Wawak v. Stewart

John A. Fogleman, Justice, dissenting in part, concurring in part. In its approach to adoption of the modern rule, the majority has overlooked one important step in establishing a liability for breach of an implied warranty. The first step toward the application of the rule adopted is the necessity for evidence establishing a breach. The burden is on one asserting such a breach to prove it. Hydrotex Industries v. Sharp, 212 Ark. 886 , 208 S. W. 2d 183 ; Highsmith Brothers v. Hammonds, 99, Ark. 400, 138 S. W. 635 ; American Standard Jewelry Co. v. R. J. Hill & Son, 90 Ark. 78 , 117 S. W. 781 ; Elmore v. Booth, 83 Ark. 47 , 102 S. W. 393 .

The rules regarding this burden and its application to the imposition of implied warranties to real estate transactions involving the sale of dwelling houses are clearly recognized in cases relied upon by the majority. In Bethlahmy v. Bechtel, 91 Idaho 55 , 415 P. 2d 698 (1966), that court said:

“The implied warranty of fitness does not impose upon the builder an obligation to deliver a perfect house. No house is built without defects, and defects susceptible of remedy ordinarily would not warrant rescission. But major defects which render the house unfit for habitation, and which are not readily remediable, entitle the buyer to rescission and restitution. The builder-vendor’s legitimate interests are protected by the rule which casts the burden upon the purchaser to establish the facts which give rise to the implied warranty of fitness, and its breach. See Schipper v. Levitt & Sons, Inc., supra.”

In Bechtel the evidence was found sufficient to present an issue as to breach. The house in question was built over what had been an open irrigation ditch. The builder laid a water conduit in a trench dug along the course of the ditch and covered the ditch with earth. The conduit consisted of 10-inch drain tile in three-foot sections butted together without any water seal in the joints. The house was located so that this conduit was under the concrete floor of an attached garage, seven to nine feet north of the north wall of the house and two to three feet above the floor level of adjacent basement rooms. After the irrigation season opened, water naturally seeped in around the edges of the basement rooms and spread over the tiled floors. The soil settled away from the garage floor from two to twelve inches and was wet. A crack developed in the garage floor. It was the builder’s opinion that the water came from the tiled ditch under the garage. Efforts were made by the builder to remedy the situation by re-routing the ditch and digging gravel-filled trenches. A hydrologist testified that, in his opinion, the water originally came from the covered tile and thereafter from a “perched” water table established by irrigation water accumulating above a hardpan. He also stated that the concrete in the basement walls and floor could have been made waterproof by proper mixture and care in construction. The damage shown was great enough that some rooms in the house had to be vacated and bricks were placed under furniture to prevent water damage thereto. Eventually the buyers moved out of the house because of the continued water seepage. The testimony of the hydrologist and other witnesses indicated that the condition would recur every irrigation season.

In Schipper v. Levitt & Sons, Inc., 44 N. J. 70, 207 A. 2d 314 (1965), cited by the majority and in the Bechtel case, the court restated its position that it was necessary that there be sufficient evidence to prove negligent or defective construction. The court called attention to the fact that a former case had been affirmed because of the want of evidentiary support for a fact-finding of negligent or defective construction. On this subject that court said:

“Levitt contends that imposition of warranty or strict liability principles on developers would make them ‘virtual insurers of the safety of all who thereafter come upon the premises.’ That is not at all so, for the injured party would clearly have the burden of establishing that the house was defective when constructed and sold and that the defect proximately caused the injury. In determining whether the house was defective, the test admittedly would be reasonableness rather than perfection. As was pointed out in Courtois v. General Motors Corp., 37 N. J. 525, 182 A. 2d 545 (1962), the comparable warranty of merchantability in the sale of goods means only that the article is reasonably fit for the purpose for which it is sold and does not imply ‘absolute perfection.’ 37 N. J., at p. 543, 182 A. 2d 545 . See Jakubowski v. Minnesota Mining and Manufacturing, 42 N. J. 177, 185, 199 A. 2d 826 (1964). And as Professor Noel has indicated, though the imposition of warranty or strict liability principles to a case of defective design, as alleged against Levitt here, would render unnecessary any allegation of negligence as such, it would not remove the plaintiffs’ burden of establishing that the design was ‘unreasonably dangerous’ and proximately caused the injury. Noel, supra, 71 Yale L. J., at pp. 877-878; see also Prosser, ‘The Assault Upon the Citadel (Strict Liability to the Consumer),’ 69 Yale L. J. 1099, 1114 (I960).

