Fowler v. Benton

Melvin, J., by special assignment, delivered the opinion of the Court. This is the second time that this case, involving an action of fraud, has been appealed to this Court. On the first appeal, reported as Fowler v. Benton, 229 Md. 571 , this Court reversed the trial court’s granting of a directed verdict for the defendant, Benton, and awarded the plaintiffs a new trial. The plaintiff-appellants are Mr. and Mrs. Kenneth L. Fowler and their eleven children.

Mrs. Fowler, who is not a member of the bar, represented herself and her family in proper person at the trial below and on this appeal. On February 14, 1957, Mr. and Mrs. Fowler contracted with the defendant-appellee, Benton, a builder by trade, to purchase a partially completed house and lot owned by him in a subdivision known as Seabrook Acres in Prince George’s County. Several months previously, at a time when the building plans for the house called for four bedrooms, Benton had installed on the property a septic tank system under a permit issued to him by the Prince George’s County Health Department. The contract between Benton and the Fowlers provided that he make certain alterations in the second floor layout of the house to provide more sleeping accommodations for the Fowlers’ large family, the size of which was known to Benton.

(At the time of the contract there were ⁵⁴⁴ nine children.) When the alterations were completed the house had “five or six” bedrooms, to serve which the Health Department regulations required a larger septic tank (900-gallon capacity) than the tank Benton had already installed (750-gal-lon capacity). Mr. Fowler testified that before executing the contract he told Benton that he “had a large family and did he feel that the septic 'tank system would accomplish [accommodate] a large family?” According to Mr. Fowler, Benton replied that “the septic tank had been put in according to the Health Department regulations and he saw no reason why the septic tank wouldn’t work and it would be perfectly adequate for the size family I had.” Actually, however, the septic system had never been approved for the increased accommodations. The Fowlers moved into the premises on March 25, 1957. Shortly thereafter the septic tank system, apparently overburdened, overflowed and otherwise proved to be considerably less than “adequate.” The substance of the appellants’ claim, as contained in their second amended declaration, was that Benton knowingly misrepresented to them that their septic tank system would be adequate for them.

Among other claimed damages the declaration alleges that “the major injury resulting from the defendant's fraudulent representation of the septic tank system was, and still is, the serious illness with which the plaintiff, Kenneth Leo Fowler, was, and is, afflicted because of the unsanitary and hazardous conditions under which the plaintiffs were compelled to live.” (Emphasis supplied.) There was evidence in the case from which the jury could have found that the source of Mr. Fowler’s illness (amebiasis) was the unsanitary conditions caused by faulty septic systems generally in the neighborhood as well as the unsanitary conditions caused by the faulty septic system on the Fowler lot alone. At the new trial the trial judge in his instructions to the jury submitted the case on two issues: 1. Was there any fraud imposed by the defendant upon the plaintiffs regarding the septic system ? 2. Was Mr. Fowler’s illness proximately caused by the alleged faulty septic system on their property ? ⁵⁴⁵ The jury answered “Yes” to the first issue and awarded the Fowlers damages in the amount of $2,500.

The jury’s answer to the second issue was “No.” In this appeal the appellants allege numerous grounds for reversal and remand. One of them, that the verdict in special issue No. 2 was against the weight of the evidence, is not within the scope of review by this Court and cannot be considered. The issue presented to the jury was one of fact and while the Court of Appeals will review a case tried by the lower court without a jury on the evidence as well as on the law, the verdict of a jury on a question of fact is conclusive on appeal. The jury alone have the right and power to judge of the weight of the evidence.

Safeway Stores, Inc. v. Barrack, 210 Md. 168 , and cases therein cited. Before the retrial date the appellee filed a “Motion for Separate Trial of Issue of Law” pursuant to Maryland Rule 502. Upon consideration of the motion Judge Powers (who did not preside at the retrial) passed the following order, filed March 30, 1965: “ORDERED, that testimony of damages in this cause is limited to those damages which the plaintiffs incurred up to the time of their discovery of the inadequacy of the septic tank system on their property, and that the time of the discovery of the inadequacy of said system by the plaintiffs shall be a matter for the jury to determine; that no evidence of damages shall be admitted in evidence in the trial of this case which occurred subsequent to a reasonable period of time after January 3, 1958 within which plaintiffs could have connected their system to the Washington Suburban Sanitary Commission line, the date of January 3, 1958 being the date the plaintiffs received notice from the Health Department of Prince George’s County that the septic tank system installed on their property was inadequate; that testimony of damages occurring subsequent to the time herein before outlined shall not be admitted in evidence unless such damages bear a causal relationship to damages incurred prior to the time as herein set forth; and it is further ⁵⁴⁶ “ORDERED, that damages for the cost of correcting the alleged inadequate septic tank system shall be limited to the cost of connecting their property to the line of the Washington Suburban Sanitary Commission.” The first question presented for our review is whether or not the lower court erred “in placing upon the appellants the limitations which were set forth” in the above quoted order “and then continued in the two special issues submitted to the jury.” The appellants argue that “With the Order of Court governing the trial, many legitimate items of damage were discarded by the trial judge.” We deem it unnecessary to decide, in vacuo, whether or not the order in all respects correctly stated the law of the case concerning allowable damages, for it is evident from an examination of the record that the order did not “govern” the trial judge in his rulings on the evidence or his instructions to the jury. Moreover, appellants refer us to no specific “item of damage” offered by them, nor do we find any in the record, which the trial judge “discarded” because of Judge Powers’ order.

