Jowdy v. Guerin

• Decision Date: 11 August 1969
• Docket Number: No. 1,CA-CIV,1
• Citation: 457 P.2d 745,10 Ariz.App. 205
• Parties: Charles A. JOWDY and Shirley R. Jowdy, his wife, Appellants, v. Alma P. GUERIN, also known as Alma Miller, a widow, Appellee. 599.
• Court: Arizona Court of Appeals

Page 745

457 P.2d 745

10 Ariz.App. 205

Charles A. JOWDY and Shirley R. Jowdy, his wife, Appellants, v. Alma P. GUERIN, also known as Alma Miller, a widow, Appellee.

No. 1 CA-CIV 599.

Court of Appeals of Arizona, Division 1, Department A.

Aug. 11, 1969.

Rehearing Denied Sept. 29, 1969.

McKesson, Renaud, Cook, Miller & Cordova, by J. Gordon Cook and Val A. Cordova, Phoenix, for appellants.

Gibbons, Kinney, Tipton & Warner, by Howard W. Gibbons, Phoenix, for appellee.

DONOFRIO, Presiding Judge.

This is an appeal by the defendants, Mr. and Mrs. Charles A. Jowdy, (appellants) from a judgment entered against them in favor of the plaintiff, Alma Guerin, (appellee) in an action for waste on real property located near Wittman, Arizona. To be determined is whether an action in waste lies under the facts of this case. Then, if an action in waste lies, whether the evidence as to damages is sufficient to support the judgment.

Before going into the issues we believe a brief statement of the pertinent facts should be stated. Briefly, the facts are: Mr. and Mrs. Guldner, who were codefendants in the trial court, but who are not parties to this appeal, in April 1959 purchased an interest in the Wittman property upon which there was a residence. Although the type of instrument conveying the interest was not introduced in evidence, it was undisputed that the Guldners as purchasers owed money on the property. On August 14, 1959, the appellee, hereafter referred to as plaintiff, purchased the vendor's interest in this property from Lane Title & Trust Company for $2184.00. The transfer was made by special warranty deed conveying the property to plaintiff subject to the agreement with the Guldners. The main basis for the action in waste was the destruction of the residential improvements on the property.

At the trial plaintiff testified that she visited the property when she purchased the interest, but that she did not go inside the residence because the Guldners were living in it and Mr. Guldner was ill. Plaintiff described the property as 'just a cute little cottage'. She described it as being constructed of 'stucco' and stated that it appeared from the outside to be 'well maintained--I mean it was just a nice little home for a family'. She said she had no opinion as to the value at that time as she wasn't familiar with the area at all.

On August 9, 1961, the defendants Jowdy as seller, and the Guldners as buyer, entered into escrow instructions with Lane Title & Trust wherein the Guldners purchased some apartments from the Jowdys for $29,000. The instructions provided that $4000.00 of the purchase price would be 'represented by trade of equity in Mobile Town and Wittman direct and outside of escrow'. The Mobile Town property was an unimproved lot and the Wittman property was the property involved in the instant case. On August 10, 1961, the Guldners transferred their interest by warranty deed to the defendants Jowdy. The deed stated that the Wittman property was conveyed subject to the agreement of sale. Mr. Jowdy testified that he visited the property once just prior to trading for it when the Guldners were still living in it, and once just after, when the Guldners had moved out. He described the property as being in substantially the same condition both times--a fenced yard with a small two-bedroom house which had been burned in the back and partitioned off with some sort of wallboard. He stated that at the time he felt the property was worth about $2,500.00; that he advertised and tried to sell it for that amount, but was unsuccessful. There was no evidence presented of an agreement by Jowdy to pay the Guldners payments on the property, but Mr. Jowdy testified that he made payments of $35.00 per month until May or December of 1962 when he decided to quit making payments because he could not sell the property.

At the time the Jowdys purchased the Guldners' interest there was $2,230.88 owing, and at the time they ceased making payments there was a balance of $1,980.27 remaining. This balance is the same as the amount of the judgment. The only other evidence as to the value of the property was a fire insurance policy which had been taken out in December 1959 for $2,500.00.

Mr. Jim Perry, who was in the construction business, testified that he accompanied Mr. Jowdy on both his visits to the property and described the improvements as follows:

'Well, this house and the whole street were just junk houses. This particular one was an army barracks that had been moved in * * * as best I remember it's half an army barracks and the rear partition had never been replaced fully, not permanent, just temporary. * * * When they cut it in half they partitioned the rear portion with some sort of temporary material. I believe it was dry wall. * * * The house had never fully--once it had been placed on the lot it had never been fully finished for living. And then fire damage had never been fully repaired either.'

Mr. Jowdy never again visited the property, and just left it empty. Plaintiff testified she visited the property several times after 1959 but did not say exactly when or what condition the property was in. She then said she went to the property in January 1963 and found it to be 'all demolished'. She said the whole back of the house was like someone had taken a knife and cut it down; there was garbage all around, and the windows had been boarded up. In her opinion the lot was worth about $300.00 and the improvements were not worth more than $200.00 or $300.00 unless the place was remodeled. She still maintained the building was white stucco--not an army barracks--and she said she found no evidence of a fire.

We first consider whether an action in waste lies under the facts herein.

Finding very little law in Arizona on the subject of waste, we are compelled to look elsewhere. The definition of waste as found in 56 Am.Jur., Waste, § 2, Page 450 (1947), reads as follows:

'Waste * * * is a species of tort, which may be briefly and very generally defined as the destruction, misuse, alteration, or neglect of premises by one lawfully in possession thereof, to the prejudice of the estate or interest therein of another.'

And at § 4, Page 452:

'Waste is classified as voluntary or actual (sometimes called commissive), and permissive or negligent waste. Voluntary waste may be done by such acts as destroying, altering, or removing buildings, or cutting down timber trees. The failure of the tenant to exercise the ordinary care of a prudent man for the preservation and protection of the estate is permissive waste.'

Thus, three elements are essential to the cause of action:

1. There must be an act constituting waste.

2. The act must be done by one legally in possession.

3. The act must be to the prejudice of the estate or interest therein of another.

Applying this law, we first consider in connection with element No. 1 defendants' argument that the evidence is not legally sufficient to establish an act of waste on their part, and that the interest they have in the property does not subject them to liability. The facts are undisputed that the defendants completely divorced themselves from any concern over the property and did not make any plans for its protection. We believe this act clearly amounts to evidence upon which the trier of fact can find negligence required to constitute permissive waste since during the time of the waste defendants had the possessory rights to the property. Neglect by one lawfully in possession to the prejudice of the estate or interest of another in the property can be a basis for the action.

In Graffell v. Honeysuckle, 30 Wash.2d 390, 191 P.2d 858, 863 (1948), it was said '* * * Permissive waste implies negligence or omission to do that which will prevent injury, as, for instance, to suffer a house to go to decay for want of repair or to...