Tavares v. Horstman

• Decision Date: 03 December 1975
• Docket Number: No. 4481,4481
• Citation: 542 P.2d 1275
• Parties: Joe TAVARES, Appellant (Defendant below), v. Robert A. and Rosemary HORSTMAN, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 1275

542 P.2d 1275

Joe TAVARES, Appellant (Defendant below), v. Robert A. and Rosemary HORSTMAN, Appellees (Plaintiffs below).

No. 4481.

Supreme Court of Wyoming.

Dec. 3, 1975.

J. F. Mahoney, Casper, signed the brief ^* and Mayne W. Miller, Casper, appeared in oral argument for appellant.

R. R. Bostwick, Murane, Bostwick, McDaniel, Scott, Greenlee & Owens, Casper, signed the brief and appeared in oral argument for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

We are going to affirm the trial court and discuss three primary issues in the following light: (1) The rule of caveat emptor (let the buyer beware) does not apply to the sale of new housing by a builder-vendor to the vendee; (2) There is an implied warranty of liability that goes with the sale of new housing by a buildervendor to the vendee; (3) Damages are recoverable by a vendee for negligent design and construction of new housing by the builder-vendor. Appellant's counsel with commendable candor contemplated this court's concurrence in those current concepts but seeks avoidance of their impact by two contentions: (1) Denial of fault by appellant-defendant and a claim of sole negligence or contributory negligence on the part of appellees-plaintiffs; and (2) Any existing implied warranty had expired.

The defendant, a land developer and builder, sold the plaintiffs a tract of land; the defendant built a home for plaintiffs on the property under an oral agreement with no express warranty. A warranty deed with only the usual covenants of title was delivered. Within a little over a year, the septic tank system backed sewage to a depth of about three inches into the plaintiffs' basement before it was discovered. A plumber was called; after pumping out the tanks a couple of times, he advised that something would have to be done about the system. Defendant was called and informed of this nasty predicament. He dug down to the discharge pipe, perforated the line and let the raw sewage flow into an open trench. Nothing further was done. Plaintiffs called him to do something further but he said he could not work on it because he had to go on a vacation. The stinking situation was so deplorable that plaintiffs called in an experienced septic tank contractor. The system had to be rebuilt because of its inadequacy. The soil in the area of the drainage field was of tight gumbo so a particular design and manner of installation was necessary. The contractor who rebuilt the system testified that the problems with the one he replaced were several. The defendant had installed foundation drainage pipe all around the house and constructed it to discharge into the septic tank system, causing an overload of the sewage disposal scheme. There was not enough capacity for the size home it was to serve. The excess water caused the drainage field to waterlog, backed effluent into the tanks, killed the bacterial actions supposed to be taking place there and, in turn, blocked the flow of sewage from the house. Having no place else to go, the noxious wastes covered the basement floor. Plaintiffs expended $2,083.00 to correct the condition.

Defendant had obtained no permit for construction of the system. He testified that he had but could not find it. The issuing agency could find no record of its issuance. Such permits are issued by the Casper-Natrona County Health Department. By its procedure, there is first determined the size of the residence, number of bathrooms, occupancy and what garbage disposal, dishwasher, washing machine or any other water-using appliance will be discharging into the system. That agency then makes soil percolation tests to determine its porosity-the capacity of the ground to absorb water. From that is concluded the size and type unit required. The system is inspected before backfilling and before a permit is issued. The trial judge was justified in concluding that defendant skipped this important step, which finding is an element of the court's general finding.

No request for findings of fact and conclusions of law were requested by either party before trial or at any time, pursuant to Rule 52(a), W.R.C.P. The court made only a general finding in favor of plaintiffs and against defendant. Judgment for plaintiffs in the sum of $2,083.00 was entered.

