WAWAK V. STEWART

ARK.] 1093
BILLY J. WAWAK V. ROBERT 0. STEWART ET AL
5-5016 449 S. W. 2d 922Opinion delivered February 2, 1970
[Rehearing denied March 9, 1970.]
1. VENDOR & PURCH ASER—CAVEAT EMPTOR IN SALES OF REALTY—MOD.
IFICATION OF RULE IN SALE OF NEW HOUSE BY BUILDER-VENDOR.
—An implied warranty of fitness may be recognized in the sale
of a new house by a seller who was also the builder.
2. COURTS—RULES OF DECISION—EFFECT UPON LEGISLATURE.—COUrt
decisions have no effect upon General Assembly's freedom to
change the law if it sees fit, but may f ocus legislative attention
upon a problem.
3. COURTS—RULES OF DECISION—APPLICATION .—Rule modifying doe-
trine of caveat emptor with respect to sale of a new house by
builder-vendor is made applicable only to the case at hand and
to causes of action arising after the decision becomes final.
4. CONTRACTS—CONSTRUCTION & OPERATION—EXCLUSION OF WARRAN•
TIES.—Language in offer and acceptance agreement, which did
not purport to exclude all warranties, applied only to defects
that might reasonably have been discovered in the course of
an inspection by a purchaser of average experience, but did not
exclude an implied warranty with respect to a defect which lay
beneath a concrete floor and could not have been discovered by
even a careful inspection.
5. DA MAGES—MITIGATION—DUTY OF INJURED PERSON:A plaintiff
must use reasonable care to mitigate his damages and if the
damages could have been avoided at reasonable expense the
measure of damages is the amount of such expenses.
16. DA MAGES—MITIGATION—REPARATION BY WRONGDOER.—Purehaser's
duty to mitigate damages held not to involve material neces-
sary to correct the basic defect.
7. CONTRACTS—VERDICT & FI NDINGS—WEIGHT & SUFFICIENCY OF EVI.•
DENCE.—Trial court's judgment that appellant was not entitled
to judgment against appellee who installed the duct work under
a subcontract held sufficiently supported by the proof.
8. APPEAL & ERROR—VERDICT & FINDINGS—WEIGHT & SUFFICIENCY OF
EvIDENCE.—Recovery upon appellees' cross appeal denied under
the rule that the verdict need not correspond in amount to the
proof adduced by either party.
Appeal from Pulaski Circuit Court, Second Divi-
sion, Warren Wood, Judge; modified and affirmed.
Tanner & Wallace, for appellant.
1094 WAWAK v. STEWART [247
U. A. Gentry and Wright, Lindsey & Jennings, for
appellees.
Stubblefield & Matthews and Joe Purcell, Attorney
General; Don Langston, Mike Wilson and Milton Lue-
ken, Asst. Attys. Gen., Amici Curiae.
GEORGE ROSE SMITH, Justice. The defendant-appel-
lant Wawak, a house builder, bought a lot in North
Little Rock in the course of his business, built a house
on it, and sold it to the appellees Stewart for $28,500.
The heating and air-conditioning ductwork had been em-
bedded in the ground before the concrete-slab floor was
poured above that ductwork. Some months after the
Stewarts moved into the house a serious defect mani-
fested itself, in that heavy rains caused water and parti-
cles of fill to seep into the ducts and thence through
the floor vents into the interior of the house, with conse-
quent damage that need not be described at the moment.
The Stewarts brought this action for damages. The
great question in the case, overshadowing all other is-
sues, is whether there is any implied warranty in a
contract by which the builder-vendor of a new house
sells it to its first purchaser. The trial court sustained
the theory of implied warranty and awarded the Stew-
arts damages of $1,309.
The trial court was right. Twenty years ago one
could hardly find any American decision recognizing
the existence of an implied warranty in a routine sale
of a new dwelling. Both the rapidity and the unanimity
with which the courts have recently moved away from
the harsh doctrine of caveat emptor in the sale of new
houses are amazing, for the law has not traditionally
progressed with such speed.
Yet there is nothing really surprising in the mod-
ern trend. The contrast between the rules of law ap-
plicable to the sale of personal property and those ap-
ARR.] WAWAK V. STEWART 1095
plicable to the sale of real property was so great as to
be indefensible. One who bought a chattel as simple as
a walking stick or a kitchen mop was entitled to get
his money back if the article was not of merchantable
quality. But the purchaser of a $50,000 home ordinarily
had no remedy even if the foundation proved to be so
defective that tbe structure collapsed into a heap of
rubble.
Several law review articles, of which the earliest
was published in 1952, forecast the new developments.
