George B. Gilmore Co. v. Garrett

• Decision Date: 24 April 1991
• Docket Number: No. 07-CA-59155,07-CA-59155
• Citation: 582 So.2d 387
• Parties: GEORGE B. GILMORE COMPANY v. Jimmy E. GARRETT.
• Court: Mississippi Supreme Court

Page 387

582 So.2d 387

GEORGE B. GILMORE COMPANY v. Jimmy E. GARRETT.

No. 07-CA-59155.

Supreme Court of Mississippi.

April 24, 1991.

Rehearing Denied July 31, 1991.

James H. Herring, Herring, Long & Joiner, Canton, for appellant.

C.R. Montgomery, Montgomery Smith-Vaniz Firm, Canton, Rebecca B. Cowan, Montgomery Smith-Vaniz McGraw, Jackson, for appellee.

Mark D. Herbert, Victoria W. Thomas, Ott Purdy & Scott, Jackson, for amicus curiae.

En Banc.

HAWKINS, Presiding Justice, for the Court:

George B. Gilmore Company has appealed a judgment in the circuit court of Madison County in favor of Mr. and Mrs. Jimmy E. Garrett in the amount of $13,000 in a suit charging Gilmore with the negligent construction of their house. The Garretts have cross-appealed. In this opinion we address the question of negligence in performing a contract and there being evidence to support Gilmore's negligence in performance of his obligations, especially his failure to give any warning of yazoo clay, we affirm. Because of the error in a jury instruction authorizing a reduction in damages insofar as the negligence of a prior owner may have contributed to the cause of the damage to the house, we reverse and remand on cross-appeal.

FACTS

In 1977 Mr. and Mrs. William R. Yates were desirous of building a residence in Madison County. Yates was completing six years of service in the U.S. Navy, where he had been promoted from an enlisted man to a commissioned officer in a construction battalion ("Seabees"). Yates held a degree in landscaping from Mississippi State University, which he described as one-half architecture and one-half civil engineering.

The Yateses engaged the services of a local realtor and selected a three-acre sloping tract. Yates was eligible for a Veterans Administration (VA) guaranteed loan, and Kimbrough Investment Company was the lender secured by the realtor. George B. Gilmore Company, a Jackson corporation in which Gilmore was the sole shareholder, agreed to be the builder.

The Yateses, Gilmore and the realtor met, and the Yateses selected a ranch style three bedroom house from a catalogue, but excluding the fireplace. They made a $5,000 down payment, with the entire balance to be financed by the VA secured loan.

The lot was deeded to Gilmore, and upon completion of the house, the property was conveyed by Gilmore to the Yateses.

Gilmore testified that the plans and specifications were furnished to him. Presumably the plans and specifications were obtained from the company which published the catalogue. ¹

Gilmore explained the procedure in VA guaranteed loans. The mortgage company requested the VA appraisal. A VA appraiser then appraised the land and proposed house, and Gilmore agreed to build it for the appraised value.

The lot was then cleared, and soil was filled in on the lower ground of the lot where the house was to be located, and the lot leveled. "[T]hen you go ahead and dig your slab and put your plumbing in, wire mesh and steel, and then you call for an inspection." He said that the trenches were usually a foot wide and dug "eighteen inches or to firm soil." Following this, a VA inspector would come and determine if the foundation was proper for the remaining construction.

Gilmore continued, "The work has to be done in a neat, workman-like manner to meet the plans and specifications that is furnished or in conformity with them." In this case the inspector came and approved the proposed foundation. Following this, a concrete slab floor was poured. During the construction of the house there was a second inspection after the house had been "blacked" or framed in. Then there was a third and final inspection upon the completion of the house. The house was constructed in accordance with the plans and specifications and approved by the VA inspection. Following completion, the VA required a one-year warranty from the builder.

Gilmore made no soil borings or any other soil test preparatory to construction, nor did he advise the Yateses that any such test should be made. In 1977 there was no custom or practice in the local building trade to make soil tests for residences in Madison County, and still was not at the time of trial in January, 1988, according to Gilmore. Neither the VA nor the Federal Housing Administration (FHA) required soil testing. Gilmore did concede that with the present knowledge of Madison County soils, on expensive homes he would warn the prospective owner of a need for soil testing.

In 1977 the builders relied solely upon VA and FHA guidelines and inspections as to their responsibility on foundations.