* * * We note, however, as indicated earlier in this opinion, that even under implied warranty or strict liability principles, the plaintiffs’ burden still remains of establishing to the jury’s satisfaction from all the circumstances that the design was unreasonably dangerous and proximately caused the injury. See Noel, supra, 71 Yale L. J., at pp. 877-878; see also Prosser, supra, 69 Yale L. J., at p. 1114.”

There the testimony showed that the builder had deliberately ignored cautions of the manufacturer relating to the necessity for controls on a hot water heater so that the water at the taps in the house would not be excessively hot. There was expert testimony by an engineer who had been employed by the builder and who was responsible for the design of hot water systems in houses built by this builder. He recognized that the temperature of the water from the hot water tap in the bathroom sink would be excessively high for domestic use and that the manufacturer had recommended control by a mixing valve outside the boiler.

In the other cases cited by the majority, there was direct evidence of negligent or defective construction. It is the contention of the appellant that appellee Stewy art has failed to meet his burden of proof bv an affirmative showing that appellant breached this implied warranty and that the house was not constructed in a good workmanlike manner. He argues that in effect the ruling of the lower court is that, without any proof or evidence, the house was not constructed in a good workmanlike manner and, without any proof whatever as to the cause of the problem, appellees should recover simply because they bought a new house and subsequently a water situation developed. Because T agree with appellant and both the trial court and this court seem to have ignored the factual situation. I deem it aupropriate to state what the record reveals as undisputed evidence.

Appellant employed an experienced plumbing and heating contractor to design, lay out and install the heating and air conditioning system. This contractor testified about the installation and described the steps in detail, stating that the work was done in compliance with accepted standards, The house was completed almost exactly one year before its sale to Stewart, The completion date enabled appellant to show the house in the Little Rock-North Little Rock Parade of Homes in September 1963. Prom this time on, appellant operated the heating and air conditioning system as a matter of preventive maintenance and experienced none of the difficulties about which the Stewarts later complained. The house has been occupied by the Stewarts from the time of their purchase on August 1, 1964. In March or April 1965, water and fill materials first seeped through the ducts and floor registers of the heating and air conditioning system into various rooms of the house. It was stipulated that appellant had no knowledge or notice of any defects until report was made by Stewart. The construction of “French drains” by Wawak along the front and one side of the house did not correct the situation. There is still a water problem every time it rains. The Stewarts admitted that they had been unable to ascertain the cause of the- difficulty. Appellant testified that he had no idea what was causing the trouble. No one has determined the source. Plummer testified that no one knew how the water gets into the system, but that accumulated water will work through concrete. Wawak learned that there were houses in the Lakewood area in which the same problem had been remedied by the installation of a submergible pump of the type he offered to install in the Stewart house. Plummer had corrected a similar situation in a house on Waterside Drive by the same means. Mr. Gordon, an engineer employed by Stewart, did not know the source of the water problem, but assured Stewart that the problem could be solved by putting “French drains” on the other two sides of his house. Stewart had done some digging around the sides of the house to plant shrubbery and flowers. He also dug two large holes within 20 feet of the house in which to plant pecan trees.