Their titles suggest their contents : Dunham, Vendor's
Obligation as to Fitness of Land For a Particular Pur-
pose, 37 Minn. L. Rev. 108 (1952) ; Bearman, Caveat
Emptor in Sales of Realty—Recent Assaults Upon the
Rule, 14 Vanderbilt L. Rev. 541 (1961) ; Haskell, The
Case For an Implied Warranty of Quality in Sales of
Real Property, 53 Georgetown L. Jour. 633 (1965) ;
Roberts, The Case of the Unwary Home Buyer : The
Housing Merchant Did It, 52 Cornell L. Q. 835 (1967).
In 1963 a new edition of Williston's Contracts added
its weight to the movement, pointing -out a practical
advantage in the new point of view : "It would be much
better if this enlightened approach were generally
adopted with respect to the sale of new houses for it
would tend to discourage much of the sloppy work and
jerry-building that has become perceptible over the
years." Williston, Contracts, § 926A (3d ed. 1963).
In the past decade six states have recognized an
implied warranty—of inhabitability, sound workman-
ship, or proper construction—in the sale of new houses
by vendors who also built the structures. Carpenter v.
Donohoe, 154 Colo. 78, 388 P. 2d 399 (1964) ; Bethlahmy
v. Bechtel, 91 Idaho 55, 415 P. 2d 698 (1966) ; Schipper
v. Levitt & Sons, 44 N. J. 70, 207 A. 2d 314 (1965) ;
Waggoner v. Midwestern Dev. Co., S. D., 154 N. W. 2d
803 (1967) ; Humbqr v. Morton, Texas, 426 S..W. 2d
554, 25 A. L. R. 3d 372 (1968) ; House v. Thornton,
Wash., 457 P. 2d 199 (1969). The near unanimity of the
1096 WAWAK V. STEWART [247
nimity of the judges in those cases is noteworthy. Of
the 36 justices who made up the six appellate courts,
the only dissent noted was that of Justice Griffin in the
Texas case, who dissented without opinion.
A few excerpts from those recent opinions will il-
lustrate what seems certain to be the accepted rule of
the future. In the Schipper case the New Jersey court
had this to say :
The law should be based on current concepts of
what is right and just and the judiciary should be
alert to the never-ending need for keeping its com-
mon law principles abreast of the times. Ancient
distinctions which make no sense in today's society
and tend to discredit the law should be readily re-
jected. .. . We consider that there are no meaningful
distinctions between Levitt's [a large-scale builder-
seller] mass production and sale of homes and the
mass production and sale of automobiles and that
the pertinent overriding considerations are the
same.
•
Caveat emptor developed when the buyer and seller
were in an equal bargaining position and they could
readily be expected to protect themselves in the
deed. Buyers of mass produced development homes
are not on an equal footing with the builder vendors
and are no more able to protect themselves in the
deed than are automobile purchasers in a position
to protect themselves in the bill of sale. Levitt ex-
presses the fear of "uncertainty and chaos" if re-
sponsibility for defective construction is continued
after the builder vendor's delivery of the deed and
its loss of control of the premises, but we fail to
see why this should be anticipated or why it should
materialize any more than in the products liability
field where there has been no such result.
ARK.] WAWAK V. STEWART 1097
A similar point of view was expressed in the House
case by the Washington Supreme Court:
As between vendor and purchaser, the builder-ven-
dors, even though exercising reasonable care to
construct a sound building, had by far the better
opportunity to examine the stability of the site and
to determine the kind of foundation to install. Al-
though hindsight, it is frequently said, is 20-20 and
defendants used reasonable prudence in selecting
the site and designing and constructing the building,
their position throughout the process of selection,
planning and construction was markedly superior
to that of their first purchaser-occupant. To borrow
an idea from equity, of the innocent parties who
suffered, it was the builder-vendor who made the
harm possible. If there is a comparative standard
of innocence, as well as of culpability, the defend-
ants who built and sold the house were less innocent
and more culpable than the wholly innocent and
unsuspecting buyer. Thus, the old rule of caveat
emptor has little relevance to the sale of a brand-
new house by a vendor-builder to a first buyer for
purposes of occupancy.
We apprehend it to be the rule that, when a vendor-
builder sells a new house to its first intended oc-
cupant, he impliedly warrants that the foundations
supp orting it are firm and secure and that the house
is structurally safe for the buyer's intended pur-
pose of living in it. Current literature on the sub-
ject overwhelmingly supports this idea of an im-
pl ied warranty of fitness in the sale of new houses.
The Su preme Court of Texas joined in the wide-
spread criticism of the doctrine of caveat emptor in the
Humber opinion:
If at one time in Texas the rule of caveat emptor
had application to the sale of a new house by a
vendor-builder, that time is now past. The decisions
1098 WAWAK V. STEWART [247
and legal writings herein referred to afford numer-
ous examples and situations illustrating the harsh-
ness and injustice of the rule when applied to the
sale of new houses by a builder-vendor, and we need
not repeat them here. Obviously, the ordinary pur-
chaser is not in a position to ascertain when there
is a defect in a chimney flue, or vent of a heating
apparatus, or whether the plumbing work covered
by a concrete slab foundation is faulty.
