Ferdinand Furniture Co., Inc. v. Anderson

• Decision Date: 30 January 1980
• Docket Number: No. 2-177A31,2-177A31
• Citation: 399 N.E.2d 799
• Parties: FERDINAND FURNITURE COMPANY, INC., a corporation, Appellant-Plaintiff, v. R. M. ANDERSON, R. M. Anderson d/b/a R. M. Anderson Co., Appellee-Defendant.
• Court: Indiana Appellate Court

Page 799

399 N.E.2d 799

FERDINAND FURNITURE COMPANY, INC., a corporation, Appellant-Plaintiff, v. R. M. ANDERSON, R. M. Anderson d/b/a R. M. Anderson Co.,

Appellee-Defendant.

No. 2-177A31.

Court of Appeals of Indiana, Second District.

Jan. 30, 1980.

Rehearing Denied Feb. 27, 1980.

Charles S. Gleason, Watson, Gleason & Hay, David A. Greene, Indianapolis, for appellant.

Robert A. Claycombe, Kothe, Shotwell, Claycombe, Hendrickson & Kortepeter, Indianapolis, for appellee.

SULLIVAN, Judge.

On June 18, 1970, a fire broke out in the vicinity of the drying oven at the Ferdinand Furniture Company. The building and its contents were destroyed. Ferdinand Furniture had purchased the heating unit for the oven from R. M. Anderson Company, Inc., ¹ (Anderson) of which R. M. Anderson was the president and principal shareholder. Ferdinand Furniture brought this action against Anderson seeking damages for injury to real and personal property upon three counts: negligence, strict liability and breach of implied warranty.

At the close of the plaintiff's case-in-chief, Anderson moved for involuntary dismissal pursuant to Indiana Rules of Procedure, Trial Rule 41(B). The trial court took the matter under advisement. When the parties were called back into court, the court announced that the motion was overruled, but advised Anderson that if he rested his case, judgment would be entered for the defendant. Anderson rested and judgment was so entered.

Ferdinand Furniture argues:

I. Its claims for damages to personal property were not barred by the statute of limitations.

II. The trial court, after overruling a motion for involuntary dismissal at the close of plaintiff's evidence, was precluded from entering judgment for the defendant when the defendant presented no evidence.

We affirm.

I. STATUTES OF LIMITATION

Anderson presented affirmative defenses that the claims for damage to personal property were barred since the action was brought more than two years after the date of the fire ² and that the claim for breach of implied warranty was barred in that it had been brought more than four years from the date of the tender of delivery of the heating unit. ³ The trial court made the following Findings of Fact:

"Count I

14. This action was not commenced within two (2) years from the date of the fire.

Count III

15. The tender of delivery of the heating unit was made by R. M. Anderson Co., Inc., to Ferdinand Furniture Co., Inc. on March 4, 1969. This action was not filed within four (4) years from that date when tender of delivery was made."

Ferdinand Furniture argues that these findings are contrary to the evidence since they are matters of affirmative defense and defendants elected to rest as a result of the urging of the Judge and offered no evidence on these points.

The party pleading the statute of limitations bears the burden of proving that the suit was commenced beyond the statutory time allowed. D. E. F. v. E. M. (1st Dist. 1977) Ind.App., 363 N.E.2d 1030. Ferdinand Furniture contends that this burden required Anderson to present evidence on this issue. Neither party cites authority nor does our research disclose Indiana case authority. However, the Utah Supreme Court in Holloway v. Wetzel (1935) 86 Utah 387, 390-91, 45 P.2d 565, 567, stated:

"While it is true that the burden of proof is upon the party pleading the statute of limitations to establish that the alleged claim is barred, still, if the evidence of the plaintiff shows the action to be barred, there is no necessity for any further evidence on the question required on the part of the defendant. It must be obvious that the defendant is not called upon to prove a defense already proved by the plaintiff in order to avoid an assumption that the defense has been abandoned." The law does not require the doing of a useless act."

We find this reasoning compelling. If the evidence presented during the plaintiff's case-in-chief discloses that the statute of limitations has run, to require the defendant to present essentially the same evidence during his "side" of the case would be to exalt form over substance.

