author: George Rose Smith, Justice. John A. Fogleman, Justice, Conley Byrd, Justice,

text:
    Billy J. WAWAK v. Robert O. STEWART et al
    5-5016
    449 S. W. 2d 922
    Opinion delivered February 2, 1970
    [Rehearing denied March 9, 1970.]

      Tanner & Wallace, for appellant.

      U. A. Gentry and Wright, Lindsey & Jennings, for appellees.

      Stubblefield & Matthews and Joe Purcell, Attorney General; Don Langston, Mike Wilson and Milton Lueken, Asst. Attys. Gen., Amici Curiae.

   George Rose Smith, Justice.

The defendant-appellant 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 embedded 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 manifested itself, in that heavy rains caused water and particles of fill to seep into the ducts and thence through the floor vents into the interior of the house, with consequent 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 issues, 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 modern trend. The contrast between the rules of law applicable to the sale of personal property and those applicable 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 the 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 Purpose, 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 workmanship, 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); Humber 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 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 illustrate what seems certain to be the accepted rule of the future. In the 8chipper 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 common 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 rejected. . . . 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 expresses the fear of “uncertainty and chaos” if responsibility 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.

A similar point of view was expressed in the House case hy the Washington Supreme Court:

As between vendor and purchaser, the builder-vendors, 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. Although 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 defendants 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 occupant, he impliedly warrants that the foundations supporting it are firm and secure and that the house is structurally safe for the buyer’s intended purpose of living in it. Current literature on the subject overwhelmingly supports this idea of an implied warranty of fitness in the sale of new houses.

The Supreme Court of Texas joined in the widespread 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 and legal writings herein referred to afford numerous examples and situations illustrating the harshness 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 purchaser 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 Jersey 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, unrealistic 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 ■uncertainty or chaos than the warranties commonly applied in sales of personal property. Likewise, the statement by the New Jersey court that the plaintiffs 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 demanded in such a case would necessarily be so general 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 legislating whenever it modifies common-law rules to achieve justice in the light of modern .economic and technological 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 MacPherson case is now accepted as commonplace throughout the nation. We have no doubt that the modification of the rule of caveat emptor that we are now considering 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 comment. Counsel state that the AHBA “recognizes the need for the imposition of a warranty upon new construction.” 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 legislature. 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 requirements upon those engaged in the business.

We are not impressed by the AHBA’s suggestion that we await legislative action, even though the Association 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, whatever 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 legislative 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 thé case at hand and to causes of action arising after this decision becomes final.

There are three subordinate points that require discussion. First, Wawak insists that all warranties, express 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 consummated :

Buyer certifies that he has inspected the property and he is not relying upon any warranties, representations 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 careful 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 by the rule that a plaintif f must use reasonable care to mitigate his damages and that if the damages could have been avoided at reasonable expense then 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. O. & 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, Plummer, 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 failed 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 automatically 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 Plummer 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 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 testified without contradiction and without objection that a man named Gordon could remedy the defect by installing 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 judgment over against the appellee Plummer, who installed the ductwork under a subcontract with Wawak. It cannot 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.

Finally, what we have said also disposes of the appellees’ 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 followed 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, concurring in part. In its approach to adoption of the modern 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 restitution. 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 present 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 basement 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 testified 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 basement walls and floor could have been made waterproof by proper mixture and care in construction. The damage 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 continued 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 A. 2d 314 (1965), cited by the majority and in the Bechtel case, the court restated its position that it was necessary that there be sufficient evidence to prove negligent or defective construction. The court called attention 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 proximately caused the injury. In determining whether the house was 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 Manufacturing, 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 case of defective design, as alleged against Levitt here, would render unnecessary any allegation of negligence as such, it would not remove the plaintiffs’ burden of establishing that the design was ‘unreasonably dangerous’ and proximately caused 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 (I960).
* * * We note, however, as indicated earlier in this opinion, that even under implied warranty or strict liability principles, the plaintiffs’ burden still remains of establishing to the jury’s satisfaction from all the circumstances that the design was unreasonably 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 deliberately 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 excessively hot. There was expert testimony by an engineer 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 temperature 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 control 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 Stewy art has failed to meet his burden of proof bv an affirmative showing that appellant breached this implied warranty and that the house was not constructed in a good workmanlike manner. He argues that in effect the ruling of the lower court is that, without any proof or evidence, the house was not constructed in a good workmanlike manner and, without any proof whatever as to the cause of the problem, appellees should recover simply because they bought a new house and subsequently a water situation developed. Because T agree with appellant and both the trial court and this court seem to have ignored the factual situation. I deem it aupropriate to state what the record reveals as undisputed evidence.

Appellant employed an experienced plumbing and 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 almost 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. Prom 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 conditioning 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 construction 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 accumulated 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 offered to install in the Stewart house. Plummer had corrected 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 problem, 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 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 appropriately argues that the period during which the system had operated satisfactorily was long enough that normal usage 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 majority opinion, suggested a model act as one of the remedies 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 manifest themselves later are mueh more likely due to ordinary wear and tear or the elements, and the one year limitation is designed to prevent the jury’s speculating on this and 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 application to an action for breach of implied warranty. That is an action on contract. Kapp v. Bob Sullivan 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 necessary 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 causé of the injury is an agency or instrumentality within the defendant’s exclusive control and that the cause is not due to any voluntary 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 authorize any presumption or inference that the defendant was at fault. * * * (Citations omitted.) The mere fact that a fire evidently occurred here, resulting in damage to the property, does not authorize 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 workmanship. * * * 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 testimony 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 be reversed as to them. To say the least the majority has 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 contractual 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 contracting and dealing must be conducted upon the assumption 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 common law. I cannot refrain from repeating the observation 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 digest of statutes provides that the common law of England 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 unless 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 dissenting 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 threadbare 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 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 statute merely because we think it is not abreast of the times or, in the modern lingo, not relevant. This is a peculiar function of the legislative branch.

Some of the courts which have adopted the “enlightened” 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 institutions and condition of society in the state. In New Jersey, the 1948 constitution now in effect only provides that all law then in force remain in force until superseded, altered or repealed by the constitution or otherwise. 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 laAV 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 development of the law to fit the needs of our society in the present generation without rigid adherence to principles 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 limiting remedies for breaches. Each of these required a separate legislative decision at some point in the process of drafting and adoption.

