324 N.E.2d 834 | Ind. Ct. App. | 1975
Grace STRONG and Lewis Strong, Husband and Wife, Appellants (Plaintiffs below),
v.
COMMERCIAL CARPET CO., INC. and Kenneth Bullington, Appellees (Defendants below).
Court of Appeals of Indiana, First District.
Gerald G. Fuchs, Evansville, for appellants.
Robert H. Hahn, George A. Porch, Evansville, for appellee; Bamberger, Foreman, Oswald & Hahn, Evansville, of counsel.
ON PETITION FOR REHEARING
LYBROOK, Judge.
In order to clarify the ruling of this court in our original opinion in this cause, we deem it necessary to issue a written opinion on defendants-appellees' petition for rehearing.
Our opinion, reported at Ind. App., 322 N.E.2d 387, declared that pursuant to prior case law and existing rules of pleading and procedure, it was entirely proper for appellants *835 to seek relief on alternative theories of breach of contract and negligence. We also held that since appellants had presented evidence on each element of their contractual claim it was reversible error for the trial court to sustain petitioner's motion for judgment on the evidence as to the contract theory. Accordingly, we reversed the judgment of the trial court and ordered a new trial. In doing so, however, it was not the intention of this court to order a new trial upon the theory of negligence. Inasmuch as the record supported the jury verdict for petitioners on the count of negligence, judgment thereon in favor of petitioners should have been and is hereby affirmed.
Cause remanded for trial upon the breach of contract theory only. In all other respects, petitioners' request for rehearing is denied.
ROBERTSON, C.J., and LOWDERMILK, J., concur.