On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J. Heher, J., concurring in result.
Plaintiffs brought suit in the county district court to recover damages for the cost of replacing a house sewer line alleged to have been defectively constructed by defendant. They received a judgment for $649, but the Appellate Division reversed, 46 N.J. Super. 293 (1957), with one judge dissenting, bringing the plaintiffs here as a matter of right. Since no stenographic record was taken of the proceedings in the district court, the cause was submitted upon an agreed statement of evidence, pursuant to R.R. 1:6-3.
Defendant constructed a house on Bayview Avenue in the Borough of Englewood Cliffs and sold it to plaintiffs in June of 1952 before it had ever been occupied. The residence was connected to the municipal sewage system by a line running, at six to eight feet beneath the surface of the ground, some 62 feet from the cellar wall to the public main.
During the summer of 1953 the Levys discovered water in their cellar and called in a plumber named Van Drone,
who inserted a "snake" into the house line and thereby removed an obstruction. The condition did not recur until September of 1954, when Van Drone was again summoned and employed an "electric rooter" to displace an obstruction located 74 feet from the foundation wall of plaintiffs' home.
In April of 1955 the cellar once more filled with water, and this time Van Drone excavated and exposed a six-foot section of the house line at the point where it joined the public main. This section of pipe was found to be buckled and broken and was replaced. The plumber recommended replacing the entire house line, but this could not be accomplished for two months because of bad weather. During the interim, while the temporary six-foot section of new pipe was in place, plaintiffs' cellar did not flood. Eventually, however, a whole new house line was installed at a cost of $705.08, and no water has backed into the cellar since then.
Plaintiffs instituted their action in August of 1955, alleging the sewer line had been laid improperly and that defendants had violated a duty to see that the house "was constructed in a good and workmanlike manner with suitable materials."
Van Drone, who had been in the plumbing business for 27 years and at one time was the municipal plumbing inspector, testified the house line had been laid at an improper pitch, insufficient to carry off the flow efficiently by force of gravity, and that it had probably buckled and broken as the result of boulders being dropped on it during installation. The only portion of the house sewer line he had seen was the six-foot section exposed to view in April of 1955, and he was unable to testify as to the condition of the remainder of the pipe which had been removed.
The plumbing inspector of Englewood Cliffs, who held stock in the defendant company, was also called as a witness for plaintiffs. He stated that prior to its being covered over he had examined the pipe connecting the Levy house to the municipal sewer and that tests with a level had revealed it to be "properly pitched." He also said that the pipe would not have buckled during installation because it
had been laid upon solid ground. After examining the pieces of pipe admitted into evidence, he voiced the opinion that the six-foot section could have been injured by rocks being thrown on it, but also testified that use of an "electric rooter" could cause the same damage. Finally, he asserted that if, in fact, the house line had not been laid at an adequate pitch, the defect would have immediately manifested ...