The alertness of our General Assembly to desirability for modernization of our law is aptly demonstrated by its adoption of the UGC long before it was adopted by most of our states. While the decision here necessitates 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 basis. The legislative branch can anticipate most of them.

I concur in the affirmance of the judgment in favor of: Plummer.

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 Arkansas and also the proposed Constitution places such matters before the General Assembly and I think for good reason. When this matter comes before the General Assembly, interested parties, other than the parties to this litigation, with intimate knowledge of the problems involved 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 Assembly, but our rules of procedure do not permit such parties 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. Furthermore under the Uniform Commercial Code, Ark. Stat. Ann. § 85-2-316 (3)(a) (Add. 1961), even a- blind purchaser of a shoe string could not recover upon an implied 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 warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’
“(3) Notwithstanding subsection (2)
“(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and
“(b) ...
“ (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.”

Therefore even if we applied the statutory warranty law applicable to personal property, the implied warranty 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 Section 85-2-316 of the Commercial Code.

For these reasons, I respectfully dissent.

      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 modification, 2-316 (Add. 1961).


source: Caselaw Access Project

author: Geobge Rose Smith, Justice.

license: Public Domain

text:
    Porter RODGERS et al v. SOUTHLAND RACING CORPORATION
    5-5148
    450 S. W. 2d 3
    Opinion delivered February 2, 1970
    [Rehearing denied March 9, 1970.]

      Joe Purcell, Attorney General; Don Langston, and Mike Wilson, Asst. Attys. Gen., for appellants.

      Wright, Lindsey & Jennings, for appellee.
   Geobge Rose Smith, Justice.

The appellee, South-land Racing Corporation, operates a greyhound race track in Crittenden county, with pari-mutuel betting, under the authority of Act 191 of 1957, as amended. Ark. Stat. Ann., Title 84, Ch. 28 (Repl. 1960). In 1969 the General Assembly amended the law to provide that all officers and directors of such greyhound dog tracks must be qualified electors of the State, must have resided in the county where the track is located for at least two years, and must maintain their residence in the county during their tenure in office. Act 285 of 1969; Ark. Stat. Ann. § 84-2823.10 (Supp. 1969).

Harry Latourette is Southland’s only officer and only director who is not a resident of Crittenden county. Southland brought this suit against the members of the State Racing Commission and the Attorney General for a declaratory judgment holding Act 285 to be unconstitutional and for an injunction restraining the Commission from enforcing the act. This appeal is from a decree holding the act to be invalid as a grant of special privileges and immunities that do not equally belong to all citizens upon the same terms. Ark. Const., Art. 2, § 18.

In assailing the validity of the act Southland relies not only upon the privileges and immunities clauses of the state and federal constitutions, but also upon the due process, equal protection, and interstate commerce clauses. We shall consider all those constitutional attacks together, for with respect to each one the controlling question is whether Act 285, with its residence requirements, is a reasonable exercise of the state’s police power.

We hold the act to be valid. The operation of a dog track, with legalized gambling, is unquestionably a privilege which the State might prohibit altogether if it chose to do so. Fortune telling and the sale of intoxicating liquors fall in that same category and may similarly be prohibited. White v. Adams, 233 Ark. 241, 343 S. W. 2d 793 (1961); Wade v. Horner, 115 Ark. 250, 170 S. W. 1005, Ann. Cas. 1916E, 167 (1914). That being true, the State may impose conditions upon the exercise of the privilege beyond those that might be imposed upon the enjoyment of matters of common right. As we said in the Wade case: “The State has this right, because the authority to sell liquor is a mere privilege, which the State may grant or withhold, as it pleases, or, if it grants this permission at all, it may do so under any conditions which it cares to impose; and this is true, as has been stated, even though these conditions are so onerous, as to amount to virtual prohibition of that traffic.”

Statutes restricting the issuance of liquor licenses to local residents have frequently been sustained. Well reasoned opinions include those in De Grazier v. Stephens, 101 Tex. 194, 105 S. W. 992 (1907), citing other cases, and Hinebaugh v. James, 119 W. Va. 162, 192 S. E. 177 (1937), which we approved in Brown v. Cheney, 233 Ark. 920, 350 S. W. 2d 184 (1961), cert. den. 369 U. S. 796. Such a statute is a permissible exercise of the State’s police power. The reason is that the residence requirement enables the licensing authority to determine in the first instance whether the applicant is of good moral character and to maintain thereafter the necessary surveillance over the conduct of a business that must be closely regulated in the interest of the public peace, health, and safety.

Those considerations apply with even greater force to an establishment, such as a race track, where gambling is permitted. It is common knowledge that underworld racketeers and criminal syndicates are constantly seeking to gain control of gambling enterprises and devices, whether legal or illegal. Our lawmakers were certainly justified in believing that a residence requirement such as that contained in Act 285 would assist local authorities in the necessary policing of establishments such as race tracks. The exact extent to which such establishments should be controlled by law is peculiarly within the province of the legislative branch of the State government. When we consider the broad power that the state has over such enterprises, extending even to the point of total prohibition, we certainly cannot say that the simple residence requirements set forth in Act 285 are so arbitrary or so totally without foundation as to be contrary to the constitution.

We have not overlooked Southland’s further contentions that Act 285 violates the obligation of its contractual franchise and that the act is a local or special measure simply because Southland happens to operate the only greyhound track in the state. We do not regard either contention as having sufficient merit to warrant discussion.

Reversed.


author: Lyle Brown, Justice.

text:
    Spellman JENNINGS, Adm’r v. Elmer SEXTON
    5-5107
    449 S. W. 2d 408
    Opinion delivered February 2, 1970

      Billingsley, Stubblefield & Matthews, for appellant.

      Murphy, Arnold & Blair, for appellee.
   Lyle Brown, Justice.

Tena Cheryl Rector, age three years, was fatally injured when she was struck in the driveway by a pickup truck driven by her maternal grandfather, Elmer Sexton. Spellman Jennings, Administrator, brought this suit against Sexton, seeking recovery for the death of the child. At the close of the administrator’s proof the trial court granted a motion for an instructed verdict in favor of the defendant Sexton. On appeal the administrator challenges the correctness of the directed verdict.

