Dixon v. Ledbetter, 77-114
| Citation | 561 S.W.2d 294,262 Ark. 758 |
| Decision Date | 13 February 1978 |
| Docket Number | No. 77-114,77-114 |
| Parties | Glen DIXON, Appellant, v. Charles A. LEDBETTER and wife, Appellees. |
| Court | Supreme Court of Arkansas |
Bill F. Doshier, Harrison, for appellant.
Ledbetter & Associates, Ltd. by Thomas D. Ledbetter, Harrison, for appellees.
In 1974 the appellant, a residential contractor, built a $60,000 home in Harrison for the appellees, pursuant to plans and specifications furnished by them. After the Ledbetters had occupied the house for a few months several comparatively minor defects developed. The defects were not corrected to the satisfaction of the Ledbetters, who eventually brought this suit against the contractor for damages. Dixon's appeal from a decree in favor of the Ledbetters brings up for review the chancellor's rulings primarily with respect to two defects.
First, a concrete driveway, not reinforced with steel or wire, was poured upon fill ground varying up to 12 feet in depth. The fill settled and cracked the driveway to such an extent that even Dixon testified that about half of it would have to be replaced. Dixon insists, however, that he did the work in the manner that was customary in the community and that he told the Ledbetters in advance that the fill would settle.
That a contractor uses customary methods is a matter to be considered, but that standard does not necessarily meet the test of ordinary care. AMI Civil 2d, 1204 (1974); Baker v. Pidgeon Thomas Co., 422 F.2d 744 (6th Cir., 1970). Moreover, a contractor must use reasonable judgment in building on fill ground and may be expected to give warning if the soil is inadequate. Rubin v. Coles, 142 Misc. 139, 253 N.Y.S. 808 (1931).
Here the weight of the proof is not clearly contrary to the chancellor's finding that Dixon was at fault. Dixon testified that he told the dirt hauler, Youngblood, that he needed to pack the particular fill more with his tractor, but Youngblood denied having received such instructions. Youngblood also testified that settling could be controlled to some extent by means of a roller, but Dixon conceded that no roller was used. Dixon apparently told the Ledbetters that the fill would settle, but it is clear that he did not warn them of the possibility that the driveway might be so seriously damaged as to require partial replacement. The evidence supports the conclusion that some more explicit warning should have been given if Dixon intended for the Ledbetters to assume the risk of serious settling a matter about which he may fairly have been expected to be better informed than the Ledbetters.
Second, there is proof indicating that two balconies were not properly built, in that the slope was not sufficient to cause rain water to drain away from the house. Dixon's insistence that he merely followed the plans is not tenable. The plans have not been abstracted and would hardly have prohibited the contractor from incorporating sufficient slope in the construction.
The Ledbetters' expert witness, Landis, recommended that the defect be corrected by the installation of a copper pan (apparently simply a flanged sheet of seamless copper) on the plywood floor of each balcony. The sheets could be walked on and would conduct water away from the house. It is not a valid objection that such sheets were not included in the plans, for their purpose is to correct defects caused by faulty construction. Dixon disputes the existence of the defects and has not suggested a preferable remedy.
It is argued that the chancellor improperly relied upon hearsay testimony. Landis, an expert in remodeling and repairing houses, testified that it would cost $400 to repair each balcony. He said that Conward Allen had given him a figure of $250 to make each pan. Upon objection to this testimony as being hearsay, the court ruled:
The court's ruling was right. We have previously held...
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