The facts, as related, are set out in the posture most favorable to the plaintiffs following the standard set out in Stock v. Roebling, Wyo.1969, 459 P.2d 780, 784, wherein it was said:

'* * * We must assume that evidence in favor of the successful party is true, leave out of consideration entirely evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. (Citing case.)' ¹

We have accordingly given no credence to defendant's claim of sole or contributory negligence of the plaintiffs in the erection of a born over part of the drain field. Furthermore, the plaintiffs cannot be chaged with negligence for a condition to which they were not alerted by a proper warning even if some act on their part may have contributed to the failure of the septic tank system. Brubaker v. Glenrock Lodge International Order of Odd Fellows, Wyo. 1974, 526 P.2d 52, 55. There was no occasion for them to be aware or even dream of any technicality involved in connection with operation of a septic tank system. But there were other reasons why defendant must fail in that regard. The burden of proving the negligence of another is upon him asserting it. Maxted v. Pacific Car & Foundry Co., Wyo.1974, 527 P.2d 832, 835. Contributory negligence is an affirmative defense with the burden of proof on the defendant. Anderson v. Schulz, Wyo.1974, 527 P.2d 151, 153. Questions of negligence and contributory negligence are for the trier of fact. Fitzsimonds v. Cogswell, Wyo.1965, 405 P.2d 785, 786. The defendant's evidence failed.

In the absence of special findings of fact, the reviewing court must consider that a judgment carries with it every finding of fact which is supported by the evidence. School District No. 32 In Fremont County v. Wempen, 1959, 80 Wyo. 311, 321, 342 P.2d 232, 235. A judgment will be affirmed on appeal if sustainable on any legal ground appearing in the record. Heyl v. Heyl, Wyo.1974, 518 P.2d 28, 30; In re Romer, Wyo.1968, 436 P.2d 956, 958.

From the cases which we shall cite in this opinion, it appears that the rule of the past and still existing in a few jurisdictions is that no implied warranties of quality in the sale of realty existed in the common law. ² The doctrine of caveat emptor reigned supreme. Cracks, however, began to appear in that tenet with respect to the sale of new housing. Favorite references used in the cases and work of scholars ³ come from the thoughts of Cardozo, The Nature of the Judicial Process (1921), p. 152:

'* * * If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.'

Later, Cardozo in his treatise, The Growth of the Law (1924), pp. 136-7, refined the idea to:

'* * * A rule which in its origin was the creation of the courts themselves, and was supposed in the making to express the mores of the day, may be abrogated by courts when the mores have so changed that perpetuation of the rule would do violence to the social conscience. * * *' ⁴

In Wyoming, this court has had no occasion to sustain the concept of caveat emptor in a real estate transaction. In Lawson v. Schuchardt, Wyo. 1961, 363 P.2d 90, 93, however, it was said:

'* * * It must be noted that the doctrine of caveat emptor is employed by modern courts under new standards of business ethics which demand that statements of fact be at least honestly and carefully made. Byrnes v. Mutual Life Insurance Company of New York, 9 Cir., 217 F.2d 497, certiorari denied 348 U.S. 971, 75 S.Ct. 532, 99 L.Ed. 756; Prosser, Torts, pp. 552, 553 (2 ed.).'

We, therefore, have the advantage over many other courts in not having to set aside a principle of long standing in our jurisprudence.

Since World War II homes have been built in tremendous numbers. There have come into being developer-builders operating on a large scale. Many firms and persons, large and small operators, hold themselves out as skilled in home construction and are in the business of building and selling to individual owners. Developers contract with builders to construct for resale. Building construction by modern methods is complex and intertwined with governmental codes and regulations. The ordinary home buyer is not in a position, by skill or training, to discover defects lurking in the plumbing, the electrical wiring, the structure itself, all of which is usually covered up and not open for inspection.

A home buyer should be able to place reliance on the builder or developer who sells him a new house. The improved real estate the average family buys gives it thoughtful pause not only because of the base price but the interest involved over a long period of time. This is usually the largest single purchase a family makes for a lifetime. Some may be able to pay cash but we cannot single out that buyer in the formulation of a rule.

It ought to be an implicit understanding of the parties that when an agreed price is paid that the home is reasonably fit for the purpose for which it is to be used-that it is reasonably fit for habitation. Illusory value is a poor substitute for quality. There is no need for the buyer to be subjected to the harassment caused by defects and he deserves the focus of the law and its concern. The significant purchase of a new home leads logically to the buyer's expectation that he be judicially protected. Any other result would be intolerable and unjust, as the cases which follow demonstrate.

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