•
The caveat emptor rule as applied to new houses
is an anachronism patently out of harmony with
modern home buying practices. It does a disservice
not only to the ordinary prudent purchaser but to
the industry itself by lending encouragement to the
unscrupulous, fly-by-night operator and purveyor of
shoddy work.
In 1957 an intermediate New Jersey court refused
to recognize implied warranties in the sale of realty.
Levy v. C. Young Constr. Co., 46 N. J. Super. 293, 134
A. 2d 717, affirmed on other grounds 26 N. J. 330, 139
A. 2d 738 (1958). That case is no longer the law in
New Jersey, owing to the New Jer gPy Supreme Court's
decision in the Schipper case, but we should add that the
intermediate court's arguments were fully answered by
the Supreme Court of Idaho in Bethlahmy v. Bechtel,
supra:The reasoning of the majority in the New Jersey
decision that chaotic uncertainty would pervade the
entire real estate field if sellers were subject to
liability for implied warranty of fitness, and that
the rules of caveat emptor would work no harshness
on purchasers of real estate, is fallacious, unrealis-
tic and unjust when applied to the facts of the case
before us. In the situation here the imposition of
an implied warranty of fitness would work no more
ARK.] WAWAK v. STEWART 1099
uncertainty or chaos than the warranties commonly
applied in sales of personal property. Likewise, the
statement by the New Jersey court that the plain-
tiffs had an opportunity to protect themselves by
exacting warranties in the contract and reserving
them in the deed, has no application to the facts
of the case at bar. A buyer who has no knowledge,
notice, or warning of defects, is in no position to
exact specific warranties. Any written warranty de-
manded in such a case would necessarily be so gen-
eral in terms as to be difficult to enforce. It would
be like the verbal warranty by defendant in this
case, that the house would be a "quality home."
As might be expected, we have been presented with
the timeworn, threadbare argument that a court is legis-
lating whenever it modifies common-law rules to achieve
justice in the light of modern economic and technologi-
cal advances. That same argument was doubtless made
in a famous case that parallels this one : MacPherson v.
Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, Ann.
Cas. 1916C, 440, L. R. A. 1916F, 696 (1916). There the
court, with respect to the sale of automobiles, abolished
a requirement of privity of contract that was just as
firmly embedded in the common law as is the rule that
we are now re-examining. Yet the doctrine of the Mac-
Pherson case is now accepted as commonplace through-
out the nation. We have no doubt that the modification
of the rule of caveat emptor that we are now consider-
ing will be accepted with like unanimity within a few
years.
After the case at bar had been submitted to the
court we invited the filing of amici curiae briefs, to
avoid the possibility that persuasive arguments might
be overlooked. The only brief that urges adherence to
the old rule was filed by counsel for the Arkansas Home
Builders Association.
The AHBA brief makes one point that merits corn-
1100 WAWAR V. STEWART [247
ment. Counsel state that the AHBA "recognizes the
need for the imposition of a warranty upon new con-
struction." To that end the Association included a one-
year warranty requirement in a bill that it sponsored,
unsuccessfully, in the 1967 and 1969 sessions of the leg-
islature. The main purpose of the bill, however, was to
regulate the homebuilding industry by the creation of
a governing board and the imposition of licensing re-
quirements upon those engaged in the business.
We are not impressed by the AHBA's suggestion
that we await legislative action, even though the Asso-
ciation concedes that some form of warranty is needed.
To begin with, the General Assembly's repeated refusal
to enact the proposed law hardly gives assurance that
it will be passed in the near future. Furthermore, what-
ever decision we reach in this case can have no effect
upon the General Assembly's freedom to change the law
as it sees fit. To the contrary, a judicial decision may
focus legislative attention upon the problem. See, for
example, Act 165 of 1969, which was a prompt legisla-
tive reaction to our decision in Parish v. Pitts, 244 Ark.
1239, 429 S. W. 2d 45 (1968).
To sum up, upon the facts before us in the case at
bar we have no hesitancy in adopting the modern rule
by which an implied warranty may be recognized in the
sale of a new house by a seller who was also the builder.
That rule, however, is a departure from our earlier
cases; so, to avoid injustice, we adhere to the doctrine
announced in Parish v. Pitts, supra, by which the new
rule is made applicable only to the case at hand and to
causes of action arising after this decision becomes final.
There are three subordinate points that require dis-
cussion. First, Wawak insists that all warranties, ex-
press or implied, were negatived by this paragraph in
the offer-and-acceptance agreement that preceded the
execution of a warranty deed when the sale was con-
summated:
ARK.] WAWAK V. STEWART 1101
Buyer certifies that he has inspected the property
and he is not relying upon any warranties, repre-
sentations or statements of the Agent or Seller as
to age or physical condition of improvements.