The Bob Rector family, consisting of the husband, wife, and Tena Cheryl, were spending several days in May 1968 in the home of Mrs. Rector’s father (appellee) at Viola in Fulton County. The only persons at home at the time of the mishap were appellee, Mrs. Rector, and Tena Cheryl. Until about ten o’clock a.m. on May 18, appellee had spent most of his time at the Viola school where he did custodial work. Until that time he had not used his truck. It was parked near the front door of the home and some eight feet from the steps leading to the door. The driver’s side of the truck was farther away from the steps. He returned to his home about mid-morning. Mrs. Rector was in the living room into which the front door opened. Tena Cheryl was in the bedroom playing with a doll. In the four-room house the child was visible to the mother. The bedroom, bathroom, and kitchen all open off the living room. Mrs. Rector and appellee conversed a few minutes, whereupon appellee left through the front door and entered his truck. He left the house alone. The child was in the house at the time appellee left but Mrs. Rector was not certain as to just what part of the house. Appellee’s mission was to proceed just across the road and cut some trees which had blown over. Mrs. Rector was not aware that her father was going to use the truck. From the time appellee left the house to the time he started the truck there was no unusual lapse of time — no longer than it would take for him to walk directly to the truck, enter it, and start the motor. About the time Mrs. Rector heard the motor she missed the child and stepped out the door to see about her. The truck had stopped and the child’s body was under the truck with her head resting against the front of the right rear wheel.

The facts recited are taken from the testimony of Mrs. Rector. She further testified about the relationship between appellee and his granddaughter, Tena Cheryl. They were very devoted to each other; she always wanted to go with him and he took her along very often. Bob Rector testified that the child was fond of riding in the truck and estimated that appellee would take Tena in the truck almost twice daily to such places as the school, the store, and the postoffice. The father also testified that both the mother and appellee related that the child was in the house at the time appellee left to enter the truck.

After the court announced that the motion for an instructed verdict would be granted, appellant sought permission to reopen the case and call appellee as a witness. That motion was denied and appellant was permitted to dictate into the record his version of what appellee’s testimony would be if he were called to testify. In his argument for reversal, appellant in no wise advances as a point the allegation that the trial court abused its discretion in refusing to permit the case to be reopened for further testimony. We would have to find that the trial court committed error in that respect before evaluating the proffered testimony. We do not reach that matter because it is not argued. Consequently we give no weight to the proffered evidence in resolving the propriety of the instructed verdict.

If in the exercise of ordinary care under the circumstances the child could or should have been seen by appellee, then it would have been negligence for him not to have observed the child. If the child was in the habit of darting toward the truck when the motor started, or if she ordinarily followed after him when he left the house, then such behavior would be a factor in evaluating appellee’s conduct; in other words, in those circumstances he would be required to exercise care commensurate with the behavior reasonably to be anticipated. See Smith v. Wittman, 227 Ark. 502, 300 S. W. 2d 600 (1957), and AMI 605.

We have examined the evidence and all reasonable inferences deducible therefrom in a light most favorable to appellant and we cannot say there was substantial evidence of negligence to be submitted to the jury. There is no proof that the child was ever in a position to be observed by appellee, or in a position where she would have been observed. There is no evidence that the child ever before darted from the custody of one of the parents or otherwise followed appellee to a position of danger in proximity to the truck; the fact that the grandfather would often take her with him could not, standing alone, justify such a likelihood. When appellee walked alone out the front door, Tena Cheryl was in the house, as was her mother, the latter being in the front room near the door. It is clear to us that the child darted through the door unseen by her mother and at or about the time the motor started. The walk from the door to the driver’s side of the truck could not have been more than ten steps. It would he pure speculation to say from the evidence that appellee should have anticipated that the child would escape the eye of her mother and in a matter of not more than a minute make her way to the rear of the truck.

Affirmed.


author: John A. Fogleman, Justice.

text:
    J. L. McENTIRE, J. C. McENTIRE and W. A. McENTIRE v. Curtis ROBINSON
    5-5124
    449 S. W. 2d 395
    Opinion delivered February 2, 1970

      Brockman & Brockman, for appellants.

      George Howard, Jr., for appellee.

      We are unable to say which of the appellants was being referred to in this testimony.

   John A. Fogleman, Justice.

We remanded this case to the chancery court with directions to determine the boundary line dividing lands owned by appellants and those owned by appellee. McEntire v. Robinson, 243 Ark. 701, 421 S. W. 2d 877. Pursuant to the mandate, the chancery court entered a decree. It was based upon an agreement between the parties that the line be established 10 feet west of appellee’s house and run at a right angle to the north boundary line between the lands of the respective parties. This decree directed that appellee Robinson remove the fence then existing on or before January 1, 1969, and relocate the same on the boundary line fixed by the court pursuant to the agreement of the parties. On February 21, 1969, appellants filed a motion that the court authorize them to have a survey made, at their expense, to verify a survey made by one E. A. Jack Harris at the instance of appellee. The significance of the motion lies in its allegation that appellants and their surveyor should be authorized' to enter upon appellee’s lands for the purpose of making this survey. Written notice of hearing on this motion at 3:00 p.m. on February 24, 1969, was given appellee by appellants’ attorneys. At this hearing, the chancellor denied appellants’ motion. This appeal comes from the order of denial.

Appellants’ sole point for reversal is that the denial of their motion was an abuse of discretion on the part of the chancellor. We do not agree.

None of the appellants appeared when the motion was called for hearing nor did they subsequently make any appearance or offer any excuse for their non-appearanee. The hearing was not commenced until the court had awaited their appearance for twenty minutes after the hour specified. At the outset, the court called upon appellants’ attorney to proceed, as the moving party, to offer evidence in support of the motion. When he did not do so, the chancellor examined appellee, who was subsequently cross-examined by appellants’ attorney and examined by his own attorney. Robinson testified that he employed Harris, the County Surveyor of Lincoln County, to survey the line in accordance with the court’s decree. The reason he gave for employing this surveyor was that he had been surveying for Mr. McEntire for about 25 years. According to Robinson, when Harris came down to make the survey he sent Harris to get McEntire and his son, and they went along on the survey. He also stated that McEntire furnished iron stakes and had his stepgrandson put them down after the line was run. These were placed in the ground under the direction of McEntire, and Robinson said they were still standing.

