ARK.]	 1093


BILLY J. WAWAK V. ROBERT 0. STEWART ET AL


5-5016	 449 S. W. 2d 922


Opinion delivered February 2, 1970 

[Rehearing denied March 9, 1970.] 

1. VENDOR & PURCH ASER—CAVEAT EMPTOR IN SALES OF REALTY—MOD. 

IFICATION OF RULE IN SALE OF NEW HOUSE BY BUILDER-VENDOR. 

—An implied warranty of fitness may be recognized in the sale 

of a new house by a seller who was also the builder. 

2. COURTS—RULES OF DECISION—EFFECT UPON LEGISLATURE.—COUrt 

decisions have no effect upon General Assembly's freedom to 

change the law if it sees fit, but may f ocus legislative attention 

upon a problem. 

3. COURTS—RULES OF DECISION—APPLICATION .—Rule modifying doetrine of caveat emptor with respect to sale of a new house by 

builder-vendor is made applicable only to the case at hand and 

to causes of action arising after the decision becomes final. 

4. CONTRACTS—CONSTRUCTION & OPERATION—EXCLUSION OF WARRAN• 

TIES.—Language in offer and acceptance agreement, which did 

not purport to exclude all warranties, applied only to defects 

that might reasonably have been discovered in the course of 

an inspection by a purchaser of average experience, but did not 

exclude an implied warranty with respect to a defect which lay 

beneath a concrete floor and could not have been discovered by 

even a careful inspection. 

5. DA MAGES—MITIGATION—DUTY OF INJURED PERSON:A plaintiff 

must use reasonable care to mitigate his damages and if the 

damages could have been avoided at reasonable expense the 

measure of damages is the amount of such expenses. 

1 6. DA MAGES—MITIGATION—REPARATION BY WRONGDOER.—Purehaser's 

duty to mitigate damages held not to involve material necessary to correct the basic defect. 

7. CONTRACTS—VERDICT & FI NDINGS—WEIGHT & SUFFICIENCY OF EVI.• 

DENCE.—Trial court's judgment that appellant was not entitled 

to judgment against appellee who installed the duct work under 

a subcontract held sufficiently supported by the proof. 

8. APPEAL & ERROR—VERDICT & FINDINGS—WEIGHT & SUFFICIENCY OF 

EvIDENCE.—Recovery upon appellees' cross appeal denied under 

the rule that the verdict need not correspond in amount to the 

proof adduced by either party. 

Appeal from Pulaski Circuit Court, Second Division, Warren Wood, Judge; modified and affirmed. 

Tanner & Wallace, for appellant.
1094	WAWAK v. STEWART

	

[247 

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

appellees. 

Stubblefield & Matthews and Joe Purcell, Attorney 

General; Don Langston, Mike Wilson and Milton 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 Stewarts 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 ap-
ARR.] WAWAK V. STEWART 1095 

plicable to the sale of real property was so great as to 

be indefensible. One who bought a chattel as simple as 

a walking stick or a kitchen mop was entitled to get 

his money back if the article was not of merchantable 

quality. But the purchaser of a $50,000 home ordinarily 

had no remedy even if the foundation proved to be so 

defective that tbe structure collapsed into a heap of 

rubble. 

Several law review articles, of which the earliest 

was published in 1952, forecast the new developments. 

Their titles suggest their contents : Dunham, Vendor's 

Obligation as to Fitness of Land For a Particular 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) ; Humbqr v. Morton, Texas, 426 S..W. 2d 

554, 25 A. L. R. 3d 372 (1968) ; House v. Thornton, 

Wash., 457 P. 2d 199 (1969). The near unanimity of the
1096 WAWAK V. STEWART [247 

nimity of the judges in those cases is noteworthy. Of 

the 36 justices who made up the six appellate courts, 

the only dissent noted was that of Justice Griffin in the 

Texas case, who dissented without opinion. 

A few excerpts from those recent opinions will illustrate what seems certain to be the accepted rule of 

the future. In the Schipper case the New Jersey court 

had this to say : 

The law should be based on current concepts of 

what is right and just and the judiciary should be 

alert to the never-ending need for keeping its 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 builderseller] 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.
ARK.] WAWAK V. STEWART 1097 

A similar point of view was expressed in the House 

case by the Washington Supreme Court: 

As between vendor and purchaser, the builder-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 brandnew house by a vendor-builder to a first buyer for 

purposes of occupancy. 

