Hendrickson & Sons Motor Co. v. Osha

• Decision Date: 30 July 1975
• Docket Number: No. 1--374A44,1--374A44
• Citation: 331 N.E.2d 743,165 Ind.App. 185
• Court: Indiana Appellate Court
• Parties: , 18 UCC Rep.Serv. 870 HENDRICKSON & SONS MOTOR CO., Appellant (Defendant below), v. Michael V. OSHA, Appellee (Plaintiff below), General Motors Corporation, Appellee (Defendant below).

Page 743

331 N.E.2d 743

165 Ind.App. 185, 18 UCC Rep.Serv. 870

HENDRICKSON & SONS MOTOR CO., Appellant (Defendant below), v. Michael V. OSHA, Appellee (Plaintiff below) General Motors Corporation, Appellee (Defendant below).

No. 1--374A44.

Court of Appeals of Indiana, First District.

July 30, 1975.

Rehearing Denied Sept. 8, 1975.

Donald G. Hendrickson, Boonville, for appellant.

Ronald Warrum, Evansville, S. Anthony Long, Boonville, for appellee Michael V. Osha.

Robert H. Hahn, George A. Porch, Evansville, for appellee General Motors Corp.; Bamberger, Foreman, Oswald & Hahn, Evansville, of counsel.

LYBROOK, Judge.

The instant litigation stems from a dispute between the purchaser of an automobile and its seller and manufacturer concerning the applicability of a written new car warranty agreement to certain labor and repair work performed by the seller at its place of business. The evidentiary and procedural facts necessary to form an understanding of the issues presented by this appeal are as follows:

On November 2, 1968, plaintiff-appellee Michael V. Osha purchased from defendant-appellant Hendrickson & Sons Motor Co. (Hendrickson) a new 1969 model Chevrolet automobile manufactured by defendant-appellee General Motors Corporation (GM). By written agreement, the automobile was, with certain exclusions and limitations, warranted to be free from defects in material and workmanship for twelve months from the date of delivery or until it had been driven twelve thousand miles, whichever first occurred. With respect to power train components, warranty coverage continued until the expiration of five years or until the automobile was driven fifty thousand miles, whichever first occurred.

The controversy in the case at bar revolves around costs for parts and labor furnished by Hendrickson at Osha's request on five separate occasions. Osha was billed by Hendrickson for the work performed on each of these occasions. No payments had been remitted by Osha as of the date of trial. A summary of the parts and labor furnished and the charges therefor is as follows:

                (1) May 8, 1969, repl. right rear
                    brake linings and drum.           $ 35.01
                (2) May 21, 1969, repl. exhaust
                    system; repair brake line
                    (Odometer reading noted on
                    repair order--15,673 miles).        58.18
                (3) August 11, 1969, clutch repair.     81.87
                (4) August 25, 1969, repl.  Shock
                    absorber).                          14.78
                (5) December 29, 1969, remove engine
                    and inspect internal parts.         54.00
                                                      -------
                                    Total             $243.84
                

Following removal of the automobile's engine on the last of the above listed occasions, a representative of GM inspected damaged internal parts. GM declined warranty coverage for repair of the engine, taking the position that the damage had not resulted from any defect in material or workmanship but had been caused by alterations and abuse by Osha. When Osha failed to authorize repair at his own expense, Hendrickson retained possession of the automobile in its disassembled state and continued to seek payment from Osha for all of the above listed amounts.

On May 25, 1972, Osha brought suit against Hendrickson and GM seeking damages for breach of warranty, ¹ conversion and negligent injury to personal property. Exmination of the pre-trial order, various stipulations entered into during the course of the litigation, and plaintiff's evidence reveals that, for reasons not disclosed by the record, Osha did not consider Hendrickson to be a warrantor on the written warranty agreement and that his claim of breach of warranty was directed solely to GM. Further, Osha stipulated with GM that the only issue between them was the warrantability of the damage to internal engine parts discovered on December 29, 1969. Osha further stipulated that he was asserting no warranty claim against GM for repairs performed on occasions (1), (2), (3) and (4) listed above. Likewise, the record reveals that Osha's claim for conversion and negligent injury was directed solely to Hendrickson and was based upon the alleged unlawful retention of the automobile since December 29, 1969, and alleged physical damage and loss sustained by the automobile while in Hendrickson's possession.