Appellant called Mr. John Harris Jones, one of the attorneys for the McEntires, as a witness. Jones testified that he received a call from McEntire and Harris on December 4, 1968, the date Robinson said the survey was made. He talked to both on the same telephone call. He related that he advised McEntire not to try to prevent the survey because Robinson had a right to survey his own boundary.

Since appellee was charged with responsibility of moving his fence to the correct line prior to January 1, 1969, since one of the appellants caused iron stakes indicating the line established by the Harris survey to be placed in the ground, and since appellants made no application to the court until two and one-half months after the survey was made and then failed to appear and show any cause why their motion should be granted, there was no abuse of discretion on the part of the chancellor.

This does not mean that appellants cannot cause whatever survey they desire to be made at their own expense, so long as it is done without trespass on the lands of the appellee, or that the line established by the Harris survey is necessarily correct.

The decree is affirmed.

      This person is also referred to as McEntise’s "grandson-in-law.”


text:
    M. T. LAWRENCE v. FORD MOTOR CREDIT COMPANY and BENTON STATE BANK
    5-5166
    449 S. W. 2d 695
    Opinion delivered February 2, 1970

      Langston & Langston, for appellant.

      Griffin Smith, for appellees.
   John A. Fogleman, Justice.

M. T. Lawrence appeals from judgments entered in an action on a promissory note brought by him against one W. A. Williams, who operated a Ford automobile dealership as Williams Ford Company. He asserts that there was error in permitting Benton State Bank to intervene and in denying his motion to strike and dismiss the intervention. He also contends that the court erred in discharging the garnishee, Ford Motor Credit Company. No other issue is raised on this appeal. The major premise of both points for reversal is that a “consent judgment” entered relative to a garnishment issued against the credit company in the original action constituted a final judgment against the garnishee and was conclusive as to the rights of Lawrence in funds later paid into court by the garnishee.

Since we do not agree with appellant a review of the history of the litigation is necessary. By a written instrument dated August 11, 1965, Benton State Bank was assigned all sums belonging or which might become payable, to Williams Ford Company, from a reserve account established by Ford Motor Credit Company. Lawrence filed suit against Williams on August 30,1965, and caused the issuance of a garnishment against Ford Motor Credit Company. The date of service of this writ does not appear, but an answer denying the existence of any indebtedness to Williams was verified on September 15, 1965, and filed two days later. Upon traverse of this answer by appellant, propounding additional interrogatories, the garnishee on October 14 filed a supplemental answer. In this answer the credit company admitted that it held $20,353.15 to the credit of Williams Ford Company representing dealer reserves and excise tax refunds, an estimated $4,800 in factory credits from Ford Motor Company and $1,997.12 in dealer funds, all as security for contingent liabilities of Williams Ford Company on paper hypothecated to garnishee with recourse, and a continuing guaranty of the debts of Williams Ford Company by Williams.

In the meantime, judgment against Williams in fav- or of Lawrence for $11,685.22 had been filed on October 5. On November 8, 1965, a court order labeled “judgment” was made and filed. By its terms, the garnishee was ordered to hold the funds described in its supplemental answer, apply them pursuant to agreements with Williams Ford Company, and, when all its claims there-against were liquidated to pay any excess first to Lawrence, and then to Williams, when and if the claim of Lawrence was satisfied. On April 16, 1966, appellant propounded additional interrogatories to the garnishee asking an accounting for the funds it had held. The record does not reflect any answer by the credit company.

No other action was taken until March 19, 1969, when Benton State Bank filed its complaint in intervention, asserting ownership of any balance of the funds in question by reason of the assignment previously mentioned. Its motion for intervention was granted the following day. On May 21, 1969, Lawrence filed a motion to dismiss and strike the intervention. He asserted that the intervention was untimely because filed 3% years after judgment had been entered against the garnishee.

The garnishee then paid $4,078.70 into the registry of the court and filed its motion for discharge on June 4, 1969, which was granted by the court on the same day. On June 19 the court denied appellant’s motion to dismiss and strike the intervention. On August 13, 1969, both parties moved for summary judgment. The motion of Benton State Bank was granted.

We do not agree with appellant in his assumption that the “judgment” entered on November 8, 1965, constituted a final judgment against the garnishee. Arkansas Statutes Annotated § 31-509 (Repl. 1962) provides for judgment against a garnishee after answer and determination of issues made by the pleadings “for the amount due from the garnishee to the defendant in the original judgment or so much thereof as will be sufficient to satisfy the plaintiff’s judgment, with costs.” It is clear that the judgment must specify the amount to be paid. The “judgment” entered was not a “final judement.” In Thomas v. McElroy, 243 Ark. 465, 420 S. W. 2d 530, we said that a judgment must be tested by substance and not form. We held that a judgment for money must be a final determination of the rights of the parties in an action, must specify the amount the defendant is required to pay, and must be capable of enforcement by execution or other appropriate means. Here, there was never a time, prior to the intervention, when the court could have specified the amount due, or when an execution or other such writ could have been issued.

Arkansas Statutes Annotated § 31-157 (Repl. 1962) permits any person disputing the validity of an attachment, or stating a claim to, interest in, or lien upon attached property to present his complaint at any time before the payment to the plaintiff of the proceeds of an attached debt. There can be no doubt about the applicability of this statute to this case. A garnishment is only a species of attachment. Allen v. Stracener, 214 Ark. 688, 217 S. W. 2d 620. Service of a writ of garnishment upon a debtor is an attachment of the debt or a form of levy thereupon. Moore v. Kelley, 47 Ark. 219, 1 S. W. 97. Once the intervention was filed, as permitted by the statute, the credit company could have protected itself only by paying the fund into court.

What we have heretofore said also disposes of appellant’s argument that the intervention was not permissible because the bank could have sought a remedy against the credit company in an independent action. The question is not whether it might have done so. It is whether the intervention was erroneously permitted.