A review of the record discloses evidence sufficient to support the trial court's findings that the suit was not brought within the applicable periods. The factory building was consumed by fire on June 18, 1970. A claim for injury to personal property accrues at the time one has suffered a legal injury and resulting damages susceptible of ascertainment. Montgomery v. Crum (1928) 199 Ind. 660, 161 N.E. 251; Essex Wire Corp. v. M. H. Hilt Co. (7th Cir. 1959) 263 F.2d 599. Ferdinand Furniture's claim, therefore, accrued when the fire occurred. The complaint in the instant case was filed October 30, 1973, well past the two year statutory period of I.C. 34-1-2-2.

An action for breach of implied warranty must be commenced within four years after tender of delivery. I.C. 26-1-2-725(1) and (2). The trial court found that tender of delivery of the heating unit was made in March, 1969. Again, the face of the Complaint shows that the action was brought beyond the statutory period.

Ferdinand Furniture insists that its action is saved from the bar of the statute of limitations by our Journey's Account Statute, I.C. 34-1-2-8 (Burns Code Ed.1973), which declares that:

"If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abate, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five (5) years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated."

The record does disclose that an action was brought in the Dubois County Circuit Court on May 26, 1972, in the name of ten insurance companies as subrogees of Ferdinand Furniture, against Anderson alleging negligence, strict liability and breach of implied warrant. This action was voluntarily dismissed on the plaintiffs' Motion on July 9, 1973.

Ferdinand Furniture argues that this prior action had been timely filed, that the gist of the motion to dismiss was to secure a dismissal without prejudice for the purpose of permitting a timely refiling of the claims in the Marion County Superior Court, and that therefore, the second action should be considered a continuation of the first within the meaning of the above statute. This argument fails. ⁴ In Pennsylvania Co. v. Good (1913) 56 Ind.App. 562, 567, 103 N.E. 672, 673-74 the court held:

"A plaintiff who voluntarily dismisses his action cannot be said to have failed to obtain a decision on the merits. A plaintiff cannot be said to "fail" within the meaning of this statute unless he makes an unavailing effort to succeed. If he makes such an effort in good faith, and fails upon some question which does not involve the merits of his case, and if such failure is not due to negligence in its prosecution, the statute may be held to apply."

See also, Ware v. Waterman (1969) 146 Ind.App. 237, 253 N.E.2d 708. Two cases cited by Ferdinand Furniture are not persuasive. In Abele v. A. L. Dougherty Overseas, Inc. (N.D.Ind.1961) 192 F.Supp. 955, we are told only that the plaintiff's first action had been dismissed without prejudice. We are not told why the action was dismissed nor upon whose motion. In Eves v. Ford Motor Co. (1st Dist. 1972) 152 Ind.App. 34, 281 N.E.2d 826, the plaintiff's actions in federal court were dismissed for lack of jurisdiction. Neither case squarely presents the situation found in the instant case and in Pennsylvania Co. v. Good, supra.

Ferdinand Furniture's action is not saved by the Journey's Account Statute and we hold that the trial court did not err in finding that the claims for injury to personal property and for breach of implied warranty were barred by the statute of limitations. We note, however, that Ferdinand Furniture sought damages for injury to both real and personal property. The statute of limitations for injuries to property other than personal property is six years. I.C. 34-1-2-1 (Burns Code Ed. 1973). Therefore, claims for injury to real property were not barred by the statute of limitations and the judgment for Anderson may not rest solely upon that ground.

II.

DENIAL OF TR 41(B) MOTION AS PRECLUDING JUDGMENT FOR MOVING

PARTY WITHOUT SUBMISSION OF EVIDENCE

TR 41(B) provides:

"(B) Involuntary dismissal: Effect thereof. After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that considering all the evidence and reasonable inferences therefrom in favor of the party to whom the motion is directed, to be true, there is no substantial evidence of probative value to sustain the material allegations of the party against whom the motion is directed. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff or party with the burden of proof, the court, when requested at the time of the motion by either party shall make findings if, and as required by Rule 52(A). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision or subdivision (E) of this rule and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits."

The trial court, in announcing its ruling on Anderson's motion, stated:

"At the conclusion of Plaintiff's evidence, the Defendant, Anderson, moved for a finding and judgment pursuant to Trial Rule 41(B) on all counts of the Complaint. The Court having had said motion under...