Fowler v. Benton

• Decision Date: 05 November 1962
• Docket Number: No. 25,25
• Citation: 185 A.2d 344,229 Md. 571
• Court: Maryland Court of Appeals
• Parties: Kenneth Leo FOWLER et ux. v. C. P. BENTON, Thomas F. Halley and M. Leo Storch.

Page 571

229 Md. 571

185 A.2d 344

Kenneth Leo FOWLER et ux. v. C. P. BENTON, Thomas F. Halley and M. Leo Storch.

No. 25.

Court of Appeals of Maryland.

Nov. 5, 1962.

Flora D. Fowler, in pro. per. (Kenneth Leo Fowler, on the brief), for appellants.

Francis X. Jahn, Lanham (Cary M. Euwer and Mitchell, Clagett & Euwer, Upper Marlboro, on the brief), for M. Leo Storch.

Carlyle J. Lancaster, Hysttsville, and Henry E. Weil (Welsh & Lancaster and Nylen, Gilmore & Simpson, Hyattsville, on the brief), for C. P. Benton and Thomas F. Halley.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.

PRESCOTT, Judge.

After the trial judge, in the Circuit Court for Prince George's County, directed verdicts in favor of the defendants, a real estate developer, a builder and a real estate broker, as to the third county of their declaration which alleged fraud and deceit, the plaintiffs, purchasers of a house and lot, appealed.

The only questions presented for decision are rulings on the admissibility of evidence, and the propriety of granting the motions for directed verdicts.

The appellee Storch had developed a subdivision known as Seabrook Acres, and during October of 1955 he sold certain lots therein to the appellee Benton. Thereafter, Benton built a house and constructed a septic tank system on one of these, which said lot and the improvements thereon were purchased by the plaintiffs from Benton in February of 1957. The permit for the septic tank system obtained by Benton called for a 500 gallon tank, the system to serve a five-room one-bath dwelling with three residents. The contract between the plaintiffs and Benton called for certain alterations to be made by Benton on the second floor, which, when completed, made the house consist of five bedrooms, two baths, living room, dining room and kitchen. The plaintiffs, at the time of the execution of the contract, had nine children, and they offered evidence to the effect that Benton knew of this number before he signed the contract, a fact denied by him. Benton conceded that the sewage disposal system was constructed according to the original permit issued to him, and that he had neither applied for, nor obtained, a remodeling permit.

The contract of sale was procured for Benton by the appellee Halley, acting through his salesman, one Frank Garber. There was testimony to the effect that the plaintiffs, realizing they had a large family, specifically talked with Benton and Garber concerning the sanitary system. Upon being questioned Benton and Garber made almost identical statements. When asked if plaintiffs 'could trust--if [they] could rely upon the system which had been installed' in their prospective new home, Mrs. Fowler testified that Benton (and later Garber in practically identical terms) said that 'there wasn't any reason in the world why [the plaintiffs] couldn't feel that it was adequate because it had been put in according to Health Department regulations and that it had been approved by the County Health Department.' It is not denied that the system was constructed according to the permit issued to Benton and it was approved by the Health Department apparently before the additional rooms were added by alterations. Mrs. Fowler testified that the plaintiffs would not have purchased the dwelling had it not been for the representations made to them by Benton and Garber that the sanitary system was adequate.

Soon after occupancy by plaintiffs, difficulty developed with the septic tank system that Benton had installed. The effluent therefrom began seeping out of the ground. Upon complaint by plaintiffs, Benton had his plumber install an overlead pipe, which prevented the 'wash water' from going into the drain field and emptied it close to an open ditch by the roadway. Considerable additional difficulty was experienced by the plaintiffs. The Washington Suburban Sanitary Commission made a sewer line available some eight or nine months after the plaintiffs had moved in, and the plaintiffs were directed to connect therewith.

Rulings on the admissibility of evidence.