Arkansas Statutes Annotated § 31-509 (Repl. 1962) provides that if issues made by a garnisher’s pleading controverting the garnishee’s answer are found for the garnishee he shall be discharged without further proceedings. Arkansas Statutes Annotated § 31-511 (Repl. 1962) provides that if the garnishee shall surrender the entire amount due upon the return day, he shall be discharged with costs. Until Williams Ford Company’s ultimate liability to Ford Motor Credit Company was finally determined, the garnishee was under no obligation to pay over any funds. The clear implication of the statutes is that when the amount due from the garnishee is determined and surrendered, he should be discharged.

We cannot say that the garnishee was not entitled to be discharged upon paying the fund into court considering the circumstances existing here and the language of the court order of November 8, 1965. An order made by the court upon a garnishee to pay money is not a judgment against him and does not determine his liability. It only confers upon the attaching creditor of the garnishee’s creditor the same right to collect what the garnishee may owe the attached creditor that the latter had against the garnishee. Penyan v. Berry, 52 Ark. 130, 12 S. W. 241. The “judgment” of November 8, 1965, cannot be anything more than an order to the garnishee to pay over an indeterminate amount of money.

In the judgment of August 13, there was a finding by the circuit court that notice of the assignment was given the garnishee on September 17, 1965. As to the points raised, this finding is of no significance because we find absolutely nothing in the record to support it, because the bank was not a party to the action at that time, and because no funds had been paid in or judgment rendered against the garnishee.

The judgment is affirmed.

      While it appears that this company was a corporation, allegations by appellant that the corporation was the alter ego of Williams and that assets of the corporation should be applied to his debts do not seem to be controverted.

      This order recited that both Williams and Williams Ford Company authorized the action there taken by letter attached to the supplemental answer. The letter does not appear in the record.

      In view of the disposition made of this case, we express no opinion whether these funds, under the circumstances, were subject to garnishment.

      At one time it was held that a personal judgment could not be entered against a garnishee in the original proceeding. See Nelson v. Blanks, 67 Ark. 347, 56 S. W. 867.


author: J. Fbed Jones, Justice.

text:
    Winter C. WOMACK v. Doris Mae WOMACK
    5-5165
    449 S. W. 2d 399
    Opinion delivered February 2, 1970

      Brown, Compton, Prewett & Dickens, for appellant.

      Shackleford & Shackleford, for appellee.
   J. Fbed Jones, Justice.

This is an appeal by Winter C. Womack from an order of the Union County Chancery Court overruling his motion to dismiss a petition for separate maintenance filed by his wife, Doris Mae Womack. Mr. and Mrs. Womack were married on March 14, 1947, and lived together as husband and wife until June 23, 1969, when they separated because of an accumulation of difficulties stemming primarily from Mr. Womack’s interest, or at least interest which Mrs. Womack suspected he had, in a female fellow employee. Mrs. Womack told Mr. Womack to get out of their home and he did.

On August 7, 1969, Mrs. Womack filed a petition for separate maintenance, alleging that Mr. Womack had treated her with contempt, neglect and abuse systematically and habitually pursued to the extent that her condition in life had become intolerable. Mrs. Wornack alleged the birth of three children, two of whom are still minors and in her custody. She prayed for permanent custody of the children; for a reasonable amount for the support of herself and the children; for permanent use of the homestead and automobile, and for attorney’s fees and court costs. Mr. Womack responded by general denial except as to the marraige, separation, and birth of the children. He recognized his obligation to support his wife and children and prayed that the court enter such order as under the circumstances may be proper.

The petition was set for hearing on August 25, 1969, and on that date both Mr. and Mrs. Womack testified as to his income, and their respective expenses and needs. No evidence was offered' at that hearing as to fault of the parties. This hearing was obviously in connection with temporary support, possession of property, and suit money. After the hearing on August 25, 1969, and before the chancellor acted on the petition; or at least before he entered an order in connection therewith, Mr. Womack moved back into the home, over Mrs. Womack’s objections, and on September 4, 1969, he filed a petition alleging facts and praying relief, as follows:

“Subsequent to the hearing of this matter on August 25, 1969, the defendant, Winter C. Womack, returned to the parties’ household where he is now living and is ready, willing and able to provide for his wife and children.
Therefore, this action has become moot and there is no basis for the entry of any order for support, maintenance or related matters.
WHEREFORE, premises considered, the defendant prays that the Court find that this matter is moot and an appropriate order be entered.”

It was at the hearing on this petition that evidence was first adduced by both parties as to the cause of the separation in the first place. It appears from the evidence that Mrs. Womack came into possession of letters addressed to Mr. Womack and signed by someone named “Sue.” It also appears that Mrs. Womack on one occasion observed Mr. Womack leaving a hotel with a woman by that name, and on another occasion she observed Mr. Womack and Sue having lunch together at a diner. Mr. Womack was employed in radio and he had been observed, by their older son, leaving the radio station late at night in the company of Sue, and Mrs. Womack had received anonymous letters and telephone calls pertaining to the same person. The evidence indicates that Mr. Womack first denied everything when confronted with Mrs. Womack’s accusations, but when his denials seemed only to aggravate the situation, he adopted the procedure of not denying anything. Mr. Womack contends that his relations with Sue have been of an innocent business nature and that his wife has no justification for separate maintenance.

The chancellor denied Mr. Womack’s petition by order dated September 12, 1969, and on the same date entered an order awarding Mrs. Womack temporary support in the amount of $600 per month, together with $100 per month support for the minor child at home. The chancellor also ordered Mr., Womack to pay tuition for the older son in the amount of $521 and to pay an allowance for him in the amount of $50 per month. The chancellor also ordered Mr. Womack to pay Mrs. Womack’s attorneys a fee of $750.

On his appeal to this court Mr. Womack relies on the following points for reversal:

“The order of the Chancellor in overruling the appellant’s petition to set aside separate maintenance was contrary to the evidence presented in this case and the law applicable thereto.
The order of temporary support and maintenance to appellee is exorbitant and should be reduced accordingly.
The attorneys’ fees awarded as a part of the court’s order of temporary support and maintenance is exorbitant and should be reduced to a reasonable sum.”

