*1 reasons, are foregoing we conclusions Because reversible commit trial court did not sustaining appellee’s trial. motion for a new error judgment support presented our Court does record assignments urged appellee’s appellee, in the as was permit re- cross-error, nor the evidence sufficient covery by appellant present feel law. We under the may evidence issues and new trial should be had so that the any have occurred errors which be clarified also so may be erased. the trial court Judgment affirmed. Cook, J., Bierly JJ.,
Pfaff, concur. P. Reported in N. 764. E. 2d Note. — Company v. Dorr et al. General Rehearing 20,350. July 5, August denied 1966. Filed 1966. [No. Transfer denied March 1967.] *2 Schuttler, Robert D. of Evansville, appellant. for Joseph Minor, B. Eivansville, appellees. brought by plaintiffs-appellees, J. —This action was
Bierly, Dorr, wife, William B. Door and Rebecca J. husband and Vanderburgh against Court, Probate General Company, alleging damages resulting defendant-appellant, alleged heating pump from defective installed the home plaintiffs. of granted change court motion from
The for a of venue judge; subsequently, then filed when defendant a motion change county, for a of venue from the the cause venued was Posey to the Court. Circuit joined plaintiffs’
The issues Third were Amended designated Complaint paragraphs as the in two hereinafter complaint. paragraph breach first on a was based warranty; alleged misrepresenta- fraud and second grounds specifications The defendant submitted four tion. plaintiff’s complaint for a demurrer which demurrer overruled an answer The defendant then filed court. speci- plaintiffs’ complaint, and also filed two additional Paragraph plain- II support fications in demurrer its complaint, specification alleging in tiffs’ there each cause complaint facts sufficient to constitute did state of action. jury.
Upon joined, cause tried issues thus *3 the in on jury The returned a verdict favor of the defendant paragraph pleaded pleaded paragraph, first and on second the of jury in favor the returned a of and costs verdict $800.00 timely plaintiffs. a new trial its motion for Defendant filed following: alleging as error the overruling and First
“1. The in defendant’s Court erred plaintiffs’ ground Paragraph II of Second of demur to complaint. amended third occurring in Error this: “2. law at the trial Jury plaintiffs’ giving to in the a. The Court erred the (6), which instruction of instruction number six time, proper duly objected the within defendant had indicated argument, and the Court before after Jury. given the to would be instruction the Jury at refusing give the erred in b. The Court instructions request defendant written the (12) tendered twelve eleven numbered given. by requested to be the defendant overruling mo- defendant’s in the erred c. The Court evidence, in- all close of the tion, made at Jury general struct for the return verdict defendant. Jury by
“3. The verdict is sustained sufficient evidence. Jury contrary “4. The verdict is to law.” Assignment Appellants’ sole of Errors that: overruling appellant’s “The erred in court motion for a new trial.”
Salient favor- facts shown record evidence most may appellee briefly able to Plaintiffs stated as follows: purchased Road, a house and lot located at 711 South Meadow Evansville, early part Indiana, from Charles years previously. Bachman. residence had been five built purchase At equipped the time of Elec- it was with a General Weathertron, complex tric mechanism which heated house in winter and summer. was lo- cooled unit This seller, cated the basement of the Bach- house. The Charles man, plaintiffs explaining opera- delivered to the manuals unit; and, Company’s tion of the also The General Warranty. designated Five Year The unit was Weathertron (Type WT, C). Form
Appellees experienced difficulty first Weathertron with the unit to mid-summer due the failure operate properly. They unit, were unable to correct the Company, company then had contacted the U. S. Metal company appeared sold The name Weathertron. of this Warranty. company the back of the When this contacted longer appellees, were informed that it was no dealer, suggested appellees contact General Electric but Company. company informed Sheet Metal Waelde This *4 appellees dealer, that it was not Electric a General qualified repair it had no servicemen such General equipment. Electric repre-
