General Elec. Co. v. Dorr, 20350

• Decision Date: 25 August 1966
• Docket Number: No. 20350,No. 2,20350,2
• Citation: 219 N.E.2d 206,140 Ind.App. 442
• Parties: GENERAL ELECTRIC COMPANY, Appellant, v. William B. DORR and Rebecca J. Dorr, Appellees
• Court: Indiana Appellate Court

Page 206

219 N.E.2d 206

140 Ind.App. 442

GENERAL ELECTRIC COMPANY, Appellant, v. William B. DORR and Rebecca J. Dorr, Appellees.

No. 20350.

Appellate Court of Indiana, Division No. 2.

Aug. 25, 1966.

[140 INDAPP 443] Robert D. Schuttler, Evansville, for appellant.

Joseph B. Minor, Evansville, for appellees.

[140 INDAPP 455] PETITION FOR REHEARING

BIERLY, Judge.

Appellant, in its Petition for Rehearing, alleges that this court erred in summarizing the facts, to-wit:

'Bernard Kneer and Mr. Krisher informed appellees that although nothing was wrong with the unit except a faulty compressor, it would be necessary to install a new unit as required by 'company policy' of the General Electric Company.'

Appellant contends that the above statement is not based upon the record. Upon a re-examination of this case, and particularly the transcript, we have found many passages of testimony which supports our summary; particularly, on the direct examination of William Dorr, wherein the following question and answer is quoted from the transcript:

'Q Did Mr. Knear or Mr. Krisher ever explain to you why that compressor couldn't be fixed instead of buying the whole new unit?

'A Yes, they said it was all assembled at the factory as a complete unit and was not suitable for field replacement. The compressor could not be replaced in the field.'

Also, on the direct examination of Bernard Kneer for the defendant, the following questions and answers were given:

'Q 16 I want you to get to the conversation between Mr. Krisher, yourself and Mr. Dorr.

'A We told Mr. Dorr if the machine was out of warranty and the information we had had was that he was not the original purchaser of the equipment it stated in our warranty, it was General Electric Company policy that he would have to buy a new unit and we give him an estimate on the price and I think it was around Thirteen-hundred dollars.

[140 INDAPP 456] 'Q 17 Had you ever installed or serviced that type of equipment?

'A Yes.

'Q 18 Are you familiar with the company policy?

'A Yes.

'Q 20 What was the company policy? That is with respect to replacing?

'A The company policy was to follow the warranty as printed as we had in evidence here; that we warrant the purchaser of each new--

'Q 21 What was company policy with respect to replacing the unit, if defective?

'A If defective and in warranty it was replaced.

'Q 22 If it was out of warranty what was the policy?

'A At that date, in 1961, we replaced the whole unit. We call it refigeration cycle.

'Q 23 What units compose the whole unit?

'A The cycle which is replaced is the compressor, the evaporator coil, the condensor coil and part of the wiring circuit.

'Q 23 In other words, if something went wrong with the condensor you replaced all of that?

'A Yes at that date.

'Q 24 Was there any reason for that?

'A The peason was that in a factory assembled unit is more effecient than a field unit.'

We are of the opinion that these passages justify our summary of the facts.

Appellant's second contention in its petition for rehearing is based upon our consideration of Instruction No. 6. Instruction No. 6, was the plaintiffs' instruction which was given, over objections by appellant, to the jury. This instruction and appellant's objections thereto are set out below:

INSTRUCTION NO. 6

'If you should find from a fair preponderance of the evidence that it was not necessary to install a new Weathertron [140 INDAPP 457] unit at the time the defendant's agents represented to the plaintiff, William B. Dorr, that a new unit was required, when in fact it was only necessary to replace the compressor on said Weathertron, and if you should further find that the defendant knew or should have known this, then this would be a misrepresentation and fraud on the part of the defendant and the plaintiffs would be entitled to recovery on Paragraph II of their complaint for the damages they sustained, if any, as a result of said misrepresentation and fraud on the part of said defendant, General Electric Company.'

The appellants' objection to the giving of this instruction is as follows:

'In open Court and out of the presence of the Jury, the Defendant objects to the Court giving the Plaintiffs' Instruction No. 6 for the reason that this Instruction informs the Jury that if the defendant knew or should have known that it was not necessary to replace the entire unit, but only to replace the compressor, that this would then be a misrepresentation and fraud on the part of the defendant.

'This Instruction is erroneous in that in and to establish fraud and misrepresentation, it is necessary the defendant have guilty knowledge of the falsity of the statements and that it makes it for the purpose of deceiving Plaintiffs and that they are made with the expectation and hope that the Plaintiffs will act upon said misrepresentations.'

In order to avoid any misinterpretation and misunderstanding of the law as it is applied to this case, and cases of a similar nature which will arise in the future, it is the court's obligation to clarify our original opinion in light of appellant's Petition for Rehearing.

The appellant contends that Instruction No. 6, set out above, is erroneous and in direct conflict with appellant's Instruction No. 10, which reads as follows:

'Fraud is not presumed, and to warrant a recovery for fraud or deceit it must be averred and proved. To make a complaint good for general damages resulting from a fraudulent representation of a given fact, it must, in substance, be...