It is apparent from the face of the pleadings, as well as from the evidence adduced at the hearing on Mr. Womack’s petition, that this is not the type of case where Mr. Womack can moot Mrs. Womack’s alleged cause of action by simply returning to live with her against her will. Mrs. Womack did not tell Mr. Womack to leave because he was not supporting her. She alleged in her petition that he treated her “with contempt, neg^ct and abuse systematically and habitually pursued so as to make her condition in life as his wife intolerable.” Whether Mrs. Womack can sustain her allegations by actual proof remains to be seen when her petition is heard on its merits for a permanent decree of support, child custody, and property rights. The circumstances under which Mr. Womack left his wife and home are revealed by his own testimony, as follows:

“I walked in the bedroom as soon as I got there, which is a habit of mine, and pulled off my coat and there was a suitcase on the bed which my kids bad given me in 1965. My wife had followed me into the bedroom and I asked her what the suitcase was doing on the bed and she said — that is to pack your clothes in and get your blank out of here. I asked her why and she said — just get out of here. I tried to talk to her but she wouldn’t talk to me so I packed my clothes and went to the farm. On Wednesday I went back to the house to get my tie pins and I went into the bedroom and again she followed me in there and I said — Doris, why did you put my suitcase on the bed just when I thought we had everything worked out and she said — I didn’t put it there, your daughter did. I called my daughter the next day and asked her why she had put the suitcase on the bed and she said — I am tired of you making mother unhappy.”

The facts in this case present a situation wherein a wife packs her husband’s suitcase, tells him to get out and he does. The wife then files a petition for separate maintenance alleging that the husband has mistreated her to the extent that her condition as his wife has become intolerable. The husband then files a petition of his own saying that he has returned to the home and intends to stay there and support his wife and therefor his wife’s petition for separate maintenance has become moot and should be dismissed. We are simply unable to follow Mr. Womack’s reasoning on this point. It should be perfectly obvious to him that Mrs. Womack complains of something more than his being absent from the home and nonsupport. It is perfectly obvious that Mrs. Womack suspects that her husband has become interested in another woman to the extent that she, Mrs. Womack, does not want Mr. Womack back, living under the same roof with her.

Ark. Stat. Ann. § 34-1202 (Repl. 1962) provides as follows:

“Grounds for divorce. The chancery court shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony, for the following causes:
* # #
Fifth: Where either party shall be addicted to habitual drunkenness for the space of one (1) year or shall be guilty of such cruel and barbarous treatment as to endanger the life of the other, or shall offer such indignities to the person of the other as shall render his or her condition intolerable.”

Ark. Stat. Ann. § 34-1210 (Repl. 1962) provides as follows:

“During the pendency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt, and the court may allow additional attorney’s fees for the enforcement of payment of alimony, maintenance and support provided for in the decree.”

While an independent suit for separate maintenance may be brought and maintained under the broad powers of equity (Wood v. Wood, 54 Ark. 172, 15 S. W. 459), we are of the opinion that the petition filed by Mrs. Womack was essentially a petition for a divorce from bed and board, and the award of separate maintenance during the pendency of the action, as well as attorney’s fees, was within the sound discretion of the chancellor. Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S. W. 2d 246.

In Gilliam v. Gilliam, 232 Ark. 765, 340 S. W. 2d 272, the wife filed suit for separate maintenance. The grounds alleged in the petition are not set out in the opinion, but Mrs. Gilliam testified as to physical abuse accorded her by Mr. Gilliam. In sustaining the award for separate maintenance, this court said:

“We have a long line of cases which recognize that under what is now § 34-1202, Ark. Stat. the Chancery Court has the power to decree separate maintenance to the wife.”

We do not attempt to distinguish between independent actions for alimony and those in connection with actions for divorce because that has already been done in Wood v. Wood, supra. In the case at bar allegations were made, proof was offered and the issues were tried and considered as a petition for divorce from bed and board. Tbe case lias not been heard by the chancellor on its merits, and it is recognized by all parties concerned that the order appealed from is temporary. Mr. Womack’s monthly income amounts to between $1,-100 and $1,100. Certainly a wife may not leave her husband or drive him away without cause and demand that he continue to support her. Neither may a husband force his wife to endure his conduct constituting grounds for divorce or forfeit her right to maintenance and support.

Mrs. Womack may not be entitled to separate maintenance at all when this matter is heard on its merits, but we are unable to say that the chancellor abused his discretion in the temporary awards made in this case. Mr. Womack also complains that the attorney’s fee of $750 awarded against him is exorbitant. The attorney’s fee awarded by the chancellor was in the nature of suit money and may have included fee for services in the future, as well as for services performed. Mr. Womack’s contention that the fee is exorbitant, as well as Mrs. Womack’s petition for an additional attorney’s fee on appeal to this court, may be considered and passed on by the chancellor on final hearing and disposition of this case.

Affirmed and remanded.


author: Prank Holt, Justice.

text:
    Thomas Daniel LIVINGSTON Sr. v. Goldie B. LIVINGSTON
    5-5142
    449 S. W. 2d 396
    Opinion delivered February 2, 1970

      Stubblefield & Matthews, for appellant.

      Martin, Dodds, Kidd, Hendricks & Ryan, for appellee.
   Prank Holt, Justice.

This appeal results from the chancellor’s order requiring the appellant to pay his wife, the appellee, $100 per week temporary alimony and provide other benefits during the pendency of a divorce action. Appellant first urges for reversal that he has no income or property and is unable to pay any alimony at this time. We cannot agree.

In November 1967, after approximately 18 years of marriage, appellee instituted an action against appellant for separate maintenance alleging, inter alia, “that he kept company with other women.” It appears this action was dormant until October 1968 when appellee amended her complaint, asked for a divorce and asserted that appellant and appellee “through their joint efforts own an automobile business, together with other properties and interests and that the plaintiff [appellee] is unemployed and unable to support herself, and that she should be awarded alimony, her interest in and to all properties owned by the parties.” Upon a hearing in December 1968, the chancellor ordered, inter alia, that the appellant pay to the appellee $100 per week temporary maintenance and awarded her the use of an automobile. About six months later, or in July 1969, the appellant filed a motion asserting that his only source of income was derived from Dan Livingston Auto Sales, Inc. and that because of conditions beyond his control earlier in this same month the corporation had been forced to go out of business which prevented him from receiving any salary from the corporation, that he was endeavoring to secure employment as an automobile salesman and that he had no funds or assets with which to pay any maintenance to the appellee.

