This is a civil action to recover damages in the amount of $3,000 from a defendant contractor alleged to have resulted from a breach of the contractоr’s implied warranty of habitability of a dwelling house. After a trial to a jury in the Superior Court, a verdict was returned for the defendant. The plaintiffs then filed a motion for a new trial and subsequently a motion for a directed verdict. Their motion for a new trial was granted on the issue of damages only, and their motion for a directed verdict was granted with respect to liability. The defendant is now prosecuting an appeal in this court from that order.
The record discloses that defendant corporation engaged in the business of building dwelling houses and apartments and that sometime in 1967 it had completed the erection of a dwelling house on Wood Cove Drive in the town of Coventry. Thereaftеr, on December 27, 1967, plaintiffs purchased this dwelling house from defendant builder and began occupancy thereof on January 22, 1968. It does not appear to be disputed that on January 28 of that year, during a heavy rainstorm, water flowed into the basement of the building, causing severe damage to a family room and basement, as well as to рersonal property stored therein. Testimony was adduced through plaintiffs also for the purpose of establishing that certain appliances installed in the premises were either inoperative or defective. These included a hot water heater defectively installed and a
The trial justice instructed the jury that “[i]n this state in the sale of a new dwelling house there is an implied warranty made by the seller to the buyer that the dwelling house is reasonably fit for human habitation. * * * [A] long with the contract of sale * * * is the unstated implied warranty of fitness * * To that portion of the charge dеfendant excepted. In this court defendant contends that the instruction thus given to the jury by the court, that the law in this state imposes an implied warranty of habitability on the builder of a house that he subsequently sells, was erroneous. In support of this contention defendant urges that the principle of caveat emptor has never been overrulеd or abandoned in this jurisdiction.
The question here, in our opinion, is not whether the principle of caveat emptor has been overruled or abandoned in this state but whether we will join the increasing number of jurisdictions that hold that the builder of a house selling it to another impliedly warrants that such dwelling is reasonably fit for its intended use, human habitation. This is an era when mass production and commercialism have extended themselves into the realm of home construction and in which a customer purchasing a new dwelling from the builder thereof must rely on his skill and workmanship.
We think that the courts which have adopted the principle of implied warranty of habitability have done so on sound ground. In
Bethlahmy
v.
Bechtel,
While defendant in the instant case urges that we retain and apply the doctrine of caveat emptor to the transaction under consideration, he has given us no sound reason for continuing to apply that doctrine. A rеading of the more recent cases in this area of the law provides us with numerous examples of the harshness and injustice of this ancient common-law doctrine when applied to the sale of a new
house by the builder-vendor. In
Rothberg
v.
Olenik,
Our research discloses an abundance of judicial opinion exhaustively researched and excellently written that persuades us to adopt the doctrine that where a builder-vendor sells a house, either new or under constructiоn, he implicitly warrants that the construction has been or will be done in a workmanlike manner and that the dwelling will be reasonably fit for human habitation. For this reason we will refrain from duplicating the excellent work of so many eminent jurists and text writers. 1
It appears from the record that plaintiffs, after the verdict was returned, for the first time moved for a directed verdict. Nothing in the provisions of Super. R. Civ. P. 50 makes any provision for making a motion for a directed verdict after the verdict has beеn returned. That rule provides only that the motion may be made at the close of the opponent’s testimony or at the close of all of the evidence and that the motion may be decided when made or may be reserved for decision after the return of the verdict. The granting, therefore, of the motion for directed verdict wаs erroneous.
The plaintiffs have argued in this court that the trial justice properly treated their motion for a directed verdict as a motion for judgment
non obstante veredicto.
In
Russo
v.
Odell,
105 R. I. 349, 357,
Lastly, we turn to consider defendant’s contention that the trial justice erroneously granted plaintiffs’ motion for a new triаl. We cannot agree. It is clear from the record
that on the motion the trial justice, in an exercise of his independent judgment, considered and passed upon all of the material evidence in the case in the light of his charge to the jury and upon the weight and credibility of the witnesses.
Barbato
v.
Epstein,
97 R. I. 191,
Nothing in the record discloses that the defendant complied with the burden stated above. A close scrutiny fails to disclose that the defendant directed our attention to any specific items of evidence that the trial justice either misconceived or overlooked. On the other hand, the trial justice pointed out the paucity of evidence adduced by the defendant of sufficient probative force to negate the liability of the defendant for a breach of the implied warranty. He stated that he believed the testimony of the plaintiffs as to the cause of the damage and to conditions existing in the structure that would sustain a finding of a breach of that warranty. Following our long-standing rule that upon a motion for a new trial we will not disturb the findings of the trial justice unless he was clearly wrong, we hold that the trial justice
The defеndant’s appeal is denied and dismissed, and the cause is remanded to the Superior Court for a new trial.
Notes
See, e.g., Wawak
v.
Stewart,