Kaze v. Compton

• Decision Date: 23 September 1955
• Citation: 283 S.W.2d 204
• Parties: James P. KAZE et al., Appellants, v. James W. COMPTON et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 204

283 S.W.2d 204

James P. KAZE et al., Appellants, v. James W. COMPTON et al., Appellees.

Court of Appeals of Kentucky.

Sept. 23, 1955.

Rehearing Denied Nov. 18, 1955.

S. J. Stallings, Louisville, for appellants.

W. Scott Miller, Sr., W. Scott Miller, Jr., Louisville, for appellees.

STANLEY, Commissioner.

In November, 1950, the appellants, James P. Kaze and wife, purchased of the appellees, James W. Compton and Sarah Compton, a residence on Tuberose Avenue in the southern suburbs of Louisville for $7,100. In this action of deceit for damages based on the concealment of the fact that a twelve inch drain tile ran beneath the house, which caused water to accumulate under the house and in the yard, a verdict for the plaintiffs for $2,600 was returned. The court sustained a motion for a new trial and overruled several motions of the plaintiffs seeking to have the judgment reinstated or the case set down for another trial. There is no motion for a summary judgment in the record, but an order recites that the defendants moved for such a judgment and the court sustained it upon a consideration of the pleadings and evidence heard on the trial. He concluded that there was no 'genuine issue as to any material fact and no controversial question as a matter of fact' and that the defendants were entitled to a judgment as a matter of law. CR 56.03; Watts v. Carrs Fork Coal Co., Ky., 275 S.W.2d 431. The conclusion rests on the view that the plaintiffs had relied only on proof that there was a drainage tile under the house which the defendants knew about but had not disclosed to them, and that water had come from this tile under the house. The court was of the opinion that to recover damages the plaintiffs must have pleaded and proved that the defendants knew there was a defect in the drainage tile and knew water would escape from it and accumulate under the house; moreover, that the plaintiffs had not proved that the water had in fact come from this tiling. The appellants construe CR 56.03 as requiring an interval of at least ten days after service of a motion for a summary judgment, hence, submit the court was without authority to render the same on the day the motion was made.

The plaintiffs 'strenuously objected' to all the several orders but did not offer or suggest a desire to file and affidavit of merit in opposition to the summary judgment or ability to present any further evidence in support of their cause. We pass over the technical question of premature entry of the summary judgment and look to the record and grounds for the court's action.

The complaint did not use the term 'defective' in describing the tiling but did charge that the defendants had represented to the plaintiffs that the lot was like the surrounding land insofar as natural drainage of the surface water was concerned; that they knew there was a large drainage tile buried in the ground running the full length of the lot and directly under the house and had not disclosed that fact; that the space beneath the house becomes flooded with water and sewage by reason of the drainage tile. It is a familiar rule that after a verdict the pleadings will be liberally construed and defects therein disregarded unless they are prejudicial to the substantial rights of the adverse party. Thoenis' Adm'x v. Andrews, 231 Ky. 160, 21 S.W.2d 250. Thus judging the pleading, it seems to us the court should have deemed it sufficient, especially since the pleading was not necessarily determinative. Clay, CR 56.03, p. 503.

With respect to the consideration of the evidence, we think the court rightly regarded the situation as corresponding to that at the close of the case when the motion for a directed verdict was entered. At this stage of the case these proceedings were in advance of a second trial and the inquiry was whether the evidence which was part of the record revealed a genuine issue of fact or facts, particularly of fraudulent concealment of a condition which made the property worth less than the purchasers paid for it.

There is no contradiction that the plaintiffs did not know of the existence of this drainage tile before they bought the property. It was in short sections with open, unsealed connections and drained a large area of low and crawfishy land. It was part of a system of drainage which had been installed many years before either by a private owner when the land was used for farming purposes or by the United States Government in the development of Camp Taylor during the first World War. The defendants had acquired several acres of this land and erected forty small houses for the purpose of selling them. None of them had a basement. In the spring of 1950 workmen engaged in laying a gas pipe line in the street in front of the lot later sold the Kazes broke a section of the drainage line. Both the defendants then saw that the line ran across the street and through this particular lot and that it was clogged up. A witness testified that he had looked at this Kaze lot and had seen water bubbling up from the ground as if from a spring at a spot over which the house was soon thereafter erected. For this reason he had refused to buy the lot. Many witnesses testified they had seen water bubbling up under the house after the Kazes had bought it. After a hard rain it comes up as if from a spring or a force pump. The adjoining lots had no such conditions. In a deposition taken as on cross-examination, one of the defendants admitted the property had been previously sold to another person and he had repudiated the sale, which, however, the defendants insisted was not on account of the condition now complained of. After they had bought the house and lot the plaintiffs had called the defendants and showed them water bubbling up in the yard and complained about the entire situation. The defendants undertook to remedy the condition by having a deep catch-basin or well dug on the rear of the lot, but it was...