Capitol Builders, Inc. v. Shipley, No. 2-281A65

• Docket Nº: No. 2-281A65
• Citation: 439 N.E.2d 217
• Case Date: August 31, 1982
• Court: Court of Appeals of Indiana

Page 217

439 N.E.2d 217 CAPITOL BUILDERS, INC., Appellant (Defendant Below),
v.
David L. SHIPLEY Elaina J. Shipley, Appellees (Plaintiffs Below). No. 2-281A65. Court of Appeals of Indiana,
Second District. Aug. 31, 1982.

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John G. Forbes, Forbes & Pennamped, A Professional Corp., Indianapolis, for appellant.

David A. Clase, Harper & Clase, Indianapolis, for appellees.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant Capitol Builders, Inc. (Capitol) appeals from a judgment of $10,000 entered in favor of plaintiffs-appellees David L. Shipley and Elaina J. Shipley (the Shipleys) in their action for negligence and breach of warranty in constructing a home, claiming that the trial court erred in instructing the jury, refusing to grant judgment on the evidence in Capitol's favor, admitting certain testimony, and allowing the pre-trial order to be amended. Capitol also alleges that the evidence was insufficient to support the judgment and the damages awarded were excessive.

We affirm.

FACTS

The evidence most favorable to the judgment discloses that on August 17, 1970, the

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Shipleys entered into a contract with Capitol for the construction of a dwelling house at 11607 East Crestwood Court in Indianapolis. The contract specified that Capitol "will do all work in good and workmanlike manner ...." Record at 162. The total contract price was $20,235.

David Shipley testified as to the process by which he and his wife selected the brick to be installed on their home's exterior. A salesman for Capitol provided the Shipleys with several samples and instructed them to "pick one." Id. at 168. They chose a charcoal-colored brick manufactured by Adams Clay and Tile Company (Adams) based solely upon its appearance. David Shipley testified that the salesman made no effort to advise the Shipleys, who were unfamiliar with brick manufacturing methods, as to any differences in quality among the various samples:

Q Mr. Shipley, in selecting--in selecting this brick were--did you have any discussions with the salesman for Capitol about brick?

A None other than the appearance of the brick itself. There was no--no further discussion one way or the other. Just which--he said pick one and then it was said that's number such and such in charcoal--the Adams Clay charcoal. And it was written down on the contract and that was all.

Q And did the salesman give you any guidance with the type of brick that you selected?

....

A None whatsoever. It was just a matter of color and style. There was no indication that there was any difference in quality one way or another.

Id. at 168-69.

David Shipley was at the construction site on the day the exterior brick was installed. He testified that bricklayer Maynard L. Houston (Houston) showed him a mortar joint and asked, "How do you like this one?" Id. at 224. Shipley responded that he liked its looks. Houston did not display other types of mortar joints. Nor did he explain differences among joints to Shipley, who was uninformed as to various methods of brick installation.

Construction of the Shipleys' home was completed in January, 1971. In April, 1971, the Shipleys observed thin layers breaking from the faces of several of the home's exterior bricks (spalling). The deterioration became widespread and was still occurring when the Shipleys filed suit against Capitol on April 8, 1976.

The Shipleys' complaint alleged negligence and breach of Capitol's warranty to construct the home "in good and workmanlike manner." Damages of $6,000 were requested. A pre-trial order entered after a pre-trial conference also claimed $6,000 damages.

Steven Tiekie (Tiekie) and Edward W. Rodke (Rodke) testified as expert witnesses on behalf of the Shipleys. Tiekie is a masonry contractor who had laid brick, supervised bricklaying, and purchased necessary materials for eighteen years as of the time of trial. Rodke, also a masonry contractor, had selected and laid brick and supervised bricklaying for over thirty years as of the trial date.

