Sabella v. Wisler

• Decision Date: 29 June 1962
• Court: California Court of Appeals Court of Appeals
• Parties: Luciano A. SABELLA and Diane Sabella, individually, and as husband and wife, Plaintiffs, Respondents and Appellants, v. J. W. WISLER, Defendant and Appellant, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, a corp., Defendant and Respondent. Civ. 19754.

Page 277

23 Cal.Rptr. 277

Luciano A. SABELLA and Diane Sabella, individually, and as husband and wife, Plaintiffs, Respondents and Appellants, v. J. W. WISLER, Defendant and Appellant, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, a corp., Defendant and Respondent.

Civ. 19754.

District Court of Appeal, First District, Division 3, California.

June 29, 1962.

Rehearing Denied July 18, 1962.

Opinion vacated 27 Cal.Rptr. 689, 377 P.2d 889.

Bagshaw, Schaal, Martinelli, Weissich & Jordan, by A. E. Bagshaw, San Rafael, for appellant J. W. Wisler.

Carter, Terreo & O'Connell, by Loyd W. Carter, San Francisco, for respondents Luciano and Diane Sabella.

Thornton & Taylor, San Francisco, for respondent National Union Fire Ins. Co.

DEVINE, Justice.

The judgment roll is the record of this appeal.

Plaintiffs, husband and wife, bought a home from defendant Wisler, a contractor and experienced home builder, who had built it for sale to anyone willing and able to buy, and who had no contact with plaintiffs prior to the sale of the completed home. Wisler had purchased the land on which the home was built in 1954. The lot was substantially level and did not have the appearance on the surface of being filled land. Actually, the lot had been a pit of a quarry, and had been filled with tree cuttings and other loose wastes, over which dirt and rock had been shoved by bulldozer by Wisler's grantors. The earth had not been compacted, and the court found that it was unsuitable for use as a building site.

In 1955, Wisler, preparing to build, excavated to a depth of 18 to 24 inches in order to lodge foundation footings. The court found that, although a reasonably prudent person would not have been alerted to the existence of fill material from the appearance of the land at the surface, such person would have discovered, as a result of excavation, that the earth was not sufficiently compacted to support the intended building, and would have caused soil tests to be made before proceeding with the building; and that it was negligence on Wisler's part to fail to disclose the unsuitable nature of the ground and to fail to cause soil tests to be made.

The building was completed, and plaintiffs bought it September 16, 1956. The court found that it is the nature of the uncompacted fill such as that present in plaintiffs' property to settle, and that the uncompacted fill settled as the natural result of its own weight, the weight of plaintiffs' dwelling and the induction of waste water from a broken house lateral sewer; that the cause of said sewer pipe so breaking and leaking was either the settling and consolidation of the inadequately compacted fill material upon which it was placed, or the improper closure of certain joints therein, or a combination of both those causes, and leakage from said break in the sewer commenced not more than six months and not less than three months prior to May 1, 1959. The water infiltrated the land beneath the house and caused the uncompacted earth to settle and consolidate rapidly, and this in turn caused the foundations to sink unevenly, which produced uneven floors, cracked walls, jammed doors, and, in all, damages in amount $8,200.

Plaintiffs at all relevant times were holders of a 'homeowners' policy of National Union Fire Insurance Company, which contains an 'all physical loss' endorsement which insures against all physical loss, with certain exceptions, among which is this: 'This endorsement does to insure against loss: (b) by termites * * * wear and tear, deterioration, * * * settling, cracking, shrinkage, or expansion of pavements, foundations, walls, floors or ceilings. * * *'

Judgment was awarded in favor of plaintiffs against the builder, Wisler, and against plaintiffs and in favor of defendant National Union Fire Insurance Company. Wisler appeals from the judgment against him, and plaintiffs appeal from the judgment in favor of the insurance company.

I. The cause of the Buyers Against the Builder

It is to be observed that there is no contention at this point that the builder actually knew of the condition of the land and thus was guilty of fraud by concealment of its character, as in Buist v. C. Dudley DeVeilbiss Corp., 182 Cal.App.2d 325, 6 Cal.Rptr. 259; nor is the case one wherein a contractor is sued for breach of contract to build, because the house was bought ready-built; nor is there any claim by plaintiffs of breach of warranty, because no express warranty was made, and plaintiffs do not rest their case upon any implied warranty, but on negligence only.

In our opinion, the builder is responsible for the damages, under the provisions of section 1714 of the Civil Code, which reads as follows: 'Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.'

It is to be noted that the injury to be compensated is injury to another, and is not limited to injury to property which belongs to another than the negligent party at the time of the injury. There can be no doubt, under the unchallenged findings of fact, that defendant's negligence caused injury to 'another,' namely, to the very parties with whom defendant dealt. What, then, can be said against the application of the liability referred to in the statute?

If a part of the building containing a latent defect fails in its function, by negligence of the builder, and that part is of such nature that failure would be reasonably certain to cause injury to person, the builder is responsible. Thus, in Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183, where a defectively built porch railing gave way and precipitated a tenant who was leaning against it to the ground, the contractor was held liable, even though the owner had accepted the building, where the defect was latent; and in Dow v. Holly Manufacturing Co., 49 Cal.2d 720, 321 P.2d 736, where a general contractor was held liable for deaths caused by a negligently manufactured gas heater, the contractor having put out the heater as his own, having prepared plans and specifications for the building, and having failed to discover deficiencies which proper inspection would have disclosed. Following these two leading cases, the rule was extended to property damage in Stewart v. Cox, 55 Cal.2d 857, 13 Cal.Rptr. 521, 362 P.2d 345, wherein defendant, a subcontractor, who had negligently done repair work to plaintiffs' swimming pool, was held liable for damages to plaintiffs' house and yard and pool, although the work had been accepted by the general contractor and by plaintiffs.

In the case before us, there was not a situation of failure of a part of a building such as a railing, nor of an adjunct to the property such as a swimming pool, but a defect so substantial that the entire building subsided. If we were obliged to recognize this distinction as making a difference in the liability of the contractor, we should have no difficulty in determining that the foundation and footings, being negligently lodged, are parts of the house which, when deficient, may be found reasonably certain to cause damage to the rest of the building. Such distinction seems artificial and unnecessary, however, because if negligence in the construction at large causes damage to the structure, surely this is of as much legal effect as negligence in the construction and placement of a part.

We hold, therefore, that when a contractor who builds for sale to the public, constructs negligently, so that latent defects exist, as a proximate result of which the building in large part is damaged, he is liable in damages to the purchaser. We need not decide, as appellant argues we must if we do not reverse the judgment, that the contractor would be liable for every imaginable defect. The subject of liability of the contractor, following sale of the...