.E. 957.
"If a party desires a full and specific instruction . . . it is incumbent on him to prepare such an instruction and present the same to the court at the proper time, with a proper request that it be given." Elliott, App. Proc., §§ 735, 736; 2 Elliott, Gen. Prac. § 896; Gillett Crim. Law (2nd Ed.), §§ 906, 915; 2 Thompson, Trials, §§ 2338, 2339, 2341; Krack v. Wolf (1872),39 Ind. 88; Pittsburgh, etc., R. Co. v. Lightheiser (1906),168 Ind. 438, 78 N.E. 1033. See also Vandalia Coal Company v.Coakley (1916), 184 Ind. 661, 667, 111 N.E. 426; IndianapolisTraction, etc., Co. v. Hensley (1917), 186 Ind. 479, 490, 115 N.E. 934, 117 N.E. 854.
The jury was fully instructed as to their right to find any combination of the appellants entering the conspiracy liable in damages. Instruction 13 is a complete answer to the appellants' contention that the jury were not instructed that it would be possible to find against only certain defendants. The important part of instruction number 13 is as follows:
"It is alleged in the complaint in this case that the defendants entered into a conspiracy to wrong and defraud the plaintiff. In order to establish a conspiracy it is not necessary to prove that any written agreement *Page 31 was entered into, or that any particular conversation and agreement was had between or among such persons engaged in such conspiracy. It is sufficient to establish a conspiracy if the evidence shows by a fair preponderance thereof of a working in harmony to promote some unlawful purpose or enterprise, and that each party so engaged therein received, or was to receive, some profit or benefit from such unlawful business or enterprise."
Appellants, as shown by the evidence, have succeeded in depriving appellee of his interest in the metal weatherstripping business and caused him to lose money on the notes given by the original company. Appellants were not discouraged with the metal weatherstripping business, at least two or more of them are still engaged in it, but the company has been changed and Cooley (appellee) has been ushered out. Appellants enjoy the profits without division with appellee. From the facts proven in this case the jury had a right to infer that all of the appellants acceded to, concurred in, and willingly and knowingly became parties to and furthered the conspiracy to defraud appellee.
For the above reasons, among others that might be stated, I am of the opinion that there was no reversible error and that the judgment of the Johnson Circuit Court should be affirmed.