McCormick Piano & Organ Co., Inc. v. Geiger

• Decision Date: 26 November 1980
• Docket Number: No. 3-278A34,3-278A34
• Citation: 412 N.E.2d 842
• Parties: McCORMICK PIANO & ORGAN CO., INC., Appellant (Defendant Below), v. Dennis GEIGER and Janice Geiger, Appellees (Plaintiffs Below), Jeane Bosselmann, Appellee (Defendant Below), Glen McCormick, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 842

412 N.E.2d 842

McCORMICK PIANO & ORGAN CO., INC., Appellant (Defendant Below), v. Dennis GEIGER and Janice Geiger, Appellees (Plaintiffs Below) Jeane Bosselmann, Appellee (Defendant Below) Glen McCormick, Appellee (Defendant Below).

No. 3-278A34.

Court of Appeals of Indiana, Third District.

Nov. 26, 1980.

W. Michael Horton, Charles J. Weinraub, Higgins, Swift & Weinraub, Fort Wayne, for appellant.

Edward E. Beck, Fort Wayne, for appellees Dennis Geiger and Janice Geiger.

HOFFMAN, Judge.

On April 1, 1976 plaintiffs-appellees Dennis and Janice Geiger brought an action against Jeane Bosselmann, Glen McCormick and McCormick Piano & Organ Co., Inc. charging that said defendants were liable for damages suffered by plaintiffs on the grounds of fraudulent misrepresentations, deceptive advertising, false imprisonment, assault and battery and slander. Subsequently, Glen McCormick and McCormick Piano filed counterclaims alleging that plaintiffs were guilty of libel. On January 18, 1977 the trial court granted McCormick Piano's motion for summary judgment on the false imprisonment count but denied it as to all other counts. From August 18-19, 1977 the cause was tried before a six-man jury. After the plaintiffs had presented their case-in-chief, defendants moved for judgment on the evidence. The trial court granted the motion on the slander count and also dismissed Glen McCormick as a defendant in the action. The jury returned general verdicts against Bosselmann and McCormick Piano in the sums of $4,000 and $10,000 respectively. It also found against McCormick and McCormick Piano on their counterclaims. Only McCormick Piano appeals from the judgment entered.

The issues presented for review include:

(1) Was there sufficient evidence that defendant violated IC 1971, 24-5-0.5-1 et seq. (Burns Code Ed.)?

(2) Did plaintiffs comply with the notice requirements of IC 1971, 24-5-0.5-5?

(3) Was Bosselmann an agent of defendant?

(4) Was there sufficient evidence that defendant violated IC 1971, 35-17-5-10 (Burns Code Ed.)?

(5) Is IC 1971, 35-17-5-12(7) constitutional?

(6) Did plaintiffs suffer any damages as a result of defendant's conduct?

(7) Did defendant breach any contract with plaintiffs? and

(8) Did the trial court err in denying defendant's motions for summary judgment on the slander and breach of contract counts?

Viewing the evidence in a light most favorable to the judgment discloses that on February 16, 1976 defendant circulated an advertisement in the Fort Wayne News-Sentinel announcing a special sale price of $699 on Kimball Whitney Spinet pianos. Along with other information about the sale the advertisement contained a drawing of a piano (hereinafter referred to as the composite piano) which was spread over half the layout. Although a picture of a Kimball Whitney Spinet piano was available for the advertisement, the drawing actually used was a composite of several more expensive models and bore a striking resemblance to a Crest piano which sold for $1,500. In fact McCormick, the company vice-president, acknowledged that the average person would not detect the six discrepancies between the composite and the Crest model.

On February 17 plaintiffs appeared at the Glenbrook North showroom and spoke with Bosselmann who was one of defendant's salesmen. They expressed an interest in purchasing a piano and remarked that the advertisement in question had caught their attention because the drawing matched the style of their furniture. During this conversation plaintiffs noticed a piano on display which looked similar to the composite piano. When asked whether this was the piano on sale Bosselmann replied that it was not, explaining that the display piano was a Crest. But Bosselmann did offer to call McCormick in the morning to find out if the composite piano could be obtained.

On February 18 Bosselmann notified plaintiffs she was holding a piano for them at the company warehouse and arrangements were made to meet there in the evening. When plaintiffs saw the piano Bosselmann had selected, they stated that it was not the same as the one depicted in the drawing. Again they noted the resemblance between the Crest and the composite piano. Having failed to find the composite piano at the warehouse, plaintiffs were assured by Bosselmann that McCormick would definitely order one at the sale price.

