## Facts

- A building owner leased its roof to an outdoor advertising company for installation and maintenance of a large rooftop sign.
- The sign and its attachments caused substantial physical damage to the roof and related parts of the building.
- The owner sued for damage to the building; the case was tried to the court without a jury.
- At trial, the owner introduced evidence that restoration would cost about $20,000–$25,000 and that it had purchased the building for $65,000 in 1952.
- The owner did not repair the building and instead demolished it.
- The trial court entered judgment for the owner and awarded $8,500 in damages.
- The advertising company moved for a new trial, arguing (i) a mismatch between the pleaded theory and the proof and (ii) an improper and unsupported damages measure; the motion was denied.

## Issues

1. Whether judgment was barred by a fatal variance or failure of proof where the complaint was characterized as contractual but the evidence focused on conduct causing physical injury to the building.
2. Whether the damages award lacked sufficient evidentiary support because the owner did not make repairs and did not present before-and-after market value evidence.

## Decision

- The Indiana Court of Appeals affirmed the judgment and the $8,500 damages award.
- The court held there was no reversible variance or failure of proof because the evidence supported the general scope of the pleaded claim and the defendant was not prejudiced or misled.
- The court held the damages evidence was sufficient; estimated repair costs could be considered even though no repairs were made and direct market-value proof was not introduced.
- The court deferred to the trial court as fact-finder and found the award non-excessive in light of the evidence (including repair estimates far exceeding $8,500).

## Legal Principles

- Under Indiana variance law, a mismatch between the form of allegations and the proof is not reversible unless the proof fails to support the claim’s general scope and meaning or the opposing party is misled to its prejudice.
- For injury to buildings/real property, diminution in value is a common measure, but reasonable repair-cost estimates are admissible as evidence to estimate the loss and may support an award.
- A property owner need not actually perform repairs as a condition of recovering damages supported by reasonable repair-cost evidence.
- In a bench trial, appellate review of the damage amount is deferential; an award supported by record evidence and not excessive will be upheld.

## Conclusion

The court upheld liability and an $8,500 award for rooftop sign damage, ruling that the plaintiff’s proof matched the claim in substance despite characterization disputes and that reasonable repair-cost estimates could support compensatory damages even when the property was not repaired and market-value figures were not presented.


General Outdoor Advert. Co. v. LaSalle Realty Corp., 141 Ind. App. 247, 218 N.E.2d 141 (Ind. Ct. App. 1966)