Finally, appellees were to contact advised an area Company. they General Electric sentative This did. working properly July to October unit was not from nor, properly ; air in winter It neither heated the house 1961. efficiently Appellees in the summer. in October conditioned Kneer, Repre- a General Electric contacted Bernard brought Ray Temple, proprietor of sentative, with him who Company Evansville, Temple to confer with Electric examining appellees. unit, stated Bernard Kneer On Temple compressor Ray out, that the had shorted advised supplemental heat- so that the wire around ing adequately. Prior to contact- function mechanism would ing Kneer, appellees had contacted the Wesselman’s Bernard Refrigeration company sent a serviceman who This Service. repair unable to the unit. was appellees he
Bernard Kneer informed would check repair a see the defective unit. Later could be done to what by appellees a with Bernard Kneer and conference was held Company engineer employed the General Electric service appellees men told that the installation at Louisville. These complete necessary; in unit was their new longer expired Warranty effect as was no in it had Five Year that, warranty 30, I960'; if been but stated had November force, provisions appel- have its would been transferred to purchasers. lees as appellees that Krisher informed
Bernard Kneer and Mr. wrong faulty nothing except although the unit was with necessary compressor, to install unit as it would a new by “company policy” Com- required of the General Electric pany. year appellees contention that more than
In answer to attempted elapsed service- first had to secure a had since therefore, warranty repair unit, man to defective at the time the unit first became and effect force July 1960, stated, Kneer that the Bernard and Mr. Krisher having company a General warranty conditioned Indiana; therefore, Evansville, Dealer *5 warranty They warranty was void. stated been that had the in force would have for of honored its the benefit terms appellees. the
Appellees authorized Bernard Kneer and Krisher Mr. placed, order unit, a new but could before the order be Representative General Electric that it would be neces- stated sary Dealership for an to be authorized General Electric organized Temple Company established. The Electric proceeded of to order cost and install the unit at a new $1,300.00 appellees. explaining why replaced
In compressor as to could a not be requiring purchase entirely instead unit, an new Representative General Electric stated that the unit was factory complete therefore, unit, assembled at the as a compressor replaced Appellees could not in the field. paid for the unit on December 1961. On or about December 27, 1961, newly properly. installed failed function unit making Upon Temple Company, a call to the Electric Mr. Temple came, unit, examined the com- and concluded that the pressor compressor previ- had “shorted out” other had ously again Temple compressor done. wired around the for temporary service, replacement. and ordered a new unit as replacement only proved a When was delivered it to be compressor Temple Company Electric installed place faulty compressor. charged Temple
The Company General Electric Company compressor, not which sum was $300.00 charged against appellees because the General Electric Com- pany warranty replacement had executed for the appellees. Company time of its sale to The General Electric faulty explanation why offered no as to replaced in the unit as unit. old it had been the new
Appellant point alleged 2(b) for a waived in its motion therefore, disregarded. trial, point new it will be In the motion for trial defendant error the trial new asserts overruling grounds of defendant’s first second court Paragraph plaintiffs’ complaint. II demurrer paragraphs The crux of this demurrer with rhetorical deals complaint, paragraph, and 8 of the second amended which are as follows: plaintiffs com-
“6. defendant then advised that a new eliminating necessity pressor thus could be installed *6 approximately a cost of of a new Weathertron $200.00. plaintiffs into misinformed and misled “7. That defendant believing installed to be that new had a Weathertron in fact exception of cabinet and blowers when with the compressor unit installed in said could have been a new known have defendant knew or should and at said time in compressor installed said have been a new could that unit. plaintiffs ivaudently misrepresented to defendant
“8. That purchase a new Weathertron have to that would in fact exception and blowers when of cabinet with the of necessary purchase compressor, all only to it was known.” should have knew or defendant misrepresenta this is based fraudulent In substance ruling charges plain permitted Appellant the court’s tion. theory misrepre proceed on of fraud and to to trial the tiffs plaintiffs to to requiring disclose sentation without constituting misrepresentation. the facts fraud defendant v. Underwriters, Inc. Appellant case of Automobile cites the concerning App. 454, 482, (1961) N. 2d 131 Ind. 167 E. Smith misrepresenta sufficiency complaint or based fraud of opinion parts reads pertinent this case In tion. follows: necessary fraud of cause action
