Garcia v. Color Tile Distributing Co.

CourtSupreme Court of New Mexico
Citation75 N.M. 570,1965 NMSC 139,408 P.2d 145
Docket NumberNo. 7687,7687
PartiesIsaac GARCIA and Pola Garcia, his wife, Plaintiffs-Appellees, v. COLOR TILE DISTRIBUTING COMPANY, a foreign corporation, Defendant-Appellant.
Decision Date22 November 1965

Threet, Threet, Glass & King, Albuquerque, for appellant.

Charles E. Barnhart, Albuquerque, for appellees.

CARMODY, Chief Justice.

The defendant in the trial court has appealed from a judgment rendered against it by the district court sitting without a jury. With one exception hereinafter discussed, the appeal relates entirely to an attack on certain of court's findings and the contention that the court failed to adopt requested findings to the contrary. For the reasons hereafter stated, we affirm the judgment of the trial court.

Plaintiffs (husband and wife) contracted with the defendant to have laid some Armstrong's Hydrocord Linoleum in a portion of the plaintiffs' house. Prior to the installation of the linoleum, the plaintiffs placed a quarter-inch plywood covering over the existing concrete floor. This was done after consultation with the employees of the defendant. The defendant then completed the installation of the linoleum and guaranteed it, but within a matter of days the floor began to buckle.

Without setting out the findings which are attacked, suffice it to say that the defendant claims that the undisputed evidence as to the size of concrete nails used to affix the plywood to the concrete base was to the effect that the defendant instructed the plaintiffs to use three-quarter-inch nails, not five-eighths-inch nails, maintaining that if the plaintiffs had done so the plywood would have adhered to the concrete surface and no buckling would have resulted. In this same connection, the defendant also attacks the trial court's finding that the sole cause of the buckling was the fact that water would be drawn through the concrete, thereby causing a separation of the plywood plies and that this in turn would cause the linoleum to buckle.

The trial court's finding was to the effect that the sole cause of the failure of the floor was the negligence of the defendant, whereas the defendant claims that the sole cause was the faulty installation of the plywood subflooring.

Before proceeding to the disposition of the defendant's basic attack on the findings, we would observe that there is no evidence that the plywood plies actually separated, or that the linoleum was not proper. Such statements were in the nature of evidentiary findings and were in no sense necessary for the trial court's decision. The making of such findings, however, does not require a reversal if there remain sufficient findings upon which to sustain the judgment. See Koeber v. Apex-Albuq Phoenix Express, 1963, 72 N.M. 4, 380 P.2d 14, 29 A.L.R.3d 1368; Melfi v. Goodman, 1963, 73 N.M. 320, 388 P.2d 50; Board of County Com'rs of Dona Ana County v. Little, 1964, 74 N.M. 605, 396 P.2d 591; and Paulos v. Janetakos, 1939, 43 N.M. 327, 93 P.2d 989. It is implicit in the findings made by the trial court that the defendant knew, or should have known, that mosturre would be drawn through the concrete and that this, in turn, would cause a buckling of the plywood unless the plywood was attached to the concrete with nails of sufficient length to hold it in place. Whether, in the process, the plies separated is of no consequence.

The defendant fully recognizes the burden placed upon it in attacking the findings of the trial court, but, in our judgment, the burden has not been overcome. Without restating the rule adopted in this jurisdiction and supported by cases almost without number, we are of the opinion that the ultimate findings made by the trial court are based upon substantial evidence. The length of the nails used was the principal source of controversy. Admittedly, all of the defendant's testimony was to the effect that the plaintiffs were instructed to use three-quarter-inch nails; nevertheless, there is evidence of a substantial nature to support the trial court's finding that the use of five-eights-inch nails was verbally affroved by defendant's agent. Therefore, defendant's attack is futile. A careful examination of the testimony discloses a conflict in the proof, the resolution of which is within the province of the trial court, and we will not distrub the judgment. This being so, it also follows from the rule of long standing that the findings requested by the defendant, in conflict with those found by the court, were properly denied.

The defendant also asserts that the trial court erred in making findings to the effect that the plaintiffs were not skilled or experienced in covering floors with linoleum, whereas the defendant's agents were experts in the held, and that therefore the plaintiffs were entitled to rely on the advice of the defendant's agents when they did the preparatory work in installing the plywood flooring. Here, again, we are satisfied, although admittedly the evidence is in conflict, that there was substantial evidence that the defendant, which held itself out as an expert, was negligent in proceeding with the installation of the linoleum after approving the use of nails which were too short for the intended purpose. Of course, the defendant could not be placed in the position of an insurer, but,...

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10 cases
  • Melody Home Mfg. Co. v. Barnes
    • United States
    • Supreme Court of Texas
    • 4 novembre 1987
    ...1983, writ ref'd n.r.e.); Burnett & Bean v. Miller, 205 Ala. 606, 88 So. 871, 872 (1921). Cf. Garcia v. Color Tile Distrib. Co., 75 N.M. 570, 408 P.2d 145, 148 (1965); Fairbanks, Morse & Co. v. Miller, 80 Okl. 265, 195 P. 1083, 1090 Page 355 (1921). We do not require repairmen to guarantee ......
  • Moss Theatres, Inc. v. Turner, 4109
    • United States
    • Court of Appeals of New Mexico
    • 14 août 1980
    ...warranted that he would exercise such reasonable degree of skill as the nature of the services required. Garcia v. Color Tile Distributing Company, 75 N.M. 570, 408 P.2d 145 (1965); Andriola v. Milligan, 52 N.M. 65, 191 P.2d 716 (19) If you find that the fence constructed by Defendant was n......
  • State ex Rel. Risk Management Div. of Dept. of Finance & Admin. v. Gathman-Matotan Architects, GATHMAN-MATOTAN
    • United States
    • Court of Appeals of New Mexico
    • 10 août 1982
    ...use reasonable skill under contract law, set out in N.M.U.J.I.Civ. 8.26, N.M.S.A.1978 (Repl.Pamph.1980). Garcia v. Color Tile Distributing Company, 75 N.M. 570, 408 P.2d 145 (1965); Clear v. Patterson, 80 N.M. 654, 459 P.2d 358 (Ct.App.1969). Instruction 8.26 states When a person undertakes......
  • H. T. Coker Const. Co. v. Whitfield Transp., Inc., 1236
    • United States
    • Court of Appeals of New Mexico
    • 9 janvier 1974
    ...out above, the findings are sufficient to support the conclusion that plaintiff should not recover. Garcia v. Color Tile Distributing Company, 75 N.M. 570, 408 P.2d 145 (1965). Plaintiff also claims that the trial court applied an erroneous theory in one of its conclusions of law. This conc......
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