According to appellant and his regular accountant, a financial statement of appellant’s corporation reflected the corporation’s current liabilities exceeded the assets by approximately $19,000 on the day before the hearing. The accountant testified that he made the financial statement from the regular books and records kept by appellant and his bookkeeper. It was not an independently certified statement. According to the accountant, ordinarily the assets and liabilities of any business change every day. Appellant testified that he had put into the corporation all of his cash assets and also $5,000 he had borrowed from a bank; that he had no personal assets whatsoever and he felt personally responsible for paying the outstanding bills owed by his corporation. According to the financial statement, appellant’s corporation has approximately $27,000 in a dealer’s reserve account held by a local bank to secure the payment of approximately $460,000 which represents the installment contracts purchased by the bank with recourse. No part of this reserve, however, can be withdrawn by the appellant for three years. The potential loss on these installment contracts is estimated at $20,-000 on the financial statement. However, a bank official said it was conceivable that most of this reserve might be returned. The appellant testified that he had an offer of employment, beginning the next day, with one of the largest local automobile dealers which will yield an estimated income of $400 per month. His personal indebtedness is $131 he owes on interest for late payment on his and appellee’s joint federal and state income taxes totaling $1,299.17. It is admitted that appellant’s bookkeeper and her two children, ages 9 and 11, are living in the same house with appellant. There was evidence that appellant and his bookkeeper were often observed together on weekends at a nearby local lake resort. Appellant claims his 19-year-old son lives with him and is dependent upon him. There was testimony, however that his son was married on the date of the hearing. Appellant’s position is that he was having to liquidate his business because the prime interest rate had increased to such an extent that the bank would no longer finance his installment sales contracts. Although a bank official testified with reference to the dealer’s reserve account, there was no evidence elicited that the bank had refused to continue lending money to the appellant’s corporation. We have often said that the testimony of a litigant or of a party interested in the result of the litigation is not treated as uncontradieted or undisputed. Lewis v. Lewis, 222 Ark. 743, 262 S. W. 2d 456 (1953).

The appellant next asserts that the appellee wife is not in need of support from him at this time. During the pendency of this action it appears that the parties sold their house and each received $5,000.00. At the time of the hearing appellee had depleted her share to $3,-800.00. On the date of the trial appellant paid her $600 for arrearage. Appellant argues that the award of temporary alimony is based upon the existence of necessity during the pendency of a divorce proceeding. Tracy v. Tracy, 184 Ark. 832, 43 S. W. 2d 539 (1931).

Appellee is 43 years of age with an eighth-grade education. During their separation she had tried to work and after a month she was unable to continue working because of her health. She has an arrested case of tuberculosis. She is under the care and treatment of doctors for nervousness and extreme exhaustion. There was evidence from her doctor that she was unable to work at the time of the hearing. The appellant admitted that he had spent more than $100 per week on appellee before their separation. In these circumstances we cannot agree with appellant that the chancellor abused his discretion in awarding temporary alimony based upon appellee’s needs. It is well settled that it is within the sound discretion of the chancellor to award temporary alimony, costs and attorney’s fees and the award will not be disturbed on appeal unless there is abuse of discretion. Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S. W. 2d 246 (1943).

The appellant also contends that the change of circumstances since the December 1968 order warrants the suspension of payments to appellee and $100 to her attorney. The appellant reviews the evidence which we have previously discussed. We find no abuse of discretion by the chancellor and, therefore, no merit in this contention.

The appellant next asserts that his wife is not entitled to the use of the corporation’s automobile as was ordered by the chancellor. It appears a local bank holds a delinquent lien on this car. In the circumstances it is for the bank to assert its rights. As between the parties we find no error in the court awarding appellee the use and benefit of the automobile for the purpose of providing her with adequate transportation during the pendency of this divorce action.

Affirmed.


author: Carleton Harris Chief Justice.

text:
    Gladys FLIPPO v. MODE O’DAY FROCK SHOPS OF HOLLYWOOD et al
    5-5112
    449 S. W. 2d 692
    Opinion delivered February 9, 1970

      Murphy, Arnold ir Blair, for appellant.

      Barber, Henry, Thurman, McCaskill & Amsler and Highsmith, Harkey ir Walmsley, for appellees.
   Carleton Harris Chief Justice.

This litigation is occasioned by a spider bite. Gladys Flippo, appellant herein, went into a ladies clothing store in Batesville, operated by Rosie Goforth, and known as Mode O’Day Frock Shops of Hollywood. Mrs. Flippo tried on two pairs of pants, or slacks, which were shown to her by Mrs. Goforth. The first pair proved to be too small, and according to appellant’s evidence, when Mrs. Flippo put on the second pair, she suddenly felt a burning sensation on her thigh; she immediately removed the pants, shook them, and a spider fell to the floor which was then stepped upon. An examination of her thigh revealed a reddened area, which progressively grew worse. Mrs. Flippo was subsequently hospitalized for approximately 30 days. According to her physician, the injury was caused by the bite of a brown recluse spider. Suit for damages was instituted against Mode O’Day Frock Shops and Rosie Goforth, the complaint asserting three grounds for recovery, first that a pair of slacks in a defective condition (by reason of the presence of a poisonous spider), and unreasonably dangerous was sold to appellant; second, that both appellees were guilty of several acts of negligence, and third, that there was an implied warranty that the slacks were fit for the purpose for which they were purchased, though actually not fit, because of the poisonous spider concealed therein. On trial, the court refused requested instructions offered by appellant on theories of implied warranty, and strict tort liability, and instructed the jury only, on the issue of appellees’ alleged negligence as the proximate cause of the injury. The jury returned a verdict for both appellees, and judgment was entered accordingly. From the judgment so entered, appellant brings this appeal, not however, appealing from the finding of no negligence; instead, the appeal is based entirely upon the court’s refusal to submit the case upon implied warranty and strict tort liability theories. Accordingly, for reversal, it is first urged that “there was sufficient evidence to justify a finding that Mrs. Flippo was injured by goods unfit for their intended use, supplied by a merchant with respect to goods'of that kind, and therefore the trial court erred in refusing to instruct upon the law of implied warranty of merchantability.”