“The elements state reliance representations of material facts and are injury.” falsity, deception thereon, scienter, cases.) (Citing 8, of paragraphs opinion 7 and that rhetorical are
We complaint pleaded facts sufficient paragraph the second ruling, to the court’s in that the defendant misinformed and believing appellee complete misled into that a new Weather- faulty compressor tron must be installed, unit and that replaced unit, could not be when fact old possible faulty replaced for defendant com- to have such pressor; fraudulently represented appellees that defendant unit, imperative they purchase it was the entire known, appellant Weathertron, knew, or when or have should only necessary purchase compressor. it was a new alleged opinion We are that the facts in said rhetori- paragraphs complaint cal are sustained probative submission evidence of value. during Evidence submitted the trial reveals that had there only original been a installed unit there saving appellees approxi- would have been a in the sum of mately $1,300.00. In our extra this unwarranted charge appellees by misrepresentation was caused by appellant. facts supra,
The Automobile Underwriters, Inc., and the Farm Seal, Bureau Mutual App. Ins. Co. v. Ind. Admr. *7 269, only allege 760, necessary 179 N. E. 2d is hold that it to that representations the defendant knew said were false made, plaintiffs by the time that the were the mis- deceived representations, injuries. plaintiffs and that suffered pleaded paragraph
These elements have been in the second plaintiffs’ complaint, of plaintiffs’ and we conclude that com- plaint way by to of a was sufficient withstand an attack demurrer. point 2, trial, ap-
On number of motion for a the new the pellant charged during occurring trial, error of the and law point charged 2, appellant under “a” sub-section of said error by giving plaintiffs’ jury the court in to the Instruction Num- specified proof ber the court the elements of misrepresentation. to essential establish fraud and Said Instruction 6 No. is as follows:
INSTRUCTION NO. you preponderance “If dence from a fair of the evi- should find necessary it that was not to install new Weathertron agents represented the the to unit at plaintiff, when time the defendant’s required, Dorr, William B. that a new unit was necessary only replace the fact it you Weathetron, that the on defendant and further this, find said if should would knew then this or should have known part the de- misrepresentation the be a and fraud on recovery on plaintiffs and the would entitled fendant Paragraph tained, damages they sus- complaint for II of their the misrepresentation and any, result said as a if defendant, Com- part General fraud the of said pany.” giving appellants’ objection instruction to the this is as follows: open presence Jury, “In of the Court and out of the giving objects to the Plaintiffs’ In-
Defendant struction Court informs 6 for reason that this Instruction No. Jury or known if defendant should have the that that knew unit, necessary replace but the entire it compressor, only misrepresentation replace this then be would part fraud on of the defendant. establish in that in and to is erroneous “This Instruction necessary misrepresentation, it the defendant is fraud and knowledge falsity statements guilty have deceiving purpose Plaintiffs and it that makes that hope expectation made with the are will act misrepresentations.” said Plaintiffs jury by appellant that was misled and is It asserted No. 6 and as to the con- by Instructions No. confused charges trolling Specifically, appellant in the case. law adequately appears cover the if Instruction No. even points misrepresentation, effect fraud and its essential misleading alleged pronouncement liberal nullified Appellant cited a recent case appellees’ No. Instruction 6. Harper Supreme v. James Court entitled decided *8 534, 531, Page 131, at which 203 N. E. 2d Ind. (1965), 246 follows: reads as
451 in (1892), “As Fowler 347, stated v. Wallace 131 355- Ind. 356, E.N. 55: elementary procedure . principle “. . It an that by contradictory jury court cannot instructions leave to duty determining which of two lines of instruc- followed, tions be or control shall what rule law shall court, come from the be so case. law must jury declared that the can confusion. follow without appellant appears point It that fails to out the instructions, therefore, said conflict cited cases inapplicable point are above issue.