Even if we assume that the preliminary contract
was not merged in the warranty deed, we think it plain
that the quoted paragraph did not exclude an implied
warranty with respect to the particular defect now in
question, which lay beneath the concrete floor and could
not possibly have been discovered by even the most care-
ful inspection. The quoted paragraph does not purport
to exclude all warranties. It merely states that the buyer
has inspected the property and is not relying on any
warranties as to the age or physical condition of the
improvements. Construing the printed contract against
the seller, who evidently prepared it, we hold that the
clause applies only to defects that might reasonably
have been discovered in the course of an inspection made
by a purchaser of average experience in such matters.
Secondly, the trial court's judgment for $1,309 was
composed of the following items of damage to the house
and its furnishings, none of which the Stewarts had yet
paid:
To clean rug $ 75.00
To paint house (interior) 235.00
To clean furniture 22.00
To replace lamp shades 35.00
To clean duct system 200.00
To replace draperies 300.00
Minor repairs 22.00
Drain tile to correct leakage 420.00
$1,309.00
Wawak insists that the recovery of the foregoing items
is barred bv the rule that a plaintif f must use reason-
able care to mitigate his damages and that if the dam-
ages could have been avoided at reasonable expense then
1102 WAWAR V. STEWART [247
the measure 'of damages is the amount of such expense.
Curtner v. Bank of Jonesboro, 175 Ark. 539, 299 S. W.
994 (1927) ; Louisville, N. 0. & T. R. R. v. Jackson,
123 Ark. 1, 184 S. W. 450, Ann. Cas. 1918A, 604 (1916) ;
Young v. Berman, 96 Ark. 78, 131 S. W. 62, 34 L. R. A.
(n. s.) 977 (1910).
The pertinent facts are these : The subterranean
ductwork radiates from a metal chamber or plenum,
which sits under the heating and air-conditioning units.
When Wawak and his ductwork subcontractor, Plum-
mer, were first notified by Stewart of the seepage, they
siphoned off the water through the plenum. They next
installed drain tile and gravel along two sides of the
house, but those measures fai l ed to correct the trouble.
In the meantime Stewart bought a sump pump at a
cost of $12.50. Whenever rains caused seepage in the
ductwork Stewart would place his pump in the plenum,
about two hours after the water had accumulated, and
pump the duct system dry. Under that procedure some
of the seepage got into the house and caused most of
the damage that we have itemized above.
Soon after the difficulty first arose Wawak and
Plummer proposed the installation of an automatic
sump pump, which cost $76 or $78. Their plan was to
dig out the floor of the plenum so that the automatic
pump would be below the level of the ducts. Whenever
the water at the site of the pump rose to a depth of
three quarters of an inch the pump would start auto-
matically and pump out the water. Thus the water would
never rise high enough to overflow the floor vents
and damage the interior of the house. Wawak and Plum-
mer do not contend that their plan would have corrected
the subterranean defect. From Wawak's testimony : "I
figured if we could get the pump in there to pump it
out, then we could continue to try to find out where
[the water] was coming from. It wasn't our intention
to just leave it." Wawak stated that when he offered
to put in the automatic pump there was no damage to
ARK.] WAWAIC V. STEWART 1103
the house except some staining of the draperies, which
were cleaned at Wawak's expense.
Stewart refused to allow the automatic pump to be
installed, insisting that he wanted to know where the
water was coming from and would accept nothing less.
When the proffer of the pump was refused, Wawak and
Plummer abandoned their efforts to correct the trouble.
Thereafter Stewart used his own pump in the manner
that we have described, with attendant damage to the
house and its furnishings. A period of two years or
more elapsed before this action was finally brought.
In the main Wawak is correct in his argument that
the Stewarts should have mitigated their damages by
permitting the installation of the automatic pump. On
the record made below it is an undisputed fact that
such a pump would have 'avoided practically all the
itemized damages that were allowed by the trial court.
The pump, however, would not have corrected the
basic defect, nor does Wawak so contend. Stewart testi-
fied without contradiction and without objection that a
man named Gordon could remedy the defect by install-
ing drain tile along the remaining two sides of the house
at a cost of $425. That corrective measure would not
have been rendered unnecessary by the installation of
the automatic pump ; so the Stewarts' duty to mitigate
their damages does not involve that item. The amount
of the Stewarts' judgment will therefore be reduced to
$420—the amount allowed by the trial court for the one
item of damage that we find to be recoverable.
Thirdly, Wawak argues that he is entitled to judg-
ment over against the appellee Plummer, who installed
the ductwork under a subcontract with Wawak. It can-
not be said as a matter of law, however, that Plummer
was at fault, because the slab floor above the ducts was
poured by another subcontractor. Upon this point the
trial court's judgment is sufficiently supported by the
proof.
1104 WAWAK V. STEWART [247
Finally, what we have said also disposes of the ap-
pellees' cross appeal, by which they contend that the
court erred in not allowing them the full amount of
some of their itemized claims. In any event recovery
upon the cross appeal would have to be denied under
the rule established in Fulbright v. Phipps, 176 Ark.