This evidence simply does not show the breach of any implied warranty. It seems significant to me that the Stewarts do not undertake to answer the argument of appellant in this regard in any way. In considering the question of evidence appellee Plummer appropriately argues that the period during which the system had operated satisfactorily was long enough that normal usage would bring any problems in construction to light. He calls our attention to the fact that the author of the article in the Vanderbilt Law Review, cited in the majority opinion, suggested a model act as one of the remedies for problems arising from the adoption of the implied warranty doctrine. He recommended a one-year statute of limitations and commented:

“The statute of limitations in section 5 is short, only one year. The act is primarily designed to protect home buyers from structural defects and improper workmanship in newly constructed homes. One year represents a full seasonal cycle and should bring out all defects in existence at the time of the deed, or in case of an installment purchase, at the time the vendee took possession. Defects which manifest themselves later are mueh more likely due to ordinary wear and tear or the elements, and the one year limitation is designed to prevent the jury’s speculating on this and arriving at unreasonable results.” (Emphasis mine.)

I do not believe that the court intends to apply res ipsa loquitur to such cases, but I fear that this is the effect of the action taken. The doctrine has no application to an action for breach of implied warranty. That is an action on contract. Kapp v. Bob Sullivan Chevrolet Co., 232 Ark. 266 , 335 S. W. 2d 819 . We have recognized that even in a negligence action the doctrine does not apply unless there is first proof of the elements necessary to bring it into play, that the inference arising from the rule does not supply the foundation facts and that its application to a particular set of facts cannot be based upon speculation. Ford Motor Co. v. Fish, 232 Ark. 270 , 335 S. W. 2d 713 . It was there recognized that it must be shown that the causé of the injury is an agency or instrumentality within the defendant’s exclusive control and that the cause is not due to any voluntary action or contribution on the part of the plaintiff. These elements of proof are lacking here. In the Fish case, we relied on the logic of a'quotation from Haas v. Buick Motor Division, 20 Ill. App. 2d 448 , 156 N. E. 2d 263, 266 (1959), as follows:

“The mere fact that an occurrence resulting in damage to property has happened does not authorize any presumption or inference that the defendant was at fault. * * * (Citations omitted.) The mere fact that a fire evidently occurred here, resulting in damage to the property, does not authorize any presumption or inference that the defendant was responsible therefor, — the burden was on the plaintiff to prove, among other things, that there was some material defect in materials or workmanship. * * * This is not a case for the application of some doctrine analogous to that of res ipsa loquitur. ’ ’

An attempt to apply the res ipsa loquitur doctrine to an action for breach of implied warranty was rejected in Ford Motor Co. v. Tritt, 244 Ark. 883 , 430 S. W. 2d 778 . There we said that 16,000-mile use of an automobile wheel from December 1962 to March 1964, even without any evidence or use which might affect the condition of the wheel, made it almost imperative that expert testimony be used to show that a defect in the wheel was a manufacturing defect.

It is clear to me that the Stewarts failed to meet their burden of proof and that the judgment should be reversed as to them. To say the least the majority has chosen a rickety vehicle upon which to transport a major industry into a new legal territory, the topography and boundaries of which have not even been explored, much less charted.

It is particularly important that the doctrine of stare decisis control in commercial cases where contractual and property rights have grown up and business practices developed in reliance thereon. Stability and uniformity of the law in these fields is more important than technical correctness, because day-to-day contracting and dealing must be conducted upon the assumption that yesterday’s precedent will govern tomorrow’s disputes.

I agree with my brother Byrd that such a step as this was more appropriately one for legislative action.

I take it to be conceded that the rule of caveat emptor heretofore applied in this field is one of common law. I cannot refrain from repeating the observation of the Chief Justice in his dissenting opinion in Parish v. Pitts, 244 Ark. 1239, 1255 , 429 S. W. 2d 45 , that the very first section appearing in our current digest of statutes provides that the common law of England of a general nature and not inconsistent with the constitution and laws of this nation, or this state, shall be the rule of decision in this state unless altered or repealed by the General Assembly of this state. Ark. Stat. Ann. § 1-101 (Repl. 1956). Nor can I abstain from repeating an interrogatory propounded in my dissenting opinion in that case, i. e., “If Ark. Stat. Ann. § 1-101 (Repl. 1956) does not mean that this law can be altered or repealed by the General Assembly, only, then, I ask, what does it mean?” I have heard no satisfactory answer.