Appellant charges appellees’ also Instruction No. 6 is mandatory appears appellant a It instruction. failed to objection
raise this
proper
this instruction at the
objection
time, therefore,
timely
was not
made
appeal.
is unavailable on
(1965),
Lakes v. Moore
App. 681,
Ind.
Appellant point 3 of its motion for a new trial claims allegation appellees’ that the Paragraph material II complaint by is not sustained suificient evidence. As consequence appellant thereof contends the court have should directed verdict in its favor at the close of all do, the evidence. This the court could not as inasmuch conflicting especially there was evidence introduced relative replacement compres installation of the units and/or Appellant’s following sors. brief contains the statement: allegedly misrepresentation “The fraud and the defendant seems to committed replacement based in No- on the original compressor installation,” vember, 1961 of the in the provoked reply appellees statement this as shown reply brief, their to-wit: “This is not true statement of the facts on No- because
vember 1961 a Weathertron unit was new installed appellant appellees’ states.” home not a *9 appeal only principle the evi that on It is a well settled appellees, to and all reasonable dence most favorable may logical may therefrom inferences be drawn Badgley State; Brown by considered this court. v. 668, 841. 665, Ind. E. 2d State N. v. appellees reveals the The evidence most favorable following: July, operate properly first failed to Weathertron attempts repeated the Appellees contact made 1960. Company through to of Electric its authorized dealers General capable competent repairman or serviceman obtain repairing Finally appellees contacted the Weathertron. Representative, Kneer, an Electric Bernard who took a Mr. with Area General Company Temple Temple Electric Discovering appellees the unit. him home to examine Temple compressor Mr. unit had “shorted” the
that the was asked that so the Kneer to wire around Mr. temporary service be available. would warranty expired that the had on Mr. Kneer asserted After 30, original 1960, appellees on November consented unit purchased. done, unit should be a new This was Temple Company, Electric made at installation was paid by $1,300.00, appellees on which total cost 18, 1961. December purchaser original
Appellant furnished the unit with Replacement Agreement, “A”, 5-Year marked Exhibit purchaser agreed with the a new General wherein C), (Type WT-Form Electric Weathertron * ** refrigerant replace repair system or or . “. any . to charge any thereof, during the five part free of time following original .” years installation . . date brought product “Any tion of chased, to the atten- in said should be defect pur- Electric retailer from whom it was General arrange re- furnish be authorized to or who will warranty replacement pair terms this within or agreement.” replacement appellees Then July, Metal contacted the U. S. Company, appeared warranty, name secure whose repairman. company the services of a This it was no stated longer a Dealer, Electric other General but recommended Dealers, who, upon investigation, General were handling Weathertron, employed and had no serviceman repair Hence, appellees who was trained to this unit. con- every right expect tended that had General Electric Company warranty to honor the to be in was admitted during period July, effect from 1960 to 1960. November evidence, In recital condensed appellee, William *10 Dorr, testified B. as follows: quite Kneer long “Mr. and Mr. Krisher and I had discus- warranty. year and sion get about the I tried for over a G. E. people thing service they out to look after had no this representative posi- They in Evansville. told me that their thing trying
tion this was limited to to establish a dealer any particular failing in Evansville or that area so to do obligation.” had no further jury are of the We that from this evidence the could draw reasonable inferences and men reasonable could form appellant relying
conclusions to the effect that imposed warranty, minor limitations in the contract of using the lack of an Evansville Area General Dealership subterfuge escape major as a lia controlling warranty. bility set forth and in the appeal by In determination of an this court is bound by Supreme Court, the Rules statutes and case law. Foundry In Riehl et v. The Evansville al. Association (1885) 70, 633, quote 104 3 E. Ind. we this N. statement: great cases, has been in a number of “It held court this not, weigh trial not, evidence, accept can and will but will trustworthy.”
