7s8 1262 Glen DIXON a. Charles A. LEDBETTER and wife 77-t14 s61 S.w. 2d 2e4 Opinion delivered February 13, 1978 (In Banc) 1. Conrnacrs - BUTLDTNc coNTRAcroR oRDTNARy cARE. The fact that a contractor uses customary m ethods is a matte r to be considered, but that standard does not necessarily meet the test of ordinary care. 2. Conrnacrs - BUTLDTNG coNTRAcroR - REAsoNABLEJUDGMENT REeutRED. - A contractor must use reasonable judgment in building on fill ground and may be expected to give warning if the soil is inadequate. 3. CoNrnecrs - RESTDENTTAL BUTLDTNc coNTRAcroR - wARNtNo TO HOMEOWNERS TIIAT FILL WOULD SETTLE INSUFFICTENT. Where a contractor built a concrete driveway, not reinforced with steel or wire and upon fill ground which he did not pack, varying up to 12 feet in depth, and the lill settled and cracked the driveway to such an extent that it became necessary to replace half of it, the conractor's warning that the lill would settle was insulficient for the owners to assume the risk of such serious settling a matter about which the contractor nray fairly have bee n expected to be better informed than the homeowners. 4. Coxrnacrs - coNTRAcron's rrlsrt.rry FoR DEFEcT IN coN-srRucrroN - DEFEcT Nor ATTRTBUTABLE To HousE pr,lws. In a suit against a contractor, alleging the improper constru c tion of two balconies on a residence, the slope not being suflicient to cause rainwater to drain away from the house, the contractor's insistence that he is not liable because he merely followed the house plans given him by the homeowners is not tenable, since the plans would hardly have prohibited the contractor from incorporating suflicient slope in the construction. 5. Conrnecrs - coNsrRucrroN coNTRAcrs HousE ptaNs NEED Nor TNcLUDE pr.AN To coRREcr FAULTy coN s rRucrroN. a contractor has not suggested a preferable remedy, th - Where erc is no validity to his objection to the recommendation that he install flanged copper sheets on the floor of balconies on a residence he constructed in order to conduct water away from the house, his objection being based on the ground that such sheets were not included in the house plans, since the purpose of the sheets is to correct defects caused by faulty constructiori. 6. EvtopxcB - ExpERT wrrNEss - oprNroN TEsrmoNy MAy BE BAs,
Anr.l Dxon u. LnpnBTTER 759 ED upoN I{EARSAv. - At times, an expert may base his opinion on facts learned from others, despite their being hearsay. 7. Evmrxcr UNIronu Rulns or EvtonNcr, Rur-n 703 EXPERT oPINION T E STIMONY BASED ON HEARSAY, ADMISSIBILI T Y OF. Rule 703, Uniform Rules of Evidence, provides that an exPe -rt may base an opinion or inference on facts or data perceived by him or made known to him at or before a hearing and that if the facts or data are of a type reasonably relied uPon by experts in the forming of opinions, they need not be admissible in evidence. [Ark. Stat. Ann. $ 28-1001 (Supp. 1977).1 8. EvprNcB - Uxrronu RulBs or Evtorncr, Rutn 703 puRposE. - The intention of Rule 703, Uniform Rules of Ev i dence, is to bring judicial practice into line with the piactice of experts when not in court, and to permit the admission of evidence through the expert's testimony which would otherwise be admissible only through a time-consuming process of authentication. 9. EvrpsxcB Uxrronu Rums or EvtoENcE, Ruln 703 trsr FoR ADMrss r oN oF ExpERT TEsrIMoNy. The test stated in Rule 703, Uniform Rules of Evidence, conce r ning the admissibility of testimony of an expert based on facts or data previously known to him, is whether the expert's reliance upon such facts or data is reasonable. 10. CoNTRACTs DEFEcrs IN coNSTRUCTIoN oF REsIDENcE LIABILITY OF CONTRACTOR FOR REPAIRS. WhCTC A CONTTACTOT who built a residence had ample oppor t unity to make repairs but did not do so, the court did not err in allowing the owners to recover from him the amount expended for the repairs, such amount not having been shown to be excessive. Appeal from Boone Chancery Court, Frank J. Huckaba, Chancellor; aflirmed. Bill F. Doshicr, for appellant. bdbcttcr €l Associalcs, Ltd., by: Thomas D. Ledbetter, for appellees. Geoncn Rosn SumH, Justice. ln 1974 the appellant, a residential contractor, built a S60,000 home in Harrison for the appellees, pursuant to plans and specilications furnished by them. After the Ledbetters had occupied the house for a few months several comparatively minor defects developed. The defects were not corrected to the satisfaction of the Ledbetters, who eventually brought this suit against the con-
760. Dxor u. LnosBTTER 1262 tractor for damages. Dixon's appeal from a decree in favor of the Ledbetters brings up for rcview the chancellor's rulings primarily with n$pect to two defects. First, a concrete driveway, not reinforced with steel or yire, wx! pou.red upon fill ground varying up to 12 feet in depth. The fill settled and cracked the driveway to such an extent that even Dixon testilied that about half of it would have to be replaced. Dixon insists, however, that he did the work in the manner that was customary in the community and that he told the Ledbetters in advance that the lill would settle. That a contractor uses customary methods is a matter to be considered, but that standard does not necessarily meet the test of ordinary cane. AMI Civil 2d, 1204. (1974); Ba*er v. Pfulgcon Thomas Co.,422 F. 2d 744 (6th Cir., 1970). Moreover, a contractor must use reasonable judgment in building on fill ground and may be expected to give warning if the soil is inadequate. Rubin v. Colcs,253 N.Y.S. 808, 142 Misc. Rep. 139 (re3l ). Here the weight of the proof is not clearly contrary to the chancellor's finding that Dixon was at fault. Dixon testified that he told the dirt hauler, Youngblood, that he needed to pack the particular lill more with his tractor, but Youngblood denied having rcceived such instructions. Youngblood also testified that settling could be controlled to some extent by means of a roller, but Dixon conceded that no roller was used. Dixon apparently told the Ledbetters that the lill would settle, but it is clear that he did not warn them of the possibility that the driveway might be so seriously damaged ds to require partial replacement. The evidence supports ihe conclusion that some more explicit warning should have been given if Dixon intended for the Ledbetters to assume the risk of serious settling a matter about which he may fairly have been expected to b e better informed than the Ledbetters. Second, there is proof indicating that two balconies were not properly built, in that the slope was not sufficient to cause rain water to drain away from the house. Dixon's insistence that he merely followed the plans is not tenable. The plans have not hen abstracted and would hardly have prohibited