356, 3 S. W. 2d 49 (1928), and the cases that have fol-
lowed it, holding that the verdict need not correspond
in amount to the proof adduced by either party.
The judgment as modified is affirmed.
HARRIS, C. J., and FOGLEMAN and BYRD, JJ., dissent.
JOHN A. FOGLEMAN, Justice, dissenting in part, con-
curring in part. In its approach to adoption of the mod-
ern rule, the majority has overlooked one important
step in establishing a liability for breach of an implied
warranty. The first step toward the application of the
rule adopted is the necessity for evidence establishing
a breach. The burden is on one asserting such a breach
to prove it. Hydrotex Industries v. Sharp, 212 Ark. 886,
208 S. W. 2d 183; Highsmith Brothers v. Hammonds,
99, Ark. 400, 138 S. W. 635 ; American Standard Jewelry
Co. v. R. J. Hill & Son, 90 Ark. 78, 117 S. W. 781 ;
Elmore v. Booth, 83 Ark. 47, 102 S. W. 393.
The rules regarding this burden and its application
to the imposition of implied warranties to real estate
transactions involving the sale of dwelling houses are
clearly recognized in cases relied upon by the majority.
In Bethlahmy v. Bechtel, 91 Idaho 55, 415 P. 2d 698(1966), that court said:
"The implied warranty of fitness does not impose
upon the builder an obligation to deliver a perfect
house. No house is built without defects, and defects
susceptible of remedy ordinarily would not warrant
rescission. But major defects which render the
house unfit for habitation, and which are not readily
remediable, entitle the buyer to rescission and resti-
ARK.] WAWAK V. STEWART 1105
tution. The builder-vendor's legitimate interests are
protected by the rule which casts the burden upon
the purchaser to establish the facts which give rise
to the implied warranty of fitness, and its breach.
See Schipper v. Levitt & Sons, Inc., supra."
In Bechtel the evidence was found sufficient to pre-
sent an issue as to breach. The house in question was
built over what had been an open irrigation ditch. The
builder laid a water conduit in a trench dug along the
course of the ditch and covered the ditch with earth.
The conduit consisted of 10-inch drain tile in three-foot
sections butted together without any water seal in the
joints. The house was located so that this conduit was
under the concrete floor of an attached garage, seven
to nine feet north of the north wall of the house and
two to three feet above the floor level of adjacent base-
ment rooms. After the irrigation season opened, water
naturally seeped in around the edges of the basement
rooms and spread over the tiled floors. The soil settled
away from the garage floor from two to twelve inches
and was wet. A crack developed in the garage floor. It
was the builder's opinion that the water came from the
tiled ditch under the garage. Efforts were made by the
builder to remedy the situation by re-routing the ditch
and digging gravel-filled trenches. A hydrologist testi-
fied that, in his opinion, the water originally came from
the covered tile and thereafter from a "perched" water
table established by irrigation water accumulating above
a hardpan. He also stated that the concrete in the base-
ment walls and floor could have been made waterproof
by proper mixture and care in construction. The dam-
age shown was great enough that some rooms in the
house had to be vacated and bricks were placed under
furniture to prevent water damage thereto. Eventually
the buyers moved out of the house because of the con-
tinued water seepage. The testimony of the hydrologist
and other witnesses indicated that the condition would
recur every irrigation season.
In Schipper v. Levitt & Sons, Inc., 44 N. J. 70, 207
1106 WAWAR v. STEWART [247
A. 2d 314 (1965), cited by the majority and in the Bech-
tel case, the court restated its position that it was nec-
essary that there be sufficient evidence to prove negli-
gent or defective construction. The court called atten-
tion to the fact that a former case had been affirmed
because of the want of evidentiary support for a fact-
finding of negligent or defective construction. On this
subject that court said:
"Levitt contends that imposition of warranty or
strict liability principles on developers would make
them 'virtual insurers of the safety of all who
thereafter come upon the premises.' That is not at
all so, for the injured party would clearly have the
burden of establishing that the house was defective
when constructed and sold and that the defect prox-
imately caused the inju-ry. In determining whether
the house Nails defective, the test admittedly Would
be reasonableness rather than perfection. As was
pointed out in- Courtois v., General Motors Corp.,
37 N. J. 525, 182 A. 2d 545 (1962), the comparable
warranty, of merchantability in the sale of goods
means only that the article is reasonably fit for the
purpose for which it is sold and does not imply
'absolute perfection.' 37 N. J., at p. 543, 182 A. 2d
545. See Jakubowski v. Minnesota Mining and Man-
ufacturing, 42 N. J. 177, 185, 199 A. 2d 826 . (1964).
And as Professor Noel has indicated, though the
imposition of warranty or strict liability principles
to a ease of defective design, as alleged against
Levitt here, would render unneceSsary any allega-
tion Of negligence as such, it would not remove the
plaintiffs' burden of establishing that the design
was 'unreasonably dangerous' and proximately
ennsed the injury. Noel, supra, -71 Yale L. J., at pp.