Merely to label an argument timeworn and threadbare does not make it so. Yet, being threadbare means only that the nap is worn, not that the fabric is pierced or the warp or woof weakened. To be timeworn is not necessarily to be dilapidated. The wisdom acquired from experience of the ages is also ancient. I do not deem it the function of the judiciary to disregard such a statute merely because we think it is not abreast of the times or, in the modern lingo, not relevant. This is a peculiar function of the legislative branch.

Some of the courts which have adopted the “enlightened” approach to this problem have not had to hurdle the obstacle posed by § 1-101. For example, the Washington statute makes the common law the rule of decision so far as it is not incompatible with the institutions and condition of society in the state. In New Jersey, the 1948 constitution now in effect only provides that all law then in force remain in force until superseded, altered or repealed by the constitution or otherwise. New Jersey Constitution, Art. 11 § 1 Par. 3. This provision superseded an 1844 constitutional provision as to common law similar to our statute. Clearly, the common laAV rules could be superseded by judicial action in New Jersey.

Courts of other states simply by-pass the barrier, without mentioning it. Still others go traipsing off after decisions in states not faced with this obstacle, without noticing their own limitations. See, e. g., Bethlahmy v. Bechtel, 91 Idaho 55 , 415 P. 2d 698 (1966), relying, at least in part, upon Schipper v. Levitt & Sons, Inc., 44 N. J. 70, 207 A. 2d 314 (1965).

I humbly submit that no rule of English common law was altered in MacPherson v. Buick Motor Co., 217 N. Y. 382 , 111 N. E. 1050 , Ann. Cas. 1916C 440, L. R. A. 1916F 696 (1916). As a matter of fact, Mr. Justice Cardozo reviews the English cases and finds some support for his result. He also found support in earlier cases in New York.

I fully recognize the necessity for growth and development of the law to fit the needs of our society in the present generation without rigid adherence to principles satisfactory under conditions existing in a past generation. I do not recognize the power of the courts to invade the province of the legislative department in order to “update” the law.

To illustrate the necessity for legislative action to engraft this new doctrine upon our law, I point out that numerous sections of our commercial code are devoted to defining and circumscribing implied warranties in personal property transactions and in stating and limiting remedies for breaches. Each of these required a separate legislative decision at some point in the process of drafting and adoption. 1

The alertness of our General Assembly to desirability for modernization of our law is aptly demonstrated by its adoption of the UGC long before it was adopted by most of our states. While the decision here necessitates legislative action to undo or limit the action here taken, I deplore the willingness of the court to hand a virtual mandate to the General Assembly to act in a field in which it has clearly indicated that it was not ready to legislate. While I agree that the law should require some type of warranty in situations like that treated by the majority, the investigative powers of the legislature are conducive to a thorough examination of all facets of the problem and are peculiarly suited to a clear definition of the extent and application of such a warranty. We can only meet the multiple questions which will now arise one by one on a case by case basis. The legislative branch can anticipate most of them.

I concur in the affirmance of the judgment in favor of: Plummer.

Harris, C. J., joins in this opinion. For example, see the following sections in Arkansas Statutes Annotated, Title 85: definitions, 1-201, 2-103, 2-106, 2-312, 2-314 & 315; rules bearing on rights and remedies, 2-210, 2-301, 2-302, 2-317 & 318, 2-510, 2-515, 2-607 & 608, 2-703, 2-706, 2-711 — 715, 2-717 — 721, 2-723, 2-725, 9-113, 9-206, 9-318; exclusion or modification, 2-316 ( Add. 1961 ).