Hendrickson denied the material allegations of Osha's complaint and counterclaimed seeking judgment for all of the above listed charges for work performed upon the automobile. Hendrickson further asserted a possessory lien for the value of labor performed on occasion (5) and sought a judgment of foreclosure. Hendrickson also claimed storage charges of one dollar per day from December 29, 1969. During trial, Osha and Hendrickson stipulated before the jury that the parts and labor performed on occasions (1), (3) and (4) were not covered by the express warranty. However, Osha asserted warranty as a defense to Hendrickson's counterclaim with respect to parts and labor furnished on occasions (2) and (5). ²

GM defended Osha's warranty claim on the grounds that the damage to the internal parts of the engine were caused by alteration and abuse by Osha rather than any defect in material or workmanship.

On the fifth day of trial, the cause was submitted to the jury which returned verdicts leaving the parties in effectively the same positions in which they stood prior to trial. On Osha's claim against GM, it found in favor of GM. On Osha's claim against Hendrickson, it found in favor of Osha and against Hendrickson in the sum of $1210.00. On Hendrickson's counterclaim, the jury found in favor of Hendrickson and against Osha in the sum of $1210.00.

Thereafter, Osha moved for judgment on the jury's verdict in his favor on his claim against Hendrickson and moved for judgment on the evidence on Hendrickson's counterclaim. Likewise, Hendrickson moved for judgment on the jury's verdict in its favor on its counterclaim against Osha and moved for judgment on the evidence on Osha's claim.

Following argument on the various motions, the trial judge entered the following findings:

'(1) Plaintiff's motion for judgment on the verdict in the amount of One Thousand Two Hundred Ten Dollars ($1,210.00) plus costs in favor of plaintiff and against Hendrickson should be granted, and judgment should be rendered in that amount.

(2) Plaintiff's motion for judgment on the evidence as to the verdict in favor of Hendrickson and against the plaintiff should be granted to the extent the verdict is not supported by the evidence, is contrary to the evidence and the law, and is excessive, and judgment should be rendered in the amount of Two Hundred Forty-three Dollars and Eighty-four Cents ($243.84) for Hendrickson & Sons Motor Co. against the plaintiff on Hendrickson's counterclaim. Hendrickson & Sons Motor Co. should hereafter be the owner of the 1969 Chevrolet automobile now in its possession.

(3) All other pending motions should be overruled.

(4) The Court should render judgment on the verdict against plaintiff on its own motion on plaintiff's claim against General Motors Corporation.'

The court then entered judgment pursuant to the above findings. Thereafter, Hendrickson filed its motion to correct errors which was overruled.

In this appeal, Hendrickson presents the following issues for review:

(1) Whether the trial court erred in allowing the testimony of a witness called on behalf of Osha whose name did not appear on the lists of witnesses contained in the pre-trial order.

(2) Whether the trial court erred in admitting into evidence certain exhibits offered by Osha.

(3) Whether the trial court erred in permitting Osha's testimony concerning the substance of a certain telephone conversation with a third party.

(4) Whether the trial court erred in refusing certain of Hendrickson's tendered instructions.

(5) Whether the trial court erred in giving over objection certain of Osha's tendered instructions.

(6) Whether the trial court erred in overruling Hendrickson's motions for judgment on the evidence on Osha's claim made at the close of plaintiff's evidence and at the close of all the evidence.

(7) Whether the trial court erred in granting in part Osha's motion for judgment on the evidence and overruling Hendrickson's motion for judgment on the evidence, which motions were made subsequent to the verdicts of the jury yet prior to the entry of judgment on the verdicts.

I.

Osha has asserted general waiver by Hendrickson of all contentions of error raised in this appeal. First, he argues that Hendrickson's motion to correct errors and the memorandum thereto lack requisite specificity to present any questions to the trial judge or preserve any issues for review by this court. Secondly, it is argued that the effect of the post-trial motions for judgment on the evidence by both Osha and Hendrickson constituted a waiver of trial by jury and resulted in a joint submission of the case to the court on the evidence. Osha therefore contends that only issues applicable to a trial to the court are relevant for consideration on appeal and that since Hendrickson's issues are framed in the context of errors relevant only in a jury trial, no reviewable issues have been preserved.

We cannot agree with either of Osha's contentions. With respect to the assertion of the inadequacy of the motion to correct errors, we are cognizant of the requirements that the statement of claimed errors in the motion must be specific rather than general and must be accompanied by a statement of the facts and grounds upon which error is based. Ind. Rules of Procedure, Trial Rule 59(B). In determining whether the requirement of specificity has been met, the motion should be read together with its supporting memorandum. Leist v. Auto Owners Insurance Co. (1974), Ind.App., 311 N.E.2d 828; Indiana Department of State Revenue v. Frank Purcell Walnut Lumber Co. (1972), Ind.App., 282 N.E.2d 336. While Hendrickson's motion to correct errors is cast in general terms, ...