that taken court as Union See: Township First National Bank School v. Crawfordsville (1885) 2 Ind. N. E. 194. Stout, Indianapolis Louis In St. Railroad Co. v. (1876) 143, 147, the court said: Administrator 53 Ind. every indulge Supreme duty “It is the Court presumption in of the correctness presumed favor reasonable been general verdict, is to have which upon the matters the substantial merits of rendered in controversy.” probative value think there was sufficient evidence We jury jury in the case at bar from submitted reasonable inferences to sustain its verdict could draw allegations appellees appellees’ favor of set forth Complaint. Paragraph Amended II the Third Armstrong v. It has been well said in the case of Cork Co. App. 105, 2d Maar Ind. 111 N. E. as follows: probative “There evidence of value which went * ** jury reasonable sidered such jury draw and from which could evidence inferences, and, if con- even the evidence be con- reasonable men could form different prerogative nor therefrom, yet, it neither our clusions judgment jury.” privilege to substitute our question, sufficiency Thus, of the evidence is in when the evidence, weigh but bar, will not in the case this court affirmed, to case is may search the record when we *11 probative in any value evidence ascertain if there is may de legal any record, inferences which or jury, or which, the court if believed therefrom, duced verdict. would sustain the bar, evidence that the in case are of
We appellees sustains the verdict presented most favorable judgment there- entered jury verdict and and that said contrary to law. court are not on hereby judgment error, is and the reversible find no We affirmed.
Judgment affirmed.
Smith, J., J., and Mote concur. C. only. J.,
Hunter, concurs result Reheaeing On Petition foe Rehearing, alleges Appellant, in its Petition for y, Bierl J. — summarizing facts, that this erred court to-wit: appellees “Bernard Kneer and Mr. Krisher informed faulty although except nothing wrong was the unit with as compressor, necessary it new unit would be to install a required by ‘company policy’ Electric of the General Company.” Appellant contends the above statement based Upon case, the record. par- a re-examination of this ticularly transcript, many passages we have found testimony supports summary; particularly, our on Dorr, following direct examination of William wherein the question quoted transcript: answer is from the
“Q. Did Mr. explain you Knear or Mr. Krisher ever why compressor couldn’t be fixed instead buying the whole new unit? Yes, “A. factory said it was all assembled at the complete unit and was not suitable for field re- placement. replaced could not be the field.”
Also, on the direct examination of Bernard Kneer for the following defendant, questions given: and answers were “Q you get 16 I want to the conversation Mr. between Krisher, yourself and Mr. Dorr. “A told Dorr We Mr. if the out machine was of war- ranty and the information had had was that we original purchaser he not the equip- warranty, ment it stated our General Company policy that he would have buy give unit and we him new an estimate price and I think it was around Thirteen-
hundred dollars.
456
“Q type you serviced that ever installed or Had 17 equipment? “A Yes.
“Q you company policy? with the 18 Are familiar “A Yes. re-
“Q company policy? That is was with 20 What replacing? spect to warranty company policy to follow The was “A here; we printed in evidence as we had as warrant purchaser of each new— respect replac- company policy “Q with was What ing ? unit, if defective warranty replaced. “A If defective policy? warranty “Q out of what was If it was replaced unit. date, the whole we At that “A re/igeration cycle. call it We compose “Q units the whole unit? 23 What replaced cycle compressor, is is the “A part evaporator coil, condensor coil and wiring circuit. something wrong “Q words, if other went 23 In with you replaced all of that? the condensor Yes at date. any “Q reason for that? there 24 Was factory unit in a assembled “A The reason than a field is more unit.” ef/ecient passages justify sum- that these our We are mary the facts. rehearing petition its
Appellant’s contention in second In- Instruction our consideration of No. 6. based plaintiffs’ instruction which was No. was the struction by appellant, jury. objections instruc- given, over This objections appellant’s are out thereto set below: tion 6NO.
