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COVIL et al. v. ROBERT & COMPANY ASSOCIATES; and vice versa.
41267.
41297.
Action for damages. Fulton Civil Court. Before Judge Parker.
BELL, Presiding Judge.
1. (a) The law imposes upon persons performing architectural and engineering services the duty to exercise the care, skill and ability ordinarily employed by members of the profession.
(b) In an action against an architect or engineer for negligence in preparing plans, it is necessary that the plaintiff establish the standard of care applicable to the defendant by the introduction of expert opinion evidence; there was evidence here sufficient to meet this requirement.
(c) A provision in defendant's plans and specifications for the construction project here, which was so ambiguous that it could be interpreted either to require or not to require certain bracing, could amount to a negligent failure to provide for the necessary bracing.
(d) The trial court erred in granting defendant's motion for nonsuit.
2. It was necessary that plaintiffs allege in their petitions that construction of the project or the defective portion of the project was accomplished in compliance with the plans furnished by the defendant; without this essential allegation the petitions failed to state a cause of action, and the trial court erred in overruling defendant's motion to dismiss in the nature of general demurrer.
3. The different questions involved in consideration of a motion for nonsuit and a motion to dismiss in the nature of general demurrer are contrasted here.
The three plaintiffs, Billy Covil, Anthony Adames, and Levy Hagan, brought separate actions against Robert & Company Associates to recover for damages to real property, which plaintiffs claim was caused by defendant's negligence.
By consent of the parties and by order of the court, the three actions were consolidated for trial and for other purposes.
Defendant admitted that it prepared the plans and specifications for the project, and it was established by undisputed evidence that defendant also supervised the actual construction.
Plaintiffs introduced into evidence defendant's drawings and specifications, which were complementary to each other and together constituted defendant's design of the project. The drawings did not detail any bracing or harness for the T-joint the disconnection of which resulted in damage to plaintiffs' land. However, the specifications provided, "Bends, valves and other points where deemed necessary shall be blocked or harnessed to resist thrust."
The failure to brace the T-joint during construction of the project was undisputed.
Plaintiffs' witness Enloe, a registered professional engineer with nineteen years experience as engineer and chief engineer for the DeKalb County water system, testified, "Q. In your professional opinion--and I'm referring to this drawing here, Plaintiff's Exhibit No. 6--would you say that it was skillful or unskillful design on the part of Robert & Company to have left out the bracing subsequently shown in a supplementary drawing known as Plaintiff's Exhibit 3 here? A. Well, if this was the final way to hold that T on, I'd say yes, that it should have been shown."
Other evidence showed that before the repumping station was put into operation, two representatives of defendant and representatives of the contractor and the county made a "final inspection" of the project "down to the light bulbs." According to the testimony of defendant's resident engineer, as part of the inspection the inspectors looked at the T-joint which afterwards became disconnected. After the inspection defendant notified the contractor, "The project was found substantially complete and ready for operation with the exception of the following items [not including as an exception the failure to brace the T-joint in question] which may be corrected during the 60-day maintenance period."
Following this approval the contractor put the repumping station into operation for the specified maintenance period. The disconnection of the T-joint during that period, the resulting escape of approximately three million gallons of water from the repumping station, and damage to plaintiffs' land adjoining the site of the project were established by undisputed evidence.
At the close of plaintiffs' evidence, the defendant made an oral motion to dismiss in the nature of a general demurrer and simultaneously made a motion for nonsuit. After argument of counsel, the trial court entered an order denying the defendant's motion to dismiss but granting defendant's motion for nonsuit.
The plaintiffs except to the judgment of the trial court granting the nonsuit and dismissing the actions. By cross bill of exceptions the defendant excepts to the judgment of the trial court denying its motion to dismiss.
1. "A motion for nonsuit merely takes the place of what is known to the common law practice as a demurrer to the evidence." Clark v. Randy, 196 Ga. 546, 559 (27 SE2d 17). "When a court passes upon a motion for a nonsuit it decides only one question--that is, do the allegation and the proof correspond?" Kelly v. Strouse, 116 Ga. 872, 883 (43 SE 280). In determining whether the trial court erred in granting a nonsuit, we must construe the evidence most strongly in favor of the plaintiffs. National Land &c. Co. v. Zugar, 171 Ga. 228 (2) (155 SE 7).
" 'The law imposes upon persons performing architectural, engineering, and other professional and skilled services the obligation to exercise a reasonable degree of care, skill and ability which generally is taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by their respective professions.' Housing Authority of City of Carrollton v. Ayers, 211 Ga. 728, 733 (6) (88 SE2d 368)." Bodin v. Gill, 216 Ga. 467, 472 (1) (117 SE2d 325). See Block v. Happ, 144 Ga. 145, 146 (2) (86 SE 316). This standard of care properly is the subject of expert opinion. By analogy with other cases in which recovery has been sought against persons for their negligence in performing skilled services, it was necessary here that plaintiffs establish the standard of care applicable to defendant by the introduction of expert opinion evidence. See Shea v. Phillips, 213 Ga. 269, 271 (2) (98 SE2d 552); Howell v. Jackson, 65 Ga. App. 422, 423 (16 SE2d 45); Hayes v. Brown, 108 Ga. App. 360, 363 (1) (133 SE2d 102). If this standard was not established by the necessary proof, the trial court was justified in the grant of a non-suit. Pilgrim v. Landham, 63 Ga. App. 451, 455 (11 SE2d 420).
