Sands v. R. G. McKelvey Bldg. Co.

• Decision Date: 22 August 1978
• Docket Number: 39202,Nos. 39201,s. 39201
• Citation: 571 S.W.2d 726
• Parties: Chester J. SANDS and Estella Sands, Plaintiffs-Appellants-Respondents, v. R. G. McKELVEY BUILDING Co., Defendant-Respondent-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 726

571 S.W.2d 726

Chester J. SANDS and Estella Sands, Plaintiffs-Appellants-Respondents, v.R. G. McKELVEY BUILDING Co., Defendant-Respondent-Appellant.

Nos. 39201, 39202.

Missouri Court of Appeals, St. Louis District, Division Two.

Aug. 22, 1978.

Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.

Application to Transfer Denied Nov. 6, 1978.

Robert E. Morley, O'Fallon, for plaintiffs-appellants-respondents.

L. W. Boschert, St. Charles, for defendant-respondent-appellant.

STEPHAN, Judge.

This suit arises from the construction of a home for Chester and Estella Sands in St. Peters, Missouri, by the R. G. McKelvey Building Company.Because the parties have filed cross appeals, they will be referred to as they appeared in the court below.Pursuant to a jury verdict plaintiffs Sands were awarded $3,000 in actual damages.For reasons hereinafter stated, we reverse and remand for a new trial.

Plaintiffs' petition in the circuit court was in two counts.The first count alleged that defendant had breached an implied warranty of habitability in the sales contract by cutting and installing floor joists in an unskillful and unworkmanlike manner so as to provide inadequate support for the house.Count II repeated the allegations of Count I and further alleged that the joists were not constructed in compliance with the Building Officials and Code Administrators (BOCA) Code, duly adopted by ordinance by the City of St. Peters and in effect at the time of the construction of the home.Each count asked for $10,000 in actual damage and costs; Count II, alleging a "deliberate, willful and malicious" violation of the St. Peters ordinance, also sought punitive damages in the amount of $10,000.At the close of the evidence, the trial court sustained defendant's motion for a directed verdict as to punitive damages.The court also, on defendant's motion, required plaintiffs to choose between Counts I and II for the reason that submission of both theories of liability would open up the possibility of double recovery.Plaintiffs elected to proceed on Count II and submitted its case on a theory of per se negligence based on violation of the BOCA Code.

The floor joists here are "2 X 8" planks at the ceiling of the basement and comprise the supporting structure upon which the house is built.In this house, two steel I-beams, or girders, run the length of the basement ceiling at intervals of roughly one-third of the width.The joists are perpendicular to the girders, with one end resting on a girder and the other end on the nearest concrete foundation wall, or in the center section with the ends resting on each girder.The joists rest on edge, and on this base is built the floor of the first story of the house.

The events leading up to this suit are these: On October 6, 1974, plaintiffs signed a contract to purchase a home in a subdivision being developed by defendant in St. Peters.The home was to be identical to a model home which the Sands had inspected in the subdivision except for the inclusion of a small number of optional extras; all plans and specifications were therefore the product of defendant.The house was built between October and December and the closing completed on December 10.The BOCA Code requires that joists resting on a girder must bear four inches on the girder.On an acknowledgement of acceptance form signed at the time of the closing, plaintiffs made note of a number of small items that needed completion or repair.Included among these was a single joist which, as Mr. Sands had noticed upon a brief inspection prior to the closing, had no bearing at all on the girder.Mr. Sands did not discover that many of the other joists were shorter than required by the Code until several weeks after the sale was closed.