877-878; see also Prosser, 'The Assault Upon the
Citadel (Strict Liability to the - Consumer),' 69 Yale
L. J. 1099, 1114 (1960).
• * • We note, however, as indicated earlier in this
ARK.] WAWAK V. STEWART 1107
opinion, that even under implied warranty or strict
liability principles, the plaintiffs' burden still re-
mains of establishing to the jury's satisfaction from
all the circumstances that the design was unreason-
ably dangerous and proximately caused the injury.
See Noel, supra, 71 Yale L. J., at pp. 877-878; see
also Prosser, supra, 69. Yale L. J., at p. 1114."
There the testimony showed that the builder had de-
liberately ignored cautions of the manufacturer relating
to the necessity for controls on a hot water heater so
that the water at the taps in the house would not be ex-
cessively hot. There was expert testimony by an engi-
neer who had been employed by the builder and who
was responsible for the design of hot water systems in
houses built by this builder. He recognized that the tem-
perature of the water from the hot water tap in the
bathroom sink would be excessively high for domestic
use and that the manufacturer had recommended con-
trol by a mixing valve outside the boiler.
In the other cases cited by the majority, there was
direct evidence of negligent or defective construction.
It is the contention of the appellant that appellee Stew-
art has failed to meet his burden of proof b y an affirm-
ative showing that appellant breached this implied war-
ranty and that the house was not constructed in a good
workmanlike manner. He argues that in effect the rul-
ing of the lower court is that, without any proof or evi-
dence, the house was not constructed in a good work-,
manlike manner and, withopt any proof whatever as to
the cause of the problem, appellees should recover sim-
ply because they bought a new house and subsequently
a water situation developed. Because T agree with ap-
pellant and both the trial court and this court seem to
have ignored the factual situation. I deem it ap propri-
ate to state what the record reveals as undisputed evi-
dence.
Appellant employed an experienced plumbing and
1108 WAWAK V. STEWART [247
heating contractor to design, lay out and install the
heating and air conditioning system. This contractor
testified about the installation and described the steps
in detail, stating that the work was done in compliance
with accepted standards. The house was completed al-
most exactly one year before its sale to Stewart. The
completion date enabled appellant to show the house in
the Little Rock-North Little Rock Parade of Homes in
September 1963. From this time on, appellant operated
the heating and air conditioning system as a matter of
preventive maintenance and experienced none of the
difficulties about which the Stewarts later complained.
The house has been occupied by the Stewarts . from the
time of their purchase on August 1, 1964. In March or
April 1965, water and fill materials first seeped through
the ducts and floor registers of the heating and air con-
ditioning system into various rooms of the house. It was
stipulated that appellant had no knowledge or notice of
any defects until report was made by Stewart. The con-
struction of "French drains" by Wawak along the front
and one side of the house did not correct the situation.
There is still a water problem every time it rains. The
Stewarts admitted that they had been unable to ascertain
the cause of the difficulty. Appellant testified that he
had no idea what was causing the trouble. No one has
determined the source. Plummer testified that no one
knew how the water gets into the system, but that ac-
cumulated water will work through concrete. Wawak
learned that there were houses in the Lakewood area
in which the same problem had been remedied by the
installation of a submergible pump of the type he of-
fered to install in the Stewart house. Plummer had cor-
rected a similar situation in a house on Waterside Drive
by the same means. Mr. Gordon, an engineer employed
by Stewart, did not know the source of the water prob-
lem, but assured Stewart that the problem could be
solved by putting "French drains" on the other two
sides of his house. Stewart had done some digging
around the sides of the house to plant shrubbery and
ARK.] WAWAIC V. STEWART 1109
flowers. He also dug two large holes within 20 feet of
the house in which to plant pecan trees.
This evidence simply does not show the breach of
any implied warranty. It seems significant to me that
the Stewarts do not undertake to answer the argument
of appellant in this regard in any way. In considering
the question of evidence appellee Plummer appropriate-
ly argues that the period during which the system had
operated satisfactorily was long enough that normal us-
age would bring any problems in construction to light.
He calls our attention to the fact that the author of the
article in the Vanderbilt Law Review, cited in the ma-
jority opinion, suggested a model act as one of the rem-
edies for problems arising from the adoption of the
implied warranty doctrine. He recommended a one-year
statute of limitations and commented:
"The statute of limitations in section 5 is short, only
one year. The act is primarily designed to protect
home buyers from structural defects and improper
workmanship in newly constructed homes. One year
represents a full seasonal cycle and should bring
out all defects in existence at the time of the deed,
or in case of an installment purchase, at the time
the vendee took possession. Defects which masifest
themselves later are much more likely due to ordi-
nary wear asd tear or the elements, and the one
year limitation is designed to prevent the jury's
speculating on this amd arriving at unreasonable
results." (Emphasis mine.)
