Campbell v. Booth

• Decision Date: 27 June 1975
• Docket Number: No. 18592,18592
• Citation: 526 S.W.2d 167
• Parties: Waylon E. CAMPBELL, et ux., Appellants, v. Don L. BOOTH et ux., Appellees.
• Court: Texas Court of Appeals

Page 167

526 S.W.2d 167

Waylon E. CAMPBELL, et ux., Appellants, v. Don L. BOOTH et ux., Appellees.

No. 18592.

Court of Civil Appeals of Texas Dallas.

June 27, 1975.

Rehearing Denied Aug. 7, 1975.

John M. Gillis, Gillis, Rogers & Taylor, Dallas, for appellants.

Don C. Templin, Haynes & Boone, Dallas, for appellees.

CLAUDE WILLIAMS, Chief Justice.

Waylon E. Campbell and Margaret J. Campbell brought this action against Don L. Booth and Janet B. Booth for damages, both actual and exemplary, alleged to have resulted from affirmative fraudulent concealment in the sale of real estate. The Booths were the owners of a house located in Dallas, texas, and entered into a contract with the Campbells during the month of August 1973, whereby the Campbells agreed to purchase the house for a stated consideration. In their petition the Campbells alleged that prior to the sale, the Booths had failed to disclose to them that the carpet throughout the house had been permeated with canine urine and that the Booths had actively concealed from the Campbells the extensive deleterious effects of said urine; that said facts were material to the transaction; that the Campbells had relied and acted on the presumption that no such fact existed and that they did not become aware of the malodorous nature and condition of the carpet throughout the house until after they obtained possession. They alleged damages caused by replacement of the carpet throughout the house which caused a depreciation of the value of the premises. Trial was to a jury, and at the close of plaintiff's evidence, defendants moved for and were granted an instructed verdict. Judgment was rendered that plaintiffs take nothing. This appeal involves the sole question of the propriety of the action on the part of the trial court in granting the motion for directed verdict.

Our appellate review of a judgment based upon a directed verdict is governed by well-established rules of law. A directed verdict presents a 'no evidence' point. Shubert v. Fidelity & Casualty Co., 467 S.W.2d 662, 663 (Tex.Civ.App.--Houston (1st Dist.) 1971, writ ref'd n.r.e.). We are required to accept as true the evidence in the record supporting appellants' allegations, both of fraud and damages disregarding all evidence to the contrary. All conflicts and inconsistencies must be resolved in favor of appellants, and we must draw all inferences therefrom most favorable to appellants' alleged cause of action. Constant v. Howe, 436 S.W.2d 115 (Tex.1968); Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1965); Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, 865 (1956); Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Anderson v. Moore, 448 S.W.2d 105 (Tex.1969). If the evidence presented is of such a conclusive character that reasonable minds could not differ as to its effect and only one conclusion may reasonably be drawn from it, only then does the question become one of law, thereby justifying the granting of an instructed verdict. Clevenger v. Liberty Mutual Insurance Co., 396 S.W.2d 174, 177 (Tex.Civ.App.--Dallas 1965, writ ref'd n.r.e.). The appellate court does not pass upon the credibility of witnesses but is obligated to accept as true all evidence which, when liberally construed in favor of the adverse party, tends to support such adverse party's contention and disregards all contradictory evidence favorable to the movant. When so viewed, if the evidence amounts to more than a mere suspicion or speculation that the fact propositions asserted by the opponent to the motion might be true or false, an issue of fact is raised and should be submitted to the jury. Humphreys v. Haragan, 476 S.W.2d 880, 882 (Tex.Civ.App.--Amarillo 1972, no writ); 3 McDonald, Texas Civil Practice § 11.28.2, at 235--36 (1970).

In determining issues of fraud courts allow a wide latitude, and the evidence thereon may embrace all the facts and circumstances which go to make up the transaction, disclose its true character, explain the acts of the parties, or throw light on their objects and intentions. The presence or absence of a certain state of mind may be proved by circumstances. Fraud is deducible from artifice and concealment as well as from affirmative conduct of a character to deceive. Blanton v. Sherman Compress Co., 256 S.W.2d 884 (Tex.Civ.App.--Dallas 1953, no writ); Ten-Cate v. First National Bank 52 S.W.2d 323, 326 (Tex.Civ.App.--Fort Worth 1932, no writ).