The Yateses gave Gilmore no instruction as to the foundation or construction of the house, relying instead upon the plans and specifications, Gilmore and VA inspections. Yates was surprised at the amount of fill dirt required on the back side of the house, but other than that, was satisfied with the construction.

In September, 1980, the Yateses sold the property to Mr. and Mrs. Jimmy E. Garrett. The Yateses had experienced no problems with the house during their occupancy, nor did the Garretts until the summer of 1984. At that time the house developed serious cracks, dropping six to eight-and-one-half inches on one end, and wide cracks appeared in the exterior and interior walls and ceiling. The floor also cracked.

Four to five feet beneath the surface of the soil in this part of Madison County there is a "yazoo clay" formation which has a marked expansion or contraction depending upon the water absorbed into it, or drained from it.

The Garretts sued Gilmore in the circuit court of Madison County in July, 1986, alleging breach of an implied warranty to build the house in a workmanlike manner, and also negligence in construction.

Charles R. Furlow testified as an expert on behalf of the Garretts. Furlow held a master's degree in civil engineering, and was a consulting engineer with a specialty in geotechnical engineering.

Preparatory to testifying Furlow made an inspection of the house and did numerous soil borings. He took measurements of the footing to determine settling. He testified to the defects above noted, and described getting the sensation of the floor "tilting" in one room.

He said the yazoo clay was a "very expansive material," and the "volume changes are very large when water is added or water taken away from it." Adding water would cause the foundation to swell and you would see signs of it, and taking the moisture away would also be evident by settlement and cracking of the structure. It was his opinion that the house had an improper foundation, with yazoo clay just a few feet below the surface, and the expansion and contraction of the clay caused the settling and cracking.

In order for a builder to protect a structure on a yazoo clay subsurface, Furlow said he should first bore to determine the depth of the clay, and if within a few feet of the surface he could select one of three courses. He could clear all vegetation, and then bring in enough of the proper type of fill material of sufficient depth to create a buffer over the clay. This would cost $1,500 to $2,000.

Second, he could remove the soil down to the clay and replace it with material "that is needed to keep the clay from expanding and contracting." This would cost around $4,000.

The third choice was a deep foundation on a series of concrete piers dug deep into the soil, entailing an expense of approximately $15,000.

Furlow said the cost of making a soil boring test was $600-$800.

Furlow testified a house should not be constructed without a soil test, and when yazoo clay was found close to the surface as in this case, one of these procedures should be followed. Failure to do so would result in moving and cracking a structure as occurred to the Garrett's house. He testified that yazoo clay had been known to exist in Madison County and this area of the state at least since the 1950s, and perhaps before. There were maps of the various soils published in 1960 showing the location of yazoo clay, which could be purchased for $1.50. He also stated that in the past ten years his firm had done 40-50 jobs in the town of Madison where there was a yazoo clay formation.

He testified no method of repair, mud jacking or concrete pad would be permanent, but would have to be repeated every few years. Furlow also stated that the problem with the house was not caused by poor drainage away from the foundation.

Furlow read the 1976 edition of the Southern Building Code:

"Footings and Foundations." (E)

When it is definitely known the top or sub-soils are of a shifting or moving character, all footings shall be carried to a sufficient depth to ensure stability. The excavation around piers shall be back filled with soils or materials which are not subject to such expansion or contractions.

The witnesses for the defense, including Gilmore, expressed the opinion that poor drainage away from the house caused the problem. R.C. Carter, a soil expert, while testifying poor drainage caused the problem, conceded yazoo clay caused the expansion, and a builder should be careful on this type of sub-soil. Ben L. McMillin, a home builder, testified there was no trade custom to make soil testings in Madison County. He conceded that yazoo clay formations in Madison County were known in 1977. Ralph E. Rives, an appraiser and developer, testified that the FHA and VA were the best standards in the United States for single-family dwellings, and that neither of them had ever required soil testing. Other witnesses for the defense corroborated Gilmore's opinion that inadequate drainage away from the house caused the problem, and there was nothing about the construction which caused it.

The jury returned a verdict for the Garretts for $13,000. Gilmore has appealed, and the Garretts cross-appealed.

LAW

I. SUFFICIENCY OF THE EVIDENCE

Gilmore first argues sufficiency of the evidence to support the verdict, claiming that it is not only...