INSTRUCTION preponderance evi- you find from a fair should “If necessary to install a new Weathertron that it was dence agents represented unit at time the defendant’s *13 plaintiff Dorr, required, B. William that a new unit was necessary only replace compres- when fact it was you Weathertron, sor on said if further find should this, that the defendant or knew should have known then misrepresentation part this would be a and fraud on the plaintiffs of covery re- the defendant and the be entitled would Paragraph damages complaint on II their of for the they misrepresentation sustained, any, if as result of a said part defendant, on and fraud of said General Company.” objection giving appellants’ The to the of this is instruction as follows : open “In presence Court out of the Jury, the De- objects giving
fendant to the Court the Plaintiffs’ Instruc- tion No. 6 for the reason that this Instruction informs the Jury that if the defendant knew or should have known that necessary replace it replace unit, only not the entire but compressor, misrepre- that this would then be a part sentation and fraud on the of the defendant. “This Instruction is erroneous in that in and to establish misrepresentation, necessary fraud and is it falsity the defendant guilty knowledge have of the statements and purpose deceiving for that it makes it of Plaintiffs and expectation hope that Plaintiffs will are made with the that misrepresentations.” act said any misinterpretation In order to avoid and misunder standing applied case, of it the law as is to this and cases future, a nature which will is
of similar arise it obligation original clarify opinion our court’s light appellant’s Rehearing. of Petition for appellant above, contends that Instruction No. out set appellant’s is and in direct conflict with Instruc- erroneous tion reads as No. follows: presumed, recovery is not “Fraud and to a for warrant proved. or it a
fraud deceit must be averred and make To damages complaint good general resulting fraud- from a given substance, representation must, fact, ulent be averred a it proven (1) defendant made material that a false; representation existing fact; (2) as it was to an that knowing false, it it, made (3) it or that he to be made positive knowledge as a recklessly, assertion of its truth and without plaintiff fact; (4) to induce that was made thereon; it; (5) plaintiff it and acted on that relied on to act doing injury for which he an so suffered sought. recovery plaintiff has established Unless conditions, evidence, above preponderance all complaint and Paragraph II of their he cannot recover the Plaintiff’s your be for the defendant on verdict must Paragraph Complaint.” Second alleged appellant charges conflict, this result of As a proper jury misled and confused to the law in follow. case to an Instruction 6 is not are of the No.
We instruction, Instruc- and thus does conflict with erroneous *14 10. tion No. Reynolds 119 Ind. (1949) of Clarke Auto v.
In the case Co. 586, 775, law 2d we the statements of App. 88 N. E. find position, supporting supporting our as well as citations those Page case, Beginning 592, the above cited of statements. following: quote approval the with we involving bone of had “In a case spavin, the sale a stallion which Ind. said, (1916) 62 Martin Shoub this court v. 586, App. N. E. 386: 113 appellant made as to the Tf statements horse’s condition have false, he or should known were which induced knew thus purchase relying can him, appellee to on such state- such ments, merely effect of fraud not overcome the be expressly omitting contract Be- warranties. buyer so successful fraud was induce cause the warranty without a is all more a contract take to reason liability there should on the fraud.’ that agent appellant made officer or of that who fact “The representations falsity, not of their does not did know Supreme recovery. said our appellee’s As was Court bar (1889) 22 Kirkpatrick 280, et al. 121 N. E. v. Reeves Ind. 139: exists, unqualified that fact made for statement ‘An upon inducing it, implies that another act
purpose of
459 person speaks exist, who makes it knows it knowledge. exist, from his own the fact does not If knowledge does, own that the defendant states his statement, another to law induces act his purpose.’ impute him will a fraudulent (1925) App. “See also: v. Hume 149 Williams Ind. 371, 536, 355; Myers App. v. Ind. N. E. Wheatcraft 81; Thayer App. (1920), Romine 107 N. E. 128 v. 74 Ind. 456; Cyc. Blashfield, Law and N. E. Automobile Practice, 4232.” § light foregoing authority, In no error we find regard appellant’s instruction No. 6 was contention thereby requiring erroneous a reversal. opinion appellant’s are the remainder
We Rehearing presents questions Petition for no which were original opinion. covered our foregoing
For reasons are of we Rehearing Petition should be denied. Rehearing
Petition for
Denied.
Reported
Rehearing
in
Jones, Trailer et al. Sales Sommers v. d/b/a K-C Trailer Sales. d/b/a 20,224. April 26, Rehearing [No. Filed 1966. denied June 1966. *15 Transfer denied March 1967.]