In response to plaintiffs' complaints in the matter, defendant sent two carpenters back to the house to install some additional joists, thirteen to sixteen in number, next to those about which plaintiffs were particularly concerned.The efficacy of this repair was the subject of much dispute at the trial.Defendant's president, Mr. Robert G. McKelvey, testified that, although the joist system was originally not in compliance with the BOCA Code, it was nonetheless structurally safe even before the repair work with the exception of the single short joist; and that after the doubling of a number of the joists, the house was safe.Mr. Rayford Pickett, a civil engineer who had been the St. Peters city engineer at the time the house was built, testified that the joists, as corrected, complied with the BOCA Code and that the repairs provided the house with a "much better" bearing surface and "much stronger" structure than it would have had if the system had originally complied minimally with the Code.Pickett indicated that his testimony was based on an inspection made over two years after the house was built, that he saw no evidence of sag or deflection in the floors, and that such sag would normally occur within six months of construction if the system were defective.Mr. Ben Kirchner, the city inspector for St. Peters, testified that on the basis of an inspection made even before the repair work was done, he"passed" the house despite the short joists.Kirchner testified that it was common practice to install joists with an inch and a half to two inches of bearing (as had most of the joists in question here), that as city inspector he regarded such a support system adequate for the house, and that plaintiffs had sustained no damage due to the construction of the joists in this fashion.Much of this testimony was disputed, however, by plaintiffs' witness, Mr. Ward Emigh, a private consulting engineer who made an inspection of the house at plaintiffs' request approximately a year after plaintiffs had moved into it.Emigh testified that as originally constructed, some twenty-eight joists in the house had inadequate bearing and violated the BOCA Code in other respects.He further testified that, even as repaired, the joists did not comply with the BOCA Code and that the added joists would provide no additional structural strength whatever because they were warped and improperly installed.He, therefore, discounted their effect altogether.Emigh indicated that he too saw no evidence of sagging in the floor, but believed that should there be any movement at all in the foundation, there would be inadequate reserve strength to support the eastern side of the house, where the problem was most acute.

After Emigh's inspection, plaintiffs asked another builder, Mr. Henry Stealey, to give them an estimate of the cost of certain repair work.Stealey estimated that it would cost $558 ¹ to remove ten of the replacement joists which defendant had added and to install eighteen new ones.Stealey was not asked his opinion of the necessity of these repairs; plaintiffs designated the items of repair on which they wanted an estimate.There is no evidence in the record as to whether such repairs would have put the house in strict compliance with the BOCA Code.

Plaintiffs' dissatisfaction with the house grew to the point that "We were so disgusted we were glad to get out."After only twenty months of occupancy, they sold the house on July 1, 1976.They asked for and received $32,500, which represented the original purchase price plus the cost of minor improvements (unrelated to the joists) which they had made.The new purchaser testified that Mr. Sands told them that he only wanted to get out of the house what he had put into it.The new owners were fully apprised of what plaintiffs considered to be the defects in the house.Mr. Sands testified that a fair market price for the home, had it been properly constructed, would have been $35,000; the new owner gave an estimate of $36,000 or more.At the time of the trial, more than two years after construction was completed, there was still no evidence of sagging in the floors.

On appeal, defendant complains (1) that the verdict is excessive in view of the evidence that replacement of eighteen joists would have cost $558; (2) that the court erred in giving MAI 4.01, proffered by plaintiff, as the measure of damages instruction; (3) that the court erred in giving the verdict director, a modified form of MAI 17.18(Per se Negligence Violating Speed Limit);(4) that the court erred in refusing to clarify the instructions after the jury made such a request in writing during its deliberation; and (5) that the evidence did not support a submission to the jury that a violation of the BOCA Code ordinance could be found to be the proximate cause of plaintiffs' loss.On their appeal, plaintiffs contend that they should have been allowed to seek punitive damages.

We hold that, in giving MAI 4.01 rather than 4.02, ²the trial court committed error warranting a new trial.Supreme Court Rule 70.01(b)³ states that when an MAI is "applicable in a particular case . . . such instruction shall be given to the exclusion of any other on the same subject."It has been the policy of the courts to require strict compliance with the requirements of MAI.In general, when an MAI is applicable, its use is mandatory.DeArmon v. City of St. Louis, 525 S.W.2d 795, 800(Mo.App.1975);Siteman v. Woodward-Clyde & Associates, Inc., 503 S.W.2d 141, 145(Mo.App.1973).Any deviation from or unnecessary modification of the applicable MAI is "presumptively prejudicial."State ex rel. State Highway Commission v. Beaty, 505 S.W.2d 147, 154(Mo.App.1974);Siteman, supra, 503 S.W.2d 145.In this case, the highlighted titles of the two MAI's clearly indicate that 4.01 is to be used when personal or both personal and property damages are claimed and 4.02 is to be used in cases of property damage only.The Notes on Use to 4.02 state that "This instruction should be used in cases involving property damage only."The Committee's Comment on 4.02 states that "Where Both personal and property damages are...