As will be seen later in this opinion, the trial judge’s rulings on evidence were based on considerations quite apart from any “limitations” contained in the order. Under these circumstances, any possible error in the content of the order itself does not constitute reversible error. Furthermore, as we understand the appellants’ argument on this point, their real complaint is that special issue No. 2 and the trial judge’s accompanying instructions were erroneous in that they did not allow the jury to award damages for Mr. Fowler’s illness unless it first found that the illness was “proximately caused by the faulty septic system on the Fowler property." (Emphasis supplied.) It is the appellants’ theory of the case that Benton’s alleged fraud consisted not only of actively misrepresenting the septic system on the Fowler lot but consisted also of his failure to inform the appellants of the faulty septic systems on the other lots in the development. From this premise, appellants argue that they are entitled to monetary damages for Mr. Fowler’s illness if the illness resulted from unsanitary conditions caused by faulty septic systems generally ⁵⁴⁷ in the neighborhood, and not only if the illness resulted from the unsanitary conditions caused by the faulty septic system on the Fowler lot.

Failure of the trial judge to so instruct the jury was, say appellants, reversible error. The difficulty with appellants’ argument on this point is that, in spite of Mrs. Fowler’s vigorous insistence to the contrary, this alleged error, as a ground for appeal, was not properly preserved at the trial below for appellate review. The record shows that immediately after instructing the jury and submitting the issues the trial judge directed Mrs. Fowler and appellee’s counsel to approach the bench, whereupon the following proceedings were had out of the hearing of the jury: “(The Court) Dictate to the reporter any objections you may have to the instructions. “(Mrs. Fowler) The only objection I have is the exclusion of punitive damages.” There then followed further colloquy at the bench between the judge and Mrs. Fowler during which she made no objections to the issues submitted or the instructions given. Nor did she request that they be amended or supplemented in any manner.

There being nothing in the record 1 to show that the appellants requested the trial judge to instruct the jury or submit issues on their theory of the case, we are unable to pass upon the correctness of the theory on this appeal. Rules 554 and 560 of the Maryland Rules of Procedure. Moreover, even if we assume that the question were before us we find no merit in the appellants’ theory regarding this aspect of the case. The basis of Benton’s alleged fraud consisted of his active misrepresentation of the adequacy of the septic system on the Fowler lot alone.

As this Court said in the first appeal (Fowler v. Benton, supra, p. 581), “This assertion by Benton * * * re ⁵⁴⁸ ferred specifically to the septic tank system actually installed by Benton [italics ours], and was tantamount to an assertion that he, a man of many years’ experience as a builder, knew of no reason why the plaintiffs would not find the system ‘adequate,’ and one of the reasons why they should find it adequate was that it had been approved by the Health Department.” As further pointed out in that opinion, the material fact misrepresented by Benton was that the Health Department had approved the installation, when in actuality the system had not been approved with regard to adequacy and capacity for a family of eleven. Benton was not asked and volunteered no information concerning the septic system on any other lots in the development. Other than his own testimony at the trial that “at times” property owners “in the whole area were having trouble with their septic systems,” the evidence does not show precisely what he 'knew about these other septic systems in February, 1957, when he made his allegedly fraudulent statement. While it may be presumed Benton was aware that the “trouble” on the other lots was overflowing septic systems, there is no evidence that at that time he knew the cause or causes of the trouble, much less that he knew that this cause or these causes also applied to the Fowler septic system.

Obviously, there are many reasons why a .septic tank system on a particular lot might overflow. The reasons applicable to one lot may be entirely different than those ■applicable to another. Moreover, there is no expert testimony in the record regarding the precise cause of overflowing on any ■of the other lots. Under the particular circumstances revealed by the record before us, we agree with the learned trial judge that, as a matter of law, when Benton was asked about the adequacy of the septic system on the Fowler lot he was under no legal 2 duty to disclose that other lot owners were having difficulties with their septic systems.

This being so it would have been error to instruct the jury in a manner allowing it to award ■damages resulting from the faulty