Rutledge v. Dodenhoff, 19075

• Decision Date: 08 July 1970
• Docket Number: No. 19075,19075
• Citation: 254 S.C. 407,175 S.E.2d 792
• Court: South Carolina Supreme Court
• Parties: Frank William RUTLEDGE, Respondent, v. James E. DODENHOFF, Jr. and Paul B. Costner, Jr., d/b/a D & C Builders, Appellants.

Page 792

175 S.E.2d 792

254 S.C. 407

Frank William RUTLEDGE, Respondent, v. James E. DODENHOFF, Jr. and Paul B. Costner, Jr., d/b/a D &amp C Builders, Appellants.

No. 19075.

Supreme Court of South Carolina.

July 8, 1970.

Younts, Reese & Cofield, Greenville, for appellants.

Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

LEWIS, Justice:

This is an appeal by defendants from a judgment recovered against them, as the builder-vendor of a new house, for damages sustained by plaintiff the purchaser, from overflows from a septic tank installed by defendants as a part of the new construction.

Plaintiff alleged that the overflow from the septic tank was due to either defective design or installation of the sewerage disposal system. The case was tried and the issue of liability submitted to the jury on the legal theory that the defendants, as a builder-vendor of a new house, impliedly warranted the fitness of the building for the purposes and use for which it was intended. The exceptions preserve for review the contentions interposed by defendants at the trial that (1) the evidence conclusively shows that plaintiff's damages resulted from causes for which defendants were not responsible; and that, in any event, (2) the trial judge erred in submitting the case to the jury on the theory that there was an implied warranty of fitness in the sale of the house.

Defendants first contend that the trial judge erred in refusing their timely motion for a directed verdict on the ground that the evidence conclusively shows that the sewerage disposal system in the house was properly designed and installed and that plaintiff's damages resulted from causes for which they were not responsible. In disposing of this question we are required to view the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff.

Defendants, who admittedly held themselves out to the public as experienced and competent builders, sold to plaintiff on February 4, 1967, for the sum of $23,500.00, a new house which had been constructed by them. The sewerage disposal from the house was through a septic tank, there being no municipally operated sewerage system available in the area. After plaintiff and his family had lived in the house for approximately eight months, the septic tank overflowed on five separate occasions, the first time in September 1967 and subsequently in December 1967, February 1968, May 1968, and September 1968. The house was described as a tri-level structure consisting of a basement, first floor, and a second floor, with bathrooms located in the basement and on the top floor level. When the septic tank overflowed, it caused the water and contents to back into the house through the commodes and shower stalls, including those on the top floor level, causing considerable damage to the house and the furniture. Upon the failure of the defendants, after notice, to remedy the situation, this action was instituted to recover the damages sustained. A verdict was rendered in plaintiff's favor in the amount of $2000.00

The septic tank and the field drains from it were installed to the rear of the house, which, due to the fact that the lot sloped to this front, placed them, as described in the testimony, above 'the level of the house.' There was testimony that the underground water level was higher in the community where the house was constructed than in other areas, which was known to defendants but not to the plaintiff. Normally, the best procedure in installing a septic tank is to place it and the necessary field drains below the level of the house, and this is especially true in areas where the underground water level is high. This result could have been obtained in this case by installing the septic tank and drains to the front of the house since the terrain was considerably lower there than at the rear. In fact, it was inferentially conceded by one of the defendants that the proper place to locate the septic tank was to the front of the house because of the slope of the lot from the rear to the front and the high underground water level. He stated that this was not done because the officials of the County Health Department decided that it should be installed to the rear of the house. Although he was aware of the foregoing facts, he made no suggestion to the health authorities that the proposed location of the septic tank be changed.

Plaintiff testified that the field drain lines from the septic tank had a tendency to point uphill rather than down, and that the tank overflowed in both dry and wet weather but 'more frequently in wet weather.'

After a septic tank and field drains are installed, they are covered with dirt and obscured from view. A prospective purchaser of the new house therefore had no feasible way to inspect the sewerage disposal system to determine if it was properly installed. It is undisputed that the system was a necessary and integral part of the house sold by defendants.

We think that the testimony made a jury issue as to whether the septic tank and field drains were properly installed. Defendants were aware that the underground water table was higher in the area in question than in other places; that the land sloped from the septic tank, as installed, toward the house; and that, under the facts known by them, a proper installation required that the septic tank be installed to the...