Anx.f Dxor u. LrpsrrrER 761 the contractor from incorporating suflicient slope in the construction. The Ledbetters' expert witness, Landis, recommended that the defect be corrected by the installation of a coPPer pan (apparently simply a flanged sheet of seamless copper) on the-flywood floor of each balcony. The sheets could be walked bn and would conduct water away from the house. It is not a valid objection that such sheets were not included in the plans, lor their p urpose is to correct defects caused by hulty construction. Dixon disputes the existence of the defects and has not suggested a preferable remedy. It is argued that the chancellor improperly relied uPon hearsay testimony. Landis, an expert in remodeling and repairing houses, testified that it would cost $4fi) to repair each balcony. He said that Conward Allen had given him a figure of $250 to make each pan. Upon objection to this t$timony as being hearsay, the court ruled: "l think if he is qualified'in the business, he may give his estimate of what it would cost to malce the corrections. He will not be permitted to say what somebody else told him. You can cnosi-examine him on whether or not he is an expert." The court's ruling was right. We have previously held that at times an expert may base his opinion on lacts learned from others, despite their being hearsay. Arkansas Statc Highway Commn. v. Rusvll, 240 Ark . 21, 398 S.W . 2d 2Ol (1966). That case-law principle has now been made more explicit by the Uniform Rules of Evidence, which were effective before this case was tried. Ark. Stat. Ann. $ 28-1001 (Supp. 1977). Rule 703 provides: Basis of opinion testimony by experts. The lacts or data in the particular case upon whic h an expert bases an opinion or inference may be those perceived by him or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular tield in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence Prolessor Field has explained the purpose of the rule, es-
762 Dxox u. LrnnnrrER [262 pecially the final sentence: The plain intention of the rule is to bring judicial practice into line with the practice of experts themselves when not in court. For example, a physician in his own practice bases his diagnosis on information from a variety of sounces such as hospital records, X-ray reports, statements by patients, and reports from nurses and technicians. Most of these could be presented in the form of admissible evidence, but only through a time-consuming process of authentication. Field, A Code of Evidence For Arkansas?,29 Ark. L. Rev. 1, 30 (r e75). The test stated in the rule is whether the expert's reliance is reasonable. It was not prima facie unreasonable for the expert witness in this case to ascertain the cost of the required pieces of sheet metal by consulting a supplier. As Field points out, the same cost figure could have been shown by calling the supplier as a witness. That cumbersome procedurc is now readily avoidable; for the expert witness can be cross-examined about his expertise in the matter and about the rcasonableness of a supplier's estimate. No such inquiry was made on cross-examination; so no error appears. We find no merit in the argument that the court should have approved a mene temporary repair of one of the balconies. The appellant's final point, that the court should not have allowed the Ledbetters to recover $107 paid to Lan-dis for certain unspecified repairs, is also without merit. Dix-on seems to have had ample opportunity to make the repairt himself, and the amount is not shown to be excessive. Allirmed. Foarclren and Bvno, lf., dissent. J i! dis-se-n' ting -i o n n x A. Foot BuAN, Justice, concurring Pafr, part. I do not agrce that the preponderance of the eviiiencd supports thc holding th-a1 the contractor was liable on account bf the settling of the driveway. Appellant testilied that he told appellees that the driveway would scttle for as
Anr.l Hexnv u. Poweuq Mavon 763 much as a year, but that they told him they did not want to wait a year lor the settlement to take place belbre the concrete driveway tvas put on the nll. The testimony of appellee Charles A. Ledbetter on the subject was a virtual admission that appellant's subsequent testimony on the subject was cor-rcct. The settlement was a mattcr of "sevcral inches" on a lill that sloped from the strcet level to the-depth of the basement at the opposite end. I don't know what there is about the evidence that required a more explicit warning. Otherwise, I agree with the rcsult reached by the majority. I would disallow the award of damages lor replacement of the driveway. I am authorized to state that Mr. Justice Byrd joins in this opinion. Frank HENRY et al u. Eddie POWELL, Mayor, et al 77-164 561 S.W. 2d 2e6 Opinion delivered February 13, 1978 (In Banc) l. CnexcBny couRTs powER oF REcut-AR JUDcE To vAcATE - SPECIALJUDGE'S ORDER WITHIN 90 OevS PiOWER TO SET MATTER DowN FoR RBcoNsIDERATIoN. A regu la r judge has the Power' within 90 days after the entr y of an order made by special judge in the regular judge's absence, to vacate the orde " r and set the matter down for reconsideration. Counrs coMMoN L/\w RULE REcARDINc SETTING AsIDE JUDGMENTs puRposE. At common law, a judge had unlimited cont r cl over his ju d gments and orders during the same tcrm of court, and, within that time, could set aside his judgments at will, without any motion having been filed by a party to the case and without notice to anyone, the purpose of the rule being to permit a judge to correct his own errors
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.