We apprehend it to be the rule that, when a vendorbuilder 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 impl ied 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
1098	WAWAK V. STEWART	 [247 

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 Jer gPy Supreme Court's 

decision in the Schipper case, but we should add that the 

intermediate court's arguments were fully answered by 

the Supreme Court of Idaho in Bethlahmy v. Bechtel, 

supra: 

The reasoning of the majority in the New Jersey 

decision that chaotic uncertainty would pervade the 

entire real estate field if sellers were subject to 

liability for implied warranty of fitness, and that 

the rules of caveat emptor would work no harshness 

on purchasers of real estate, is fallacious, 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
ARK.]	WAWAK v. STEWART	1099 

uncertainty or chaos than the warranties commonly 

applied in sales of personal property. Likewise, the 

statement by the New Jersey court that the 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 corn-
1100	 WAWAR V. STEWART	 [247 

ment. Counsel state that the AHBA "recognizes the 

need for the imposition of a warranty upon new construction." To that end the Association included a oneyear 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 the 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:
ARK.]	WAWAK V. STEWART	 1101 

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 

To paint house (interior) 

To clean furniture 

To replace lamp shades 

To clean duct system 

To replace draperies 

Minor repairs 

Drain tile to correct leakage

$ 75.00 

235.00 

22.00 

35.00 

200.00 

300.00 

22.00 

420.00 

$1,309.00 

Wawak insists that the recovery of the foregoing items 

is barred bv the rule that a plaintif f must use reasonable care to mitigate his damages and that if the damages could have been avoided at reasonable expense then
1102	WAWAR V. STEWART [247 

the measure 'of damages is the amount of such expense. 

Curtner v. Bank of Jonesboro, 175 Ark. 539, 299 S. W. 

994 (1927) ; Louisville, N. 0. & T. R. R. v. Jackson, 

123 Ark. 1, 184 S. W. 450, Ann. Cas. 1918A, 604 (1916) ; 

Young v. Berman, 96 Ark. 78, 131 S. W. 62, 34 L. R. A. 

(n. s.) 977 (1910). 

The pertinent facts are these : The subterranean 

ductwork radiates from a metal chamber or plenum, 

which sits under the heating and air-conditioning units. 

When Wawak and his ductwork subcontractor, 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 fai l ed to correct the trouble. 

In the meantime Stewart bought a sump pump at a 

cost of $12.50. Whenever rains caused seepage in the 

ductwork Stewart would place his pump in the plenum, 

about two hours after the water had accumulated, and 

pump the duct system dry. Under that procedure some 

of the seepage got into the house and caused most of 

the damage that we have itemized above. 

Soon after the difficulty first arose Wawak and 

Plummer proposed the installation of an automatic 

sump pump, which cost $76 or $78. Their plan was to 

dig out the floor of the plenum so that the automatic 

pump would be below the level of the ducts. Whenever 

the water at the site of the pump rose to a depth of 

three quarters of an inch the pump would start 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
ARK.] WAWAIC V. STEWART	 1103 

the house except some staining of the draperies, which 

were cleaned at Wawak's expense. 

Stewart refused to allow the automatic pump to be 

installed, insisting that he wanted to know where the 

water was coming from and would accept nothing less. 

When the proffer of the pump was refused, Wawak and 

Plummer abandoned their efforts to correct the trouble. 

Thereafter Stewart used his own pump in the manner 

that we have described, with attendant damage to the 

house and its furnishings. A period of two years or 

more elapsed before this action was finally brought. 

In the main Wawak is correct in his argument that 

the Stewarts should have mitigated their damages by 

permitting the installation of the automatic pump. On 

the record made below it is an undisputed fact that 

such a pump would have 'avoided practically all the 

itemized damages that were allowed by the trial court. 

The pump, however, would not have corrected the 

basic defect, nor does Wawak so contend. Stewart 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.
1104	WAWAK V. STEWART	 [247 

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 resti-
ARK.]	 WAWAK V. STEWART	 1105 

tution. The builder-vendor's legitimate interests are 

protected by the rule which casts the burden upon 

the purchaser to establish the facts which give rise 

to the implied warranty of fitness, and its breach. 

See Schipper v. Levitt & Sons, Inc., supra." 

In Bechtel the evidence was found sufficient to 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
1106	WAWAR v. STEWART	 [247 

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 factfinding 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 inju-ry. In determining whether 

the house Nails defective, the test admittedly Would 

be reasonableness rather than perfection. As was 

pointed out in- Courtois v., General Motors Corp., 

37 N. J. 525, 182 A. 2d 545 (1962), the comparable 

warranty, of merchantability in the sale of goods 

means only that the article is reasonably fit for the 

purpose for which it is sold and does not imply 

'absolute perfection.' 37 N. J., at p. 543, 182 A. 2d 

545. See Jakubowski v. Minnesota Mining and 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 ease 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 

ennsed the injury. Noel, supra, -71 Yale L. J., at pp. 

877-878; see also Prosser, 'The Assault Upon the 

Citadel (Strict Liability to the -Consumer),' 69 Yale 

L. J. 1099, 1114 (1960). 

• * • We note, however, as indicated earlier in this
ARK.] WAWAK V. STEWART 1107 

opinion, that even under implied warranty or strict 

liability principles, the plaintiffs' burden still 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 Stewart has failed to meet his burden of proof by 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 work-, 

manlike manner and, withopt 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 appropriate to state what the record reveals as undisputed evidence. 

