Coney v. Stewart

• Decision Date: 20 March 1978
• Docket Number: No. 77-273,No. 1,77-273,1
• Citation: 562 S.W.2d 619,263 Ark. 148
• Parties: Doug CONEY, Appellant, v. Ray STEWART, Appellee
• Court: Arkansas Supreme Court

Page 619

562 S.W.2d 619

263 Ark. 148

Doug CONEY, Appellant, v.Ray STEWART, Appellee.

No. 77-273.

Supreme Court of Arkansas, Division No. 1.

March 20, 1978.

McArthur & Johnson, Little Rock, for appellant.

House, Holmes & Jewel, Little Rock, for appellee.

HOWARD, Justice.

The question for review is whether the trial court's finding that appellant had breached the implied warranty of proper design and installation of a septic tank system, in a new house sold to appellee, is supported by substantial evidence.

THE FACTS

On July 11, 1973, appellee purchased a new house from appellant, a residential building contractor in the Little Rock area.The house, which is located at Mabelvale, Arkansas, was sold as a package deal, including all plumbing and septic tank system, for a total purchase price of $24,349.00.

Appellee encountered his first problem with the septic tank system in August, 1973, and appellant immediately corrected the problem by replacing a crushed pipe embedded in the soil leading from the house to the septic tank.Appellee's second problem developed in October, 1973, when appellee discovered that waste would flow on the floors of the bathrooms when use was made of the commodes.The overflow of the commodes, as well as water "bubbl(ing) up in the back yard", during heavy rains, continued intermittently from October, 1973, to 1976.Appellant made a futile effort to correct the problems by, inter alia, constructing a "slush pit" across appellee's yard and as a consequence of constructing the "slush pit", appellee was prevented from cutting "grass around it (the slush pit) and stunk real bad."During the nonuse of appellee's bathroom facilities during this period, appellee and his family were required to use either the facilities of neighbors, relatives or public establishments.

As a further consequence of these problems, complaints were registered by appellee's neighbors with the Pulaski County Health Department.The Pulaski County Health Department advised appellee by written communication that his septic tank system was creating a health hazard in the community and that appellee had thirty days to take corrective action, otherwise, legal action would be instituted against appellee.

In an effort to remedy the problem, in order to provide for the personal comfort and convenience of his family and to avoid litigation with the Pulaski County Health Department, appellee consulted a soil engineer who concluded that the soil was not suitable for the system designed and installed by appellant.Pursuant to the engineer's recommendations and advice, appellee installed a jet aeration system ¹ as a replacement of the septic tank system.

On August 17, 1976, appellee instituted an action against appellant for breach of implied warranty praying damages in the sum of $3,425.00.

HOLDING OF THE TRIAL COURT

The trial court held that the evidence established "an apparent defect in design from the time that the septic tank was being installed" and awarded the appellee a judgment in the sum of $3,234.00 for the installation of a replacement system.

CONTENTION OF APPELLANT FOR REVERSAL

The trial court erred in awarding a judgment against appellant inasmuch as appellee failed to present sufficient evidence to establish a breach of the implied warranty of proper construction and sound workmanship.

THE DECISION

Appellant's argument is essentially to the effect that the evidence "to establish a breach of the implied warranty of proper construction and sound workmanship" is not supported by the evidence.But we find from the record that the trial court's holding was to the effect "there was no defect in the material or workmanship, but it seems apparent to the Court there was an apparent defect in design from the time the septic tank was being installed."

After reviewing the record, we are persuaded that the trial court's finding is supported by substantial evidence and, accordingly, the trial court's holding is affirmed.

It is settled law in Arkansas that the rule of caveat emptor is no longer applicable to the sale of new housing by a vendor-builder to the purchaser; and that there is an implied warranty that goes with the sale of new housing by such a vendor-builder that it is constructed in a good workmanlike manner and is fit for human habitation.Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922(1970).Indeed, the implied warranty extends to a septic tank and drain field system where, as here, the system is an integral part of the house; and the breakdown of the system is tied to the design and installation and, moreover, the system failed before a minimum life expectancy had been realized by appellee.

Appellant argues that the septic tank system was installed in good...