I do not believe that the court intends to apply res
ipsa loquitur to such cases, but I fear that this is the
effect of the action taken. The doctrine has no applica-
tion to an action for breach of implied warranty. That
is an action on contract. Kapp v. Bob Sullivas Chevrolet
Co., 232 Ark. 266, 335 S. W. 2d 819. We have recognized
that even in a negligence action the doctrine does not
apply unless there is first proof of the elements neces-
1110 WAWAK V. STEWART [247
sary to bring it into play, that the inference arising from
the rule does not supply the foundation facts and that
its application to a particular set of facts cannot be
based upon speculation. Ford Motor Co. v. Fish, 232
Ark. 270, 335 S. W. 2d 713. It was there recognized that
it must be shown that the cause of the injury is an
agency or instrumentality within the defendant's exclu-
sive control and that the cause is not due to any volun-
tary action or contribution on the part of the plaintiff.
These elements of proof are lacking here. In the Fish
case, we relied on the logic of a quotation from Haas v.
Buick Motor Division, 20 Ill. App. 2d 448, 156 N. E. 2d
263, 266 (1959), as follows :
" The mere fact that an occurrence resulting in
damage to property has happened does not author-
ize any presumption or inference that the defend-
ant was at fault. * * * (Citations omitted.) The
mere fact that a fire evidently occurred here, re-
sulting in damage to the property, does not author-
ize any presumption or inference that the defendant
was responsible therefor,—the burden was on the
plaintiff to prove, among other things, that there
was some material defect in materials or workman-
ship. * * * This is not a case for the application
of some doctrine analogous to that of res ipsa
loquitur."
An attempt to apply the res ipsa loquitur doctrine
to an action for breach of implied warranty was rejected
in Ford Motor Co. v. Tritt, 244 Ark. 883, 430 S. W. 2d
778. There we said that 16,000-mile use of an automobile
wheel from December 1962 to March 1964, even without
any evidence or use which might affect the condition
of the wheel, made it almost imperative that expert tes-
timony be used to show that a defect in the wheel was
a manufacturing defect.
It is clear to me that the Stewarts failed to meet
their burden of proof and that the judgment should he
reversed as to them. To say the least the majority has
ARK.] WAWAK V. STEWART 1111
chosen a rickety vehicle upon which to transport a major
industry into a new legal territory, the topography and
boundaries of which have not even been explored, much
less charted.
It is particularly important that the doctrine of
stare decisis control in commercial cases where contract-
ual and property rights have grown up and business
practices developed in reliance thereon. Stability and
uniformity of the law in these fields is more important
than technical correctness, because day-to-day contract-
ing and dealing must be conducted upon the assump-
tion that yesterday's precedent will govern tomorrow's
disputes.
I agree with my brother Byrd that such a step as
this was more appropriately one for legislative action.
I take it to be conceded that the rule . of caveat
emptor heretofore applied in this field is one of com-
mon law. I cannot refrain from repeating the observa-
tion of the Chief Justice in his dissenting opinion in
Parish v. Pitts, 244 Ark. 1239, 1255, 429 S. W. 2d 45,
that the very first section appearing in our current di-
gest of statutes provides that the common law of Eng-
land of a general nature and not inconsistent with the
constitution and laws of this nation, or this state, shall
be the rule of decision in this state iinlees altered or
repealed by the General Assembly of this state. Ark.
Stat. Ann § 1-101 (Repl. 1956). Nor can I abstain from
repeating an interrogatory propounded in my dissent-
ing opinion in that case, i. e., "If 'Ark. Stat. Ann. §
1-101 (Repl. 1956) does not mean that this law can be
altered or repealed by the General Assembly, only, then,
I ask, what does it mean?" I have heard no satisfactory
answer.
Merely to label an argument timeworn and thread-
bare does not make it so. Yet, being threadbare means
only that the nap is worn, not that the fabric is pierced
or the warp or woof weakened. To be timeworn is not
1112 WAWAK V. STEWART [247
necessarily to be dilapidated. The wisdom acquired from
experience of the ages is also ancient. I do not deem
it the function of the judiciary to disregard such a stat-
ute merely because we think it is not abreast of the times
or, in the modern lingo, not relevant. This is a peculiar
function of tbe legislative branch.
Some of the courts which have adopted the "en-
lightened" approach to this problem have not had to
hurdle the obstacle posed by § 1-101. For example, the
Washington statute makes the common law the rule of
decision so far as it is not incompatible with the institu-
tions and condition of society in the state. In New Jer-
sey, the 1948 constitution now in effect only provides
that all law then in force remain in force until super-
seded, altered or repealed by the constitution or other-
wise. New Jersey Constitution, Art. 11 § 1 Par. 3. This
provision superseded an 1844 constitutional provision
as to common law similar to our statute. Clearly, the
common law rules could be superseded by judicial action
in New Jersey.
