Strong v. Commercial Carpet Co., Inc.

• Decision Date: 04 February 1975
• Docket Number: No. 1--973A170,1--973A170
• Citation: 322 N.E.2d 387,163 Ind.App. 145
• Parties: Grace STRONG and Lewis Strong, husband and wife, Appellants (Plaintiffs Below), v. COMMERCIAL CARPET CO., INC., and Kenneth Bullington, Appellees (DefendantsBelow).
• Court: Indiana Appellate Court

Page 387

322 N.E.2d 387

163 Ind.App. 145

Grace STRONG and Lewis Strong, husband and wife, Appellants (Plaintiffs Below), v. COMMERCIAL CARPET CO., INC., and Kenneth Bullington,

Appellees (DefendantsBelow).

No. 1--973A170.

Court of Appeals of Indiana, First District.

Feb. 4, 1975.

Gerald G. Fuchs, Evansville, for appellants.

Robert H. Hahn, George A. Porch, Evansville, for appellees; Bamberger, Foreman, Oswald & Hahn, evansville, of counsel.

LYBROOK, Judge.

Plaintiffs-appellants Lewis and Grace Strong (husband and wife) appeal from a judgment on a jury verdict in favor of defendants-appellees Commercial Carpet Co. and Kenneth Bullington.

Each of Strongs' complaints were in two paragraphs, alleging breach of contract and negligence. At the conclusion of Strongs' rebuttal evidence, the trial court sustained Commercial's motion for judgment on the evidence as to the contractual theory. The negligence question went to the jury, which returned a verdict for defendants.

The central issue raised in this appeal is whether the trial court erred in sustaining appellees' motion for judgment on the evidence.

Appellants owned and operated a beauty salon which was attached by a hallway to their residence in Evansville. A few days prior to October 5, 1969, appellants were contacted by Commercial Carpet Co. about the possibility of purchasing new carpeting for their home. Appellants argeed to discuss the matter with a representative of Commercial, and a meeting was had on October 5, during which the Strongs purchased new carpeting. Installation arrangements were made and on or about December 4, 1969, Kenneth Bullington and at least one other employee of Commercial arrived at the Strong home to install the carpeting. The testimony concerning the subsequent events is conflicting, but that evidence most favorable to appellants (the non-moving party) reveals that the carpeting was installed in the kitchen and living room without incident. However, it then became apparent that there would not be enough carpeting to complete the hallway. At about 5:00 P.M. one workman approached Mrs. Strong, who was working in the beauty shop, and informed her of the carpet shortage. It was agreed that since it would take three days to reorder and receive the additional carpeting, the workmen would return then to finish the job.

Upon their departure, the workmen left an exposed metal tacking strip nailed to the floor in the doorway between the beauty shop and the hallway. These tacking strips were used to hold the carpeting in place. They were metal with one piece nailed to the floor and one piece extending up with cleats. The edge of the carpet was to be placed over the bottom piece and the top piece with cleats hammered over the carpet to hold it in place.

Mrs. Strong testified that the workmen neither informed her of this exposed tacking strip, nor warned her of the dangers of tripping over it.

The following Monday, the additional carpeting for the hall arrived. However, due to the Strongs' dissatisfaction, Commercial was unable to install it. It appears that the Strongs had decided tht they disliked the color of the carpeting that had been installed in the kitchen and living room, and wanted to have that carpeting put in the bedrooms and order new green carpeting for the living room. The evidence of the occurrences of the next several days is sketchy, but on or about January 2, 1970, Mrs. Strong tripped over the tacking strip in the doorway of the beauty salon and fell. She sustained severe back injuries and sought to recover for these injuries and resultant medical expenses.

Commercial's motion for judgment on the evidence as to the contractual theory in pertinent part read:

'For judgment, separately and severally, on Paragraph II of the complaint for the reason that:

1. The evidence is insufficient to establish a breach of contract or implied warranty on the part of the defendant Commercial Carpet Co., Inc., which was the proximate cause of the accident, injuries and damages complained of.

2. The evidence fails to establish a cause of action in contract in favor of the plaintiff against either, or both of the defendants.

3. The evidence is insufficient to establish that any breach of contract caused the accident and damages complained of.

4. The evidence establishes that the plaintiff refused, hindered and prevented performance by the defendants of their obligations under the contract.

5. The evidence fails to establish any contractual relationship between the plaintiff and the defendant Kenneth Bullington.

6. The plaintiff's wife incurred the risk of the accident, injuries and damages complained of.'

In its statement prior to entry of judgment on the evidence as to the contractual claim, the trial court indicated that it was entering judgment for the first three reasons above. These three, in different ways, all state that the evidence was insufficient to establish that the Strongs had a contract action against Commercial.

The Strongs now contend that the granting of said motion was erroneous. They argue that before a trial court can sustain a motion for judgment on the evidence pursuant to Ind.Rules of Procedure, Trial Rule 50, there must either be a total absence of evidence or legitimate inferences in favor of plaintiff on the issue, or the evidence must be without conflict and susceptible of but one inference and that inference in favor of defendant. Appellants maintain that the record is replete with evidence supporting a conclusion that Commercial undertook by contract to install the carpeting; that they left an exposed tacking strip in the hallway which caused Mrs. Strong's fall; that leaving the exposed tacking strip in place constituted a breach of the contract; and that this breach resulting in Mrs. Strong's fall. They therefore submit that it was error to sustain Commercial's motion.

In response, Commercial claims that the record is devoid of evidence which shows that a breach, if any, of the carpet contract naturally resulted in Mrs. Strong's fall and injuries. Commercial asserts that the damages sustained by the Strongs were not natural and proximate consequences of the breach (if any), and as such, cannot be said to have been within the contemplation of the parties as damages in case of breach of the contract. Commercial therefore argues that the Strongs did not have an action in contract, but rather, their action properly lay in tort.

Commercial submits that actions in tort and contract are differentiated by a determination of whether the damages resulted from nonfeasance or misfeasance. Commercial cites as authority Flint and Walling Mfg. Co. v. Beckett (1906), 167 Ind. 491, 79 N.E. 503. In Flint, Beckett owned a barn and contracted with Flint to construct a windmill on it. The windmill was poorly constructed and fell, damaging plaintiff's barn and contents. Beckett sued, alleging both breach of contract and negligence. Flint defended, claiming the action was one in contract and not tort. Beckett recovered on the tort theory, and the Supreme Court commented as follows:

'. . . It is, of course, true that it is not every breach of contract which can be counted on as a tort, and it may also be granted that if the making of a contract does not bring the parties into such a relation tht a common-law obligation exists, no action can be maintained in tort for an omission properly to perform the undertaking. It by no means follows, however, that this common-law obligation may not have its inception in contract. If a defendant may be held liable for the neglect of a duty imposed on him...