On February 19 Bosselmann advised plaintiffs that she was unable to order the composite piano from the factory. Mrs. Geiger returned to the store in order to pursue the matter further. When queried by Mrs. Geiger as to whether the composite piano had ever been on sale, Bosselmann retorted that it was and that she had sold three or four of them the day before. Furthermore, she admitted that the Crest and the composite were the same piano. Mrs. Geiger then asked Bosselmann for the names of customers who had purchased composite pianos.

At this point Bosselmann became hysterical and exclaimed that she would not sell a piano to Mrs. Geiger if she were the last person on earth and that she was sick of looking at Mrs. Geiger's face. Due to her nervous condition Bosselmann was unable to use the telephone so she decided to leave the store unattended. In doing so she grabbed Mrs. Geiger by the arm and shook her momentarily. Subsequent efforts at rectifying matters between all parties concerned were unsuccessful and this action ensued.

Initially defendant insists there was insufficient evidence to establish that it violated IC 1971, 24-5-0.5-1 et seq., the Indiana Deceptive Consumer Sales Act. The act prohibits merchants from engaging in certain conduct which is considered per se as deceptive. IC 1971, 24-5-0.5-3(a) sets forth a series of proscribed practices and provides in relevant part as follows:

"The act of a supplier in representing, orally or in writing, as to the subject of a consumer transaction furnished by such supplier, any of the following is a deceptive act:

(2) that such subject of a consumer transaction is of a particular standard, quality, grade, style, or model, if it is not and, if the supplier knows or should reasonably know that it is not."

Irrespective of the foregoing an act will not be deemed deceptive if the supplier shows by a preponderance of the evidence that the act resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid the error. IC 1971, 24-5-0.5-3(c).

Defendant levels an array of arguments in support of its insufficiency claim, the first of which is that no "consumer transaction" occurred. As used herein the term "consumer transaction" refers to

"... a sale, lease, assignment, award by chance, or other disposition of an item of goods, a service, or an intangible, except securities and policies or contracts of insurance issued by corporations authorized to transact an insurance business under the laws of the state of Indiana, with or without an extension of credit, to an individual for purposes that are primarily personal, family or household, or a solicitation to supply any of these things." (Emphasis added)

IC 1971, 24-5-0.5-2.

Focusing on the underlined portion of the statute, defendant suggests that a newspaper advertisement is not an offer for sale but only a solicitation for offers and hence the act is inapposite citing Chicago Joint Bd. Amal. Cloth. Wkrs. v. Chicago Tribune Co. (N.D.Ill.1969) 307 F.Supp. 422. This position is not well taken. Chicago Tribune merely held that under general contract theory there is a presumption that general advertising aimed at the public is not an offer to enter a contract. But the fact that an advertisement is not an offer for sale for purposes of contract law is not germane under IC 1971, 24-5-0.5-1 et seq. because the act only requires that the advertisement be a solicitation to supply.

In Weaver v. J. C. Penney Co., Inc. (1977), 53 Ohio App.2d 165, 372 N.E.2d 633, a consumer brought an action to recover damages for an alleged deceptive act by a retailer which refused to issue a raincheck to the consumer or to place an order for the advertised goods at the advertised price after the supply was exhausted. There the deceptive sales statute under consideration defined consumer transaction in terms nearly identical to our own. In the course of holding that the newspaper advertisement in question constituted a deceptive act, the court opined:

"First, it would appear that despite the fact that no sale ever took place, a 'consumer transaction' within the statutory scheme occurred. Under R.D. 1345.01(A), a ' "consumer transaction" means a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, franchise, or an intangible ... to an individual for purposes that are primarily personal, family, or household, or solicitation to supply any of these things.' (Original emphasis)

"From this language, it is apparent that under the Consumer Sales Practices Act it is not necessary that a sale actually take place before a supplier may be held liable to a consumer for deceptive acts. A solicitation to sell goods or services intended primarily for personal, family, or household use, may be sufficient to give rise to liability even in the absence of an actual sale if a deceptive act is committed in connection with that solicitation.

"In this case, it is clear that appellee solicited the sale of the advertised waffle bakers. Obviously, those items are intended for personal, family, or household use. Accordingly, we conclude that the solicitation constituted a 'consumer transaction' within the meaning of the Act."

372 N.E.2d at 635-636.

This statement of the law seems particularly appropriate here and is therefore expressly adopted. IC 1971, 24-5-0.5-3(b) also lends support for the view espoused in Weaver. It provides in part that "(a)ny representations ... in advertising ... which would constitute a deceptive act under section 3(a) (subsection (a) of this section) shall be...