Courts of other states simply by-pass the barrier,
without mentioning it. Still others go traipsing off after
decisions in states not faced with this obstacle, without
noticing their own limitations. See, e. g., Bethlahmy v.
Bechtel, 91 Idaho 55, 415 P. 2d 698 (1966), relying, at
least in part, upon Schipper v. Levitt & Sons, Inc., 44
N. J. 70, 207 A. 2d 314 (1965).
I humbly submit that no rule of English common
law was altered in MacPherson v. Buick Motor Co.,
217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C 440,
L. R. A. 1916F 696 (1916). As a matter of fact, Mr.
Justice Cardozo reviews the English cases and finds
some support for his result. He also found support in
earlier cases in New York.
I fully recognize the necessity for growth and de-
velopment of the law to fit the needs of our society in
ARK.] WAWAK V. STEWART 1113
the present generation without rigid adherence to prin-
ciples satisfactory under conditions existing in a past
generation. I do not recognize the power of the courts
to invade the province of the legislative department in
order to "update" the law.
To illustrate the necessity for legislative action to
engraft this new doctrine upon our law, I point out that
numerous sections of our commercial code are devoted
to defining and circumscribing implied warranties in
personal property transactions and in stating and lim-
iting remedies for breaches. Each of these required a
separate legislative decision at some point in the proc-
ess of drafting and adoption.'
The alertness of our General Assembly to desira-
bility for modernization of our law is aptly demonstrat-
ed by its adoption of the UCC long before it was adopt-
ed by most of our states. While the decision here neces-
sitates legislative action to undo or limit the action here
taken, I deplore the willingness of the court to hand a
virtual mandate to the General Assembly to act in a
field in which it has clearly indicated that it was not
ready to legislate. While I agree that the law should
require some type of warranty in situations like that
treated by the majority, the investigative powers of the
legislature are conducive to a thorough examination of
all facets of the problem and are peculiarly suited to a
clear definition of the extent and application of such a
warranty. We can only meet the multiple questions
which will now arise one by one on a case by case basi s.
The legislative branch can anticipate most of them.
I concur in the affirmance of the judgment in favor
or Plummer
1 For example, see the following sections in Arkansas Statutes
Annotated, Title 85: definitions, 1-201, 2-103, 2-106, 2-312, 2-314
& 315; rules bearing on rights and remedies, 2-210, 2-301, 2-302,
2-317 & 318, 2-510, 2-515, 2-607 & 608, 2-703, 2-706, 2-711--715,
2-717-721, 2-723, 2-725, 9-113, 9-206, 9-318; exclusion or modifica-
tion, 2-316 (Add. 1961).
1114 .WAWAK V. STEWART [247
HARRIS, C. J., joins in this opinion.
CONLEY BYRD, Justice, dissenting. I do not believe
that the people of this State elected me to Legislate on
the subject of implied warranties in the sale of real
estate. The present Constitution of the State of Arkan-
sas and also the proposed Constitution places such mat-
ters before the General Assembly and I think for good
reason. When this Matter comes before the General As-
sembly, interested parties, other than the parties to this
litigation, with intimate knowledge of the problems in-
volved in placing an implied warranty of fitness upon
a house will have an opportunity to be heard. However,
today's decision will just as surely affect the method
and cost of doing business of persons not a party to this
litigation as would such action by the General Assem-
bly, but our rules of procedure do not permit such par-
ties to even be heard on a petition for rehearing.
The personal property warranties, including those
involved in the purchase of a shoe string, have been the
subject of much thought before legislation regulating
the same was enacted, see Uniform Sales Act and the
Uniform Commercial Code, Act 185 of 1961. Further-
more under the Uniform Commercial Code, Ark. Stat.
Ann. § 85-2-316 (3) (a) (Add. 1961), even a blind pur-
chaser of a shoe string could not recover upon an im-
plied warranty of fitness if he bought the shoe string
under a contract stating that he was not relying upon
any warranties made by the seller. Ark. Stat. Ann. §
85-2-316 provides :
" (2) . . . Language to exclude all implied war-
ranties of fitness is sufficient if it states, for ex-
ample, that 'There are no warranties which extend
beyond the description on the face hereof.'
" (3) Notwithstanding subsection (2)
" (a) unless the circumstances indicate otherwise,
ARK.] 1115
all implied warranties are excluded by expressions
like 'as is,"with all faults' or other language which
in common understanding calls the buyer's atten-
tion to the exclusion of warranties and makes plain
that there is no implied warranty ; and
" (c) an implied warranty can also be excluded or
modified by course of dealing or course of perform-
ance or usage of trade."
Therefore even if we applied the statutory warran-
ty law applicable to personal property, the implied war-
ranty which the majority here finds would be excluded
not only by the language- in the sales contract but also
by the usage of trade under subsection (3) (e) of Sec-
tion 85-2-316 of the Commercial Code.
For these reasons, I respectfully dissent.