Tiekie testified as to the two primary types of brick, hard and soft. Hard brick, he indicated, is "cooked" longer than soft brick. Consequently, hard brick is less porous--and more durable--than soft brick. Because moisture passes readily through soft brick, it tends to "pull the chemicals out of the mortar" by which bricks are joined, thereby inhibiting bonding. Id. at 284. So a moisture-proof type of mortar joint, called a tooled joint, must be used with soft brick. The use of a so-called raked joint permits moisture to seep into soft brick. This seepage can ultimately cause the brick to spall, or break off in chips or fragments.

Tiekie testified that he had used brick manufactured by Adams extensively in connection with home construction during 1969 and 1970. He classified Adams brick as a soft brick and indicated that it had a marked tendency to spall. His examination of

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the Shipleys' house revealed widespread spalling, caused in his opinion by the use of soft brick in conjunction with a raked joint. David Gray (Gray), president of Capitol, acknowledged that the deterioration of the Shipleys' home was the result of using a raked mortar joint.

Rodke testified that the Shipleys asked him to calculate the cost of repairing the damage to their house. When counsel for the Shipleys asked Rodke to disclose his estimate, counsel for Capitol requested a hearing outside the presence of the jury "[b]ecause my expectation is that the witness will testify that the cost of repair exceeds the dollar prayer in this case which was a part of the pre-trial entry." Id. at 324. At the hearing, Capitol's attorney objected to any testimony by Rodke as to repair costs and to any amendment of that portion of the pre-trial order relating to damages. Both objections were overruled. Thereafter, the trial court granted the Shipleys' motion to amend the pre-trial order. Capitol's motion for a continuance was denied. Rodke was permitted to testify that replacement of the exterior brick on the Shipleys' house would cost $10,600.

At the close of the Shipleys' case, Capitol moved for judgment on the evidence on the basis that the applicable statutory period of limitation had expired. The motion was denied.

Before the jury retired, the trial court gave the following instructions over Capitol's objection:

FINAL INSTRUCTION 9

GOOD AND WORKMANLIKE MANNER

Good and workmanlike manner is such manner as a reasonably careful and prudent workman possessing the skills of a contractor would perform under the same or similar circumstances.

Id. at 95.

FINAL INSTRUCTION 11

MEASURE OF DAMAGES

Where the damage to real estate is non-permanent in nature, the measure of damages is the cost of restoration or repair.

Id. at 97.

SUPPLEMENTAL FINAL INSTRUCTION

This is an important case. If you should fail to reach a decision, the case is left open and undecided. Like all cases it must be disposed of at some time. Another trial would be a heavy burden on both sides.

There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.

Also, there is no reason to believe that the case would ever be submitted to twelve people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were.

These matters are mentioned now because some of them may not have been in your thoughts.

This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.

This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed.

You may be leisurely in your deliberations as the occasion may require and take all the time you feel necessary.

The giving of this instruction at this time in no way means it is more important than any other instruction. On the contrary, you should consider this instruction

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together with and as a part of the instructions which I previously gave you.

You may retire and continue your deliberations in such manner as may be determined by your good judgment as reasonable people.

Id. at 108.

The trial court refused to give two of Capitol's requested instructions:

TENDERED FINAL INSTRUCTION 3

If you find from a preponderance of the evidence that the exterior brick in question was not patently or obviously defective, then there was no duty on the part of Capitol Builders, Inc. as user of the product to test or otherwise examine the product for hidden or latent defects.

Id. at 57.

TENDERED FINAL INSTRUCTION 4

It is the law that the user of an article manufactured by another is not liable for damages from latent, hidden or non-obvious defects.

So in this case, if you find from a preponderance of the evidence that Capitol Builders, Inc. was the user of exterior bricks and that said exterior bricks were manufactured by another, then Capitol Builders, Inc. would not be liable to plaintiffs for damages sustained for any latent, hidden or non-obvious defects.

Id. at 58.

Capitol tendered the following instruction:

TENDERED FINAL INSTRUCTION 5

You are instructed that the user of a product has only the duty to exercise reasonable care in discovering obvious or patent defects in the product, and has no duty to test or discover hidden or latent defects.

So in this case, if you find that Capitol Builders, Inc. exercised reasonable care in examining the exterior bricks for obvious or patent defects, then, and in that event, it would not be liable to...