Unverzagt v. Young Builders, Inc., 49096

• Decision Date: 12 November 1968
• Docket Number: No. 49096,49096
• Citation: 252 La. 1091,215 So.2d 823
• Parties: John V. UNVERZAGT v. YOUNG BUILDERS, INC.
• Court: Louisiana Supreme Court

Page 823

215 So.2d 823

252 La. 1091

John V. UNVERZAGT v. YOUNG BUILDERS, INC.

No. 49096.

Supreme Court of Louisiana.

Nov. 12, 1968.

Rehearing Denied Dec. 16, 1968.

Bean & Rush, Warren D. Rush, Lafayette, for defendant-appellee-applicant.

Pugh, Buatt, Landry & Pugh, J. W. Landry, Jr., Crowley, for plaintiff-respondent.

HAMITER, Justice.

John V. Unverzagt, the plaintiff, seeks to recover in this cause the cost of removing and replacing an alleged defective swimming pool constructed for him by the defendant, Young Builders, Inc.

The district court dismissed the suit. But its judgment was reversed on appeal, the Court of Appeal having awarded damages to the plaintiff in the sum of $14,000. 207 So.2d 405.

In an application to this court the defendant urged numerous errors, among those being that the Court of Appeal erred in finding that the damages resulted from faulty construction of the pool and also in failing to hold that plaintiff should have minimized them when he became aware of the condition.

We granted certiorari, but limited our consideration to the issue of quantum based on a determination of whether or not the plaintiff should have minimized his damages. 251 La. 1055, 208 So.2d 325.

Consequently, the question as to the cause of the damages is no longer at issue. We must determine only whether the plaintiff should be limited in his recovery to an amount which allegedly would have corrected the fault at an early stage. Incidentally, the pool now is a total loss and must be removed and rebuilt.

Construction of the pool, located behind plaintiff's residence in Crowley, Louisiana, commenced in December, 1964. It was filled with water and delivered by defendant to plaintiff in March, 1965. Plaintiff was billed, and he made final payment for it in May, 1965. During such period there was also constructed on the rear of the property a brick fence, it passing along and near the deep end of the pool; some subsurface drainage; and a pebblestone patio. All of these were built by different contractors.

Before the pool was completed a crack developed in its floor which was repaired. In July, 1965 another crack appeared in the bottom. The pool was drained later, and the crack was fixed in August, 1965.

Shortly thereafter cracks appeared in the coping around the top of the pool, mostly in the area of the skimmers on two sides thereof. Also it appeared to plaintiff then that the pool was losing water faster than it should, which belief he communicated to the defendant's representatives. He was told that it was the result of normal evaporation.

Finally, in September, 1965, plaintiff and his wife began seriously urging their dissatisfaction to the defendant's agents; and the former also employed the services of Mr. Harold Letz, a civil engineer who had designed (but had not constructed) the subsurface drainage, to determine the cause of the trouble.

Upon completion of his investigation Letz, on December 31, 1965, made a written report to plaintiff. In it he observed that there was visible evidence of an unstable condition in the pool and patio area, and that the pool was rising unevenly causing rapid deterioration of the concrete topping of the pool. The report further advised of the possibility that leakage from the pool itself might be the cause of the trouble. It strongly recommended that corrective measures be taken immediately, including 'extensive remedial work to stabalize the pool.' A copy of such report was transmitted to the defendant; and on January 19, 1966 Mr. D. S. Young, its president, replied to plaintiff Denying any leakage from the pool and suggesting that the problem resulted from surface drainage--from cracks in the patio and brick wall--for which his company was not responsible. And he proposed a meeting of all of the parties with their engineers and attorneys.

The meeting was held on January 31, 1966. Among those present were plaintiff, Mr. Young, Mr. Letz, Mr. Pat Cashman who had constructed the patio, and a Mr. Carlton Wood of Beaumont, Texas, who had been called in by the plaintiff as a swimming pool construction expert.

At this meeting Mr. Young Again denied that there were any defects in the pool. But, Mr. Wood, who at that time had made one examination of the pool and premises, Expressed the belief that the fault was with the pool in that there was leakage from the skimmers and over the top of the panels. He also thought that an overflow should be constructed, and agreed with Mr. Letz that the situation should be corrected as soon as possible to avoid further damage. He reiterated this belief, while testifying at the trial of this matter, saying that he felt 'reasonably sure' that the problem could have been arrested by certain alterations suggested by him. He 'estimated' that the cost of those repairs would run from $1000 to $1500. He further stated that he had so informed the plaintiff on January 31, 1966.

It is solely on the basis of this testimony of Mr. Wood that the defendant now contends that the plaintiff should have then (in February, 1966) expended the sum of $1000 to $1500 to make the repairs suggested so as to mitigate the damages; and that, because he failed to do so, his damages should have been limited to this amount.

In fact, it was on the showing thus made by defendant in its application that we granted certiorari to consider the question, particularly since the plea in mitigation had not been specifically mentioned in the opinion of the Court of Appeal. However, our examination of the record in its entirety has revealed facts and circumstances not brought to our attention when we considered the application. Viewing them in connection with the applicable law, we have concluded that there is no merit in the defendant's complaint.

Although there are very few cases from this court in regard thereto, there is no doubt but that the doctrine of mitigation of damages applies in this state, as well as in the common law jurisdictions. (In some of the latter it is referred to as the doctrine of avoidable consequences.) However, there are numerous decisions of our Courts of Appeal which deal with the principle, some applying it and some denying its applicability, depending on the particular facts of each case. Likewise, Louisiana Revised Civil Code Article 2323 forms the basis for such doctrine.

Perhaps the best exposition of the principle, insofar as it is pertinent to the instant matter, appears in 22 American Jurisprudence, 2d, pages 53, 61 and 282, verbo 'Damages' (Sections 32, 37 and 203). Therein it is stated: 'Section 32. Under the doctrine of avoidable consequences, The injured person need not make extraordinary efforts or do what is unreasonable or impracticable in his efforts to minimize damages; reasonable diligence and ordinary care are all that is required to allow full recovery of all damages caused by the defendant's wrongful activity. More completely stated, the consequences of an injury are recoverable where the injured party acts with such care and diligence as a man of Ordinary prudence would under the circumstances, and his efforts to minimize damages are determined by the rules of common sense, good faith, and fair dealing. What constitutes reasonable care depends upon the circumstances of the particular case, taking into consideration time, knowledge, opportunity, and expense. An injured person may recover to the full extent of his injury where he shows reasonable grounds for his failure to make an effort to lessen his damages. Thus, the repeated assurances of the defendant after an injury has begun that he will remedy the condition is sufficient justification for the plaintiff's failure to take steps to minimize loss, so long, at least, as there is ground for expecting that he will perform.

'Section 37. Following a breach, it is Sometimes possible for the nondefaulting party to minimize his damages by spending a sum of money. If the courts were to require this expenditure in Every case in which it turns out, as a matter of Hindsight, that such expenditure would have minimized the loss, courts would effectively be requiring...