We have examined the record in the light of these rules. Mr. and Mrs. Booth, the owners of the property in question, placed the property in the hands of a real estate broker to negotiate a sale. Mr. and Mrs. Campbell, on one or more occasions, inspected the house . During these inspection tours, made in company with the real estate agent, the Campbells did not observe anything out of the ordinary nor did they smell any offensive odors. The Campbells made an offer to purchase the house, and a contract for such sale was signed on August 31, 1973. A few days after the signing of the contract, Mr. and Mrs. Campbell and Mr. Campbell's mother again toured the house and did not detect any offensive odors. The sale was consummated about September 25, 1973, and the Booths vacated the premises about October 1, 1973. At the time the Booths left the house, it was locked, and there is no evidence that anyone entered the premises until about one week later on October 7, 1973, when the Campbells returned to take possession. On that date, when the Campbells opened the house, they immediately detected the offensive odor for the first time. This odor was determined to have been caused by canine urine which permeated most of the carpets in the house. During the next two or three weeks, the Campbells employed a rug cleaning company, using the system known as 'steamatic,' to attempt to clean and treat the carpets. During that same time they also had an experienced employee of the American Rug and Carpet Company and a Mr. Carr, the owner of a carpet supply and cleaning company, to inspect the premises generally. Thereafter, the carpets were taken up and removed. Samples of the damaged carpet were made and introduced into evidence. After replacing the damaged carpet with new carpet, the Campbells moved into the house. Mr. Campbell testified that he would not have entered into the contract for the purchase of the house had he been aware of the condition of the rugs which was discovered following the sale.

Mr. Campbell said that neither he nor his wife had any reason to suspect that there was anything wrong with the carpet prior to the closing of the contract of sale. When he had his wife entered the house, about two weeks later, they were confronted with the smell which they described as 'horrible.' He said: 'It just smelled horrible. It wasn't just a little smell like the house had been closed up a week and without substantial ventilation, it just smelled horrible.' At the time the Campbells inspected the house, prior to the purchase of same, they knew that the Booths had several dogs, two Dobermans, and a smaller dog as well as several cats. At that time they did not know that the dogs were allowed in the house but did see the cats in a closet. Mr. Campbell said that on one of his inspection trips through the house that he noticed at least one candle which was burning and that his wife and the agent who was showing the house also saw it. Concerning deodorizers, Mr. Campbell testified that he observed 'airwick around all over the place,' which he described as 'little pull-up deals' and which would act as a deodorizer. He said that at least two of these were left in the house, one in the kitchen and one in the bathroom and that they had been pulled up but they did not get rid of the odor altogether. He said that: 'I would have to say over a period of time they do not, but if you put enough in there apparently you do. The thing that gave a lot of odor was a small jar that we discovered afterwards also, in the kitchen, just a little bitty jar about like this with a powerful deodorizer.' In this connection he testified, in detail:

Q. And you said you found a deodorizer that seemed to work on these smells?

A. Uh, huh.

Q. Did they give you permanent relief? Did it remove them or cover them up?

A. It covered them up.

Q. Was it effective in covering them up?

A. It appeared to be very effective.

Q. Did you try it after you found it out there?

A. I sure did.

Q. And how long would it give you relief in a room after you applied it?

A. I would say several hours.

Q. It lasts for several hours and when it would diminish or evaporate or whatever it does, would the smell be noticeably less or--

A. Back to the same.

Mr. Campbell further testified that after the rugs were replaced he had occasion to examined the bottom of the old carpets, and there he found stains on almost every area in every room. These stains appeared to him to be animal urine, and they had a very stringent odor.

Mr. E. H. Durham, president of American Rug & Carpet Company and an expert in cleaning and repairing urgs, examined the samples of carpet which had been taken from the premises. He said that based upon his examination the rugs were definitely stained with urine either from a cat or a dog and that the stains could not be effectively cleaned in place nor could they be effectively removed, cleaned and replaced because one could not kill the odor by cleaning . He testified that this odor could not be removed but it could be concealed to a degree by deodorizing it. He said that the deodorant would only be temporary and that the smell would return after a time . When asked about the deodorizer that the Campbells found on the premises, Mr. Durham said that this would possibly kill the odor for a length of time but that it would reappear. The deodorizer smell itself would disappear completely. He said that the deodorizer would completely neutralize a great deal of the smell but it would not ever...