Swersky v. Higgins

76 S.E.2d 200, 194 Va. 983, 1953 Va. LEXIS 167
CourtSupreme Court of Virginia
DecidedJune 8, 1953
DocketRecord 4060
StatusPublished
Cited by16 cases

This text of 76 S.E.2d 200 (Swersky v. Higgins) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swersky v. Higgins, 76 S.E.2d 200, 194 Va. 983, 1953 Va. LEXIS 167 (Va. 1953).

Opinion

BuchaNAN, J.,

delivered the opinion of the court.

Appellants, partners trading as Colgate Construction Company, defendants below, contracted to furnish and apply to the exterior of the residence of Alice L. Higgins, plaintiff below, for the sum of $505, which was paid, a paint-like material called Re-Nu-It, advertised as a product which would seal, insulate, beautify and protect the surface. A sign placed by the defendants in the front yard while the work was being done announced, “You Never Need Paint Again.” The material applied to the house in April, 1951, under pressure by means of a spray gun. Some weeks later the house began to turn from an original white to a dark color; dampness and mildew or mold appeared on both the outside and inside and rotten places developed in some of the trim.

The plaintiff brought this action for damages, based on an alleged breach of warranty, claiming that the trouble had been caused by the material so applied. A jury returned a verdict for her in the sum of $2,250 “for repairs to exterior of home” and the court entered judgment thereon. The defendants’ assignments of error raise questions as to admission of testimony, the sufficiency of the evidence, rulings on instructions and the reference in argument to a picture which had been rejected.

Defendants contend, first, that there was prejudicial error in allowing two of plaintiff’s witnesses, Johnson and Brown, to give opinions as to the cause of the mold and discoloring without being qualified as experts to express such opinions. Both of these witnesses were general contractors. Johnson testified that he had made a thorough examination of the house and an estimate of what it would cost to repair it, $4,218.48. He was then asked, “What is the matter with the house, and what was the cause of the trouble?” He replied, “Prom the application of the material that has already been applied.” Defendants’ counsel objected and the court observed that a general contractor would ordinarily know from general knowledge and ought to be able to tell why he thinks it necessary to repair a house he is called upon to repair. The question was then repeated and the witness proceeded to testify as to the conditions he found on the *985 outside and on tlie inside of the house, caused, in his opinion, by excessive dampness on the inside and in the exterior walls, discoloring the shingles and changing the appearance of the house. Objection was again made because “no foundation has been laid to show what caused the damage.” The court ruled: “He is saying why he feels the repairs should be made. ’ ’ At the end of the examination in chief, defendants’ counsel reneAved his objection to admitting the estimate on the ground that the Avitness had testified that in his opinion the damage was due to mildew and no causal connection had been shown between Re-Nu-It and this mildeAV.

The Avitness Brown testified that he, too, had made a thorough inspection of the house and an estimate of the cost of repair, AA&dch he put at $4,201. His estimate was objected to “on the same grounds as previously stated.” He was then asked, Avith-out objection, the same question asked of Johnson, what was the matter with the house and what caused the trouble, and he replied that he did not knoAv but would say it was mildew or a fungus growth.

It is clear, we think, that these witnesses were not undertaking to testify as experts in chemistry or bacteriology, as defendants claim, but within their own field as to the conditions they found and the cost of making repairs. The defendants also introduced two general contractors. One was asked what, on the basis of his examination of the house, caused the dampness Avhich in turn caused the mold. He said it was the lack of foundation vents. It was inquired of the other whether in his opinion as a general contractor the application of Re-Nu-It had any connection with condensation and mold. He answered in the negative. If there was error in allowing the questions of plaintiff’s counsel, and we see none, it was cured by the similar questions by defendants’ counsel. Adams v. Ristine, 138 Va. 273, 289, 122 S. E. 126, 130.

A trial court will not be reversed for allowing a witness to testify as an expert unless it appears clearly that he was not qualified in the field in which he gives evidence, as the. question of his qualification is largely in the discretion of the trial court. Richmond Locomotive Works v. Ford, 94 Va. 627, 641, 27 S. E. 509, 510-11; Savage v. Bowen, 103 Va. 540, 545, 49 S. E. 668, 669; C. & O. Ry. Co. v. Meyer, 150 Va. 656, 671, 143 S. E. 478, 483.

Defendants next contend that there was not sufficient *986 evidence to show that the material they applied was the canse of the mildew and discoloration. They do not deny that there was a condition of mildew and discoloration, although they disagree with plaintiff’s witnesses as to the extent of it. The defendants made no express warranty in their contract for applying the material, hut they were bound by an implied warranty that it was reasonably fit for the purpose for which it was applied. duPont Co. v. Universal Moulded Prod. 191 Va. 525, 566, 62 S. E. 2d 233, 252. If its use on the plaintiff’s house brought about the conditions of mold, discoloration and deterioration shown by the evidence, then there was a breach of this implied warranty and defendants are responsible for the damage. Causal connection may, like any other fact, be proved by direct or circumstantial evidence, or both. The plaintiff, possessed of a verdict approved by the trial court, is of course entitled to have the evidence viewed in the light most favorable to her.

Plaintiff’s house was built by.her and her husband and they moved into it in January, 1947. In the four years following there had been no dampness or mold or discoloring until Re-Nu-It was applied. That fact of itself is evidence to be considered on. the ultimate fact of causal connection. There was a degree of logic in the answer of one of the general contractors who was asked by defendants’ counsel on cross-examintaion why the kitchen walls were discolored. He replied that if they did not show discoloration and dampness prior to the application of Re-Nu-It, and did afterwards, he would think it would be because of the application of Re-Nu-It.

The plaintiff introduced the chief chemist and director of the Department of Bacteriology of a firm of testing and inspection engineers of recognized standing. He testified that he examined samples of shingles, trim and other materials taken from the house and that there were discoloring and mold on the. exterior and in the interior and disintegration of some of the wood from ground rot fungus. He made tests of the material that had been applied and found it to have a high organic content which would very definitely support the growth of mildew and fungus which would tend to disintegrate' the material on which it was put. He testified that Re-Nu-It was not like ordinary paint; that it had a greater sealing effect, a much thicker film, providing a barrier highly resistant to the passage of moisture and preventing proper “breathing,” causing mildew, deterioration *987

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Bluebook (online)
76 S.E.2d 200, 194 Va. 983, 1953 Va. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swersky-v-higgins-va-1953.