It might be said at the outset that appellant has filed a very thorough and comprehensive brief in support of the positions taken; however, we are unable to agree with the views presented under the circumstances of this case. As pointed out by appellant, there was ample evidence to support a finding that Mrs. Flippo suffered a bite by a brown recluse spider concealed on the slacks furnished her by Mrs. Goforth (it is not conceded by appellees that the bite occurred in this manner). Appellant says:

“* * * if that be true, then appellant submits that such an article of clothing is not reasonably fit for use as an article of clothing and is thus not merchantable.”

It is contended that appellees were bound by the implied warranty of merchantability imposed by Ark. Stat. Ann. §. 85-2-514 (Add. 1961), this statute providing that, in order to be merchantable, the goods must, inter alia, be fit for the ordinary purposes for which such goods are used. Appellant argues that an article of clothing which conceals a venomous creature is certainly unfit for use, and therefore at the time the slacks were handed to Mrs. Flippo, the garment was unfit for the use for which it was intended, and there was accordingly a breach of the implied warranty of merchantability under either the statute or common law.

We cannot agree that the law of implied warranty of merchantability is applicable to a case of this nature. The pair of pants itself was fit for the ordinary purposes for which stretch pants are used; there was nothing wrong from a manufacturing standpoint. In fact, the evidence reflects that Mrs. Flippo bought this particular pair after being bitten, and she has worn and laundered them since the accident. There is absolutely no evidence that the goods were defective in any manner. It is, of course, readily apparent that the spider was not a part of the product, and there is no evidence that either the manufacturer or retailer had any control of the spider, or caused it to be in the pants. Mrs. Goforth said she receives the shipments once a week in pasteboard cartons sealed with tape, and that upon receiving the cartons, she immediately opens them, places the garments on plastic hangers, and hangs them out. The cartons are delivered by truck line, and the witness stated that the slacks in question had been in the store for some time in excess of 20 days.

Irrespective of whether the spider attached itself to the garment in Kansas City, or in Batesville, it was not a part of the garment. The three cases cited by appellant as authority for the common law implied warranty of merchantability, all deal with a defective product, which is not the situation in the present litigation. Perhaps our position can best be made clear by simply stating that the spider was not a part of the manufactured article, and the injury to Mrs. Flippo was caused by the spider — and not the product. We find no cause of action under either the statute or the common law.

Nor can we agree that the trial court erred in refusing to instruct the jury upon the principles of strict tort liability. In Restatement (Second), Torts § (402A) which deals with products that are defective, and thus made unreasonably dangerous to the user or consumer, we find:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. * * *”

It is at once obvious that the product sold in the instant case was a pair of slacks, and the slacks were not in a defective condition; nor were they unreasonably dangerous; in fact, they were not dangerous at all; still further, the slacks did not cause any physical harm to Mrs. Flippo. Without elaboration, it is at once apparent that sub-headings (a) and (b) are not applicable to this litigation, for no one can really contend that the spider was a part of the product, nor can anyone do more than guess at when the spider attached itself to the slacks.

Appellant points out that the lack of privity between a plaintiff and defendant is no longer a defense in any action brought against a manufacturer or seller of goods to recover damages for breach of warranty, or for negligence "if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods.” See Ark. Stat. Ann. § 85-2-318.1.

She asserts that it is now entirely logical for this court to adopt the rule of strict tort liability.

In cases involving the sale and use of alleged defective products, we have pointed out that there must be substantial evidence- of negligence, such negligence being a proximate cause of the injuries sustained before recovery will be permitted. See, inter alia, Kapp v. Sullivan Chevrolet Company, 234 Ark. 395, 353 S. W. 2d 5; Ford Motor Company v. Fish, 232 Ark. 270, 335 S. W. 2d 713. In one case, Chapman Chemical Company v. Taylor, et al, 215 Ark. 630, 222 S. W. 2d 820, we applied the rule of strict liability to the use of the substance, 2-4-D, stating:

“If one casts into the air a substance which he knows may do damage to others, and in some circumstances will certainly do so, principles of elementary justice, as well as the best public policy require that he know how far the substance will carry or be conveyed through and what damage it will do in the path 4>f its journey, and if he releases such a substance whether from ignorance of, or in indifference to the damage that may be done, the rule of strict liability should be applied.”

Were we inclined to a more liberal view of the theory of strict tort liability, it would not be applied in this case, for we have no hesitancy in stating that the facts in the instant litigation do not support the submission of the case on that theory. This case was properly submitted upon the issue of negligence, and it would have been improper for the court to have given the instructions sought by appellant.

Affirmed.

      In "Changing Times, the Kiplinger Magazine,” issue of April, 1969,-Page 45, there is an interesting article with reference to this spider, entitled "Beware the Brown Recluse.” The views of several Arkansas physicians are set out, this state being one with a large infestation of this particular species of spider.

      Mrs. Goforth testified that the Mode O’Day company had six or eight factories, and that she received the clothing on consignment, the goods belonging to the company until sold. She said that the company products have an identifying tag sewn in; that occasionally, the parent company purchases items from other companies. The witness stated that the pants tried on by Mrs. Flippo did not have a Mode O’Day tag, and were manufactured by some other company.

      The evidence reflected that Mrs. Flippo. had, at some previous time, been in the business of raising chickens, and owned a chicken house. She said that she had seen spiders in this chicken house, though not at the time chickens wete being raised. It is suggested by appellees, that’she could have brought the spider into the store with her.

      Onc of the cases, Neel v. West-Winfree Tobacco Company, 142 Ark. 505, 219 S. W. 326, deals with tobacco that was practically worthless and entirely unsatisfactory for use or sale because it was full of bugs; of course, like weevils in flour, this ruined the product.

      This court had already held that the doctrine of privity should not be a shield against a breach of warranty action when the suit was instituted by an employee of the original pm chaser. See Delta Oxygen Company v. Scott, 238 Ark. 534, 383 S. W. 2d 885 (1964).