We will first deal with these rulings as they materially affect the question as to whether the motions for directed verdicts should have been granted. A certain Elbert W. Tall was offered by the plaintiffs for the purported purpose of showing a general non-adaptability of the soil in Seabrook Acres for septic tank use, a fact that the plaintiffs' claim 'should have been in the knowledge' of Benton and Halley. The witness stated he had purchased a lot in the subdivision in 1953, and 'upon moving in [had] heard various comments about septic tank operations in the area.' After objection, a long colloquy between the court and counsel followed at the bench. Some of this lengthy colloquy referred to what counsel for the plaintiffs thought they could prove by the witness; some of it referred to possible rulings by the court; and some of it referred to what counsel for the defendants considered to be the law. However, no ruling was made by the court on any specific testimony offered, nor was there any formal proffer of proof made by the plaintiffs. This is a most unsatisfactory mode of attempting to reserve questions for appellate review. It often requires a careful study of many pages of the record extract, which the study reveals to have little, if any, bearing upon the issues to be decided. And in the absence of some ruling by the court, there is nothing for the Court of Appeals to review. State Roads Comm. v. Berry, 208 Md. 461, 118 A.2d 649.

Maryland Rule 522 a and b does not require a formal exception to a ruling of the court, but states that it is sufficient if a party 'makes known to the court the action which he desires the court to take * * *.' A simple and effective manner of preserving for appellate review the correctness of the trial court's rulings when failing to admit offered testimony is for counsel to ask specific questions of a witness, and obtain a rulign by the court on each question ¹ (as a matter of practical procedure, if the court deems it desirable certain of the questions may be dictated to the court stenographer at the bench beyond the hearing of the jury); and, if the question itself does not disclose its relevancy, then counsel should call to the court's attention the nature of its materiality. Another easy and also effective method of obtaining appellate review not only of the immediate question asked but also those of a similar nature is, after an objection has been sustained to a question asked, to make a formal proffer of what the witness' testimony would be in answer to the question asked and those of a similar nature, place the proffer in the record, and obtain a ruling by the court on its admissibility. ²

The court finally concluded the above mentioned colloquy by directing counsel to ask the question again and he would rule on it as 'we go along.' He stated, 'We [the court] have to rule on each question as it is asked.' The witness stated, in substance, that he had purchased a home in the subdivision in 1953 and thereafter had 'heard various comments about septic tank operations in the area'; that in December, 1953, 'some of the residents of the area were holding a meeting to discuss the problem of septic tank operations in several of the back yards in this particular section of the subdivision'; and that in 1954 and 1955 he held a real estate 'license through his [Benton's] realtors agency.' Objections (they should have been motions to strike) were made and sustained. No further questions were asked as to what the 'various comments' were, or what the object of the meeting 'to discuss the problem of septic tank operations' was, or that the defendants had knowledge of either, nor was any proffer made to aid in showing the relevancy of any of this testimony. Obviously, such testimony, standing alone, was too remote to have any probative value.

The same procedure was followed when Fred C. Hasselbring, loan guaranty officer of the V. A., was called as a witness, i. e., after objection was made to a question asked, a colloquy followed at the bench and the court again directed counsel to ask questions, stating he would rule on their admissibility as they were asked. Thereafter, the court sustained objections to questions that inquired if the witness had, in 1954, 'ever inspected or had any other dealings with that area [Seabrook Acres]'; if V. A. finance loans had ever been made on homes in that area; and if in 1954 he had seen the condition 'of the septic tank systems in the Seabrook Acres area.' It was conceded that the witness had not 'inspected' the plaintiffs' lot, and no proffer was made to show any knowledge on the part of Benton or Halley of the witness' activities, or that of the V. A. Under these circumstances, the testimony attempted to be elicited by these questions was, we think, too remote.

In addition, Mrs. Fowler, who had assumed the direction of plaintiffs' case, destroyed any value that this testimony of these witnesses would have had, if it had been admitted. The testimony was offered in an attempt to show that the soil in Seabrook Acres, generally, was not satisfactory for the proper functioning of septic tanks. However, Mrs. Fowler called Harry C. Naylor, a County Health Department Inspector, who testified in response to questions propounded by her that he had personally made a percolation test (describing the same) on plaintiffs' lot before a permit was issued to Benton for the septic tank system. He further stated that the test was satisfactory, and, had it not been, no permit would have been issued. Plaintiffs' counsel had conceded that the adaptability of property for septic tank use depends on many factors, such as elevation, run-off and sandy, loamy or clay soil. (This is a fact that is very generally known.) In other words, a lot that is satisfactory for septic tank use may be located quite close to those that...