Appellant employed an experienced plumbing and
1108

	

WAWAK V. STEWART [247 

heating contractor to design, lay out and install the 

heating and air conditioning system. This contractor 

testified about the installation and described the steps 

in detail, stating that the work was done in compliance 

with accepted standards. The house was completed 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. From this time on, appellant operated 

the heating and air conditioning system as a matter of 

preventive maintenance and experienced none of the 

difficulties about which the Stewarts later complained. 

The house has been occupied by the Stewarts . from the 

time of their purchase on August 1, 1964. In March or 

April 1965, water and fill materials first seeped through 

the ducts and floor registers of the heating and air 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
ARK.] WAWAIC V. STEWART 1109 

flowers. He also dug two large holes within 20 feet of 

the house in which to plant pecan trees. 

This evidence simply does not show the breach of 

any implied warranty. It seems significant to me that 

the Stewarts do not undertake to answer the argument 

of appellant in this regard in any way. In considering 

the question of evidence appellee Plummer 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 masifest 

themselves later are much more likely due to ordinary wear asd tear or the elements, and the one 

year limitation is designed to prevent the jury's 

speculating on this amd arriving at unreasonable 

results." (Emphasis mine.) 

I do not believe that the court intends to apply res 

ipsa loquitur to such cases, but I fear that this is the 

effect of the action taken. The doctrine has no application to an action for breach of implied warranty. That 

is an action on contract. Kapp v. Bob Sullivas Chevrolet 

Co., 232 Ark. 266, 335 S. W. 2d 819. We have recognized 

that even in a negligence action the doctrine does not 

apply unless there is first proof of the elements neces-
1110	 WAWAK V. STEWART	 [247 

sary to bring it into play, that the inference arising from 

the rule does not supply the foundation facts and that 

its application to a particular set of facts cannot be 

based upon speculation. Ford Motor Co. v. Fish, 232 

Ark. 270, 335 S. W. 2d 713. It was there recognized that 

it must be shown that the cause of the injury is an 

agency or instrumentality within the defendant's 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 he 

reversed as to them. To say the least the majority has
ARK.]	 WAWAK V. STEWART	 1111 

chosen a rickety vehicle upon which to transport a major 

industry into a new legal territory, the topography and 

boundaries of which have not even been explored, much 

less charted. 

It is particularly important that the doctrine of 

stare decisis control in commercial cases where 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 iinlees altered or 

repealed by the General Assembly of this state. Ark. 

Stat. Ann § 1-101 (Repl. 1956). Nor can I abstain from 

repeating an interrogatory propounded in my 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
1112	WAWAK V. STEWART	 [247 

necessarily to be dilapidated. The wisdom acquired from 

experience of the ages is also ancient. I do not deem 

it the function of the judiciary to disregard such a 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 tbe 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 law rules could be superseded by judicial action 

in New Jersey. 

Courts of other states simply by-pass the barrier, 

without mentioning it. Still others go traipsing off after 

decisions in states not faced with this obstacle, without 

noticing their own limitations. See, e. g., Bethlahmy v. 

Bechtel, 91 Idaho 55, 415 P. 2d 698 (1966), relying, at 

least in part, upon Schipper v. Levitt & Sons, Inc., 44 

N. J. 70, 207 A. 2d 314 (1965). 

I humbly submit that no rule of English common 

law was altered in MacPherson v. Buick Motor Co., 

217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C 440, 

L. R. A. 1916F 696 (1916). As a matter of fact, Mr. 

Justice Cardozo reviews the English cases and finds 

some support for his result. He also found support in 

earlier cases in New York. 

I fully recognize the necessity for growth and development of the law to fit the needs of our society in
ARK.] WAWAK V. STEWART 1113 

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 UCC 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 basi s. 

The legislative branch can anticipate most of them. 

I concur in the affirmance of the judgment in favor 

or Plummer 

1 For example, see the following sections in Arkansas Statutes 

Annotated, Title 85: definitions, 1-201, 2-103, 2-106, 2-312, 2-314 

& 315; rules bearing on rights and remedies, 2-210, 2-301, 2-302, 

2-317 & 318, 2-510, 2-515, 2-607 & 608, 2-703, 2-706, 2-711--715, 

2-717-721, 2-723, 2-725, 9-113, 9-206, 9-318; exclusion or modification, 2-316 (Add. 1961).
1114	.WAWAK V. STEWART [247 

HARRIS, C. J., joins in this opinion. 

CONLEY BYRD, Justice, dissenting. I do not believe 

that the people of this State elected me to Legislate on 

the subject of implied warranties in the sale of real 

estate. The present Constitution of the State of 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,
ARK.] 1115 

all implied warranties are excluded by expressions 

like 'as is,"with all faults' or other language which 

in common understanding calls the buyer's attention to the exclusion of warranties and makes plain 

that there is no implied warranty ; and 

" (c) an implied warranty can also be excluded or 

modified by course of dealing or course of 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.