Under the foregoing requirement, the mere fact that the T-joint became disconnected would not be sufficient to show that a failure to brace it could amount to negligence. Yet, there was some opinion evidence which would support an inference of negligence in defendant's failure to provide the bracing. The testimony of the witness Enloe is quoted in the summary of facts. This evidence, however meager and indefinite, is sufficient to establish the necessary standard as against a motion for nonsuit since this slight evidence must be considered in the light most favorable to plaintiffs.
Defendant argues that plaintiffs' evidence (the plans and specifications prepared by defendant) disproves plaintiffs' allegations to the effect that defendant failed to provide bracing for the T-joint which became disconnected.
Although defendant might originally have conceived bracing for the T-joint, yet if it was negligent in expressing that concept by use of a provision which could be so interpreted as either to require or not to require the bracing and if the builder interpreted the provision as not requiring the bracing and plaintiffs consequently were damaged, then defendant's failure clearly to express the concept on paper would have the same effect as would a failure to conceive the bracing in the first place. The jury would have been authorized to find that the ambiguous provision was in fact a negligent failure to provide bracing for the T-joint which became disconnected.
Even if the contractor's interpretation and construction according to that interpretation constituted negligence of the contractor (failure to discover a defect or discrepancy in the plans) for which the latter also would be liable for the injuries to plaintiffs' land, this would not absolve defendant, for defendant must be held to have anticipated the interpretation made by the builder whether or not that interpretation would constitute negligence on the builder's part. See, e.g., Southern R. Co. v. Webb, 116 Ga. 152 (42 SE 395, 59 LRA 109).
In other respects the proof corresponding with the allegations of plaintiffs' petitions requires no discussion.
The trial court erred in granting defendant's motion for nonsuit.
2. Plaintiffs' petitions do not allege that the T-joint was installed according to the defendant's plans and specifications. When a case is based upon negligence of an architect or engineer in preparing plans, it is essential that the plaintiff prove that construction of the project designed was accomplished in compliance with the plans and specifications furnished by the defendant, at least with respect to that portion of the work claimed to be defective. Bayne v. Everham, 197 Mich. 181 (163 NW 1002). See Sanders v. Kalamazoo Tank & Silo Co., 205 Mich. 339 (171 NW 523); Lake v. McElfatrick, 139 N. Y. 349 (34 NE 922). Likewise, it is necessary that a plaintiff allege this element as an ultimate fact in his petition, for without it there would appear in the petition no causational link between the alleged negligence and the injuries complained of. When considered on general demurrer or oral motion in the nature of a general demurrer, a petition must be construed most strongly against the pleader; in applying this rule the petition will be construed in the light of its omissions as well as its averments. Macklen v. Lahman, 196 Ga. 535, 537 (27 SE2d 35); Toler v. Goodin, 200 Ga. 527, 534 (37 SE2d 609). The pleader's failure to allege essential facts and his reliance upon allegations that fall short of the essential facts will be construed to import the absence of those facts. Hulsey v. Interstate Life &c. Ins. Co., 207 Ga. 167, 170 (60 SE2d 353); Sterling Materials Co. v. McKinley, 218 Ga. 574 (1) (129 SE2d 770).
Here the petition alleged, "Construction of said repumping station was begun according to the plans and specifications prepared by defendant." This averment was insufficient as a substitute for the essential allegation that construction of the project was completed in compliance with defendant's plans or that the T-joint was installed in compliance with the plans.
The trial court erred in denying defendant's motion to dismiss in the nature of a general demurrer.
3. The holdings of error and necessity for reversal based on the main bill and cross bill of exceptions as discussed in Divisions 1 and 2 of this opinion may strike a discordant note in the reader's mind. This dissonance is due to the limitation of the question for decision on a motion for nonsuit. In sustaining a motion for nonsuit "the court does not hold that the plaintiff is not entitled, under the law, to recover on the facts alleged; neither does the overruling of the motion decide that the plaintiff is entitled under the law to recover. The right to recover under the facts alleged is not involved in the decision of such a motion. If a plaintiff 'proves his case as laid,' he is entitled to prevail as against a nonsuit; but it by no means follows from this that he is entitled to recover on the facts 'as laid.' Merely proving a fact will not in law authorize a recovery unless the existence of the fact proved gives a legal cause of action. Kelly v. Strouse, 116 Ga. 872, 883 (43 SE 280) [supra]; McGruder v. McGruder, 215 Ga. 716 (113 SE2d 119); Gray v. Schlapp, 92 Ga. App. 261 (88 SE2d 536) . . . The question of substantive law . . . is not involved . . . while many have expressed dissatisfaction with the rule of practice that excludes this question on consideration of a motion for nonsuit, it is the law of the State. Rountree v. Seaboard Air-Line R. Co., 31 Ga. App. 231, 237 [120 SE 654]; Florida Coca-Cola Bottling Co. v. Ricker, 136 Ga. 411, 420 (71 SE 734)." Hall v. Sidney Clodfelter, Inc., 110 Ga. App. 842, 843-844 (140 SE2d 54).
Here the apparent incongruity demonstrates sharply the limitation involved in a motion for nonsuit (Division 1 of the opinion) where the question for consideration is the relationship of the evidence to the pleadings and where substantive law may not be considered, as that limitation contrasts with another and different limitation involved in an oral motion to dismiss in the nature of a general demurrer (Division 2) where the question is the relationship of pleadings and substantive law and where the evidence may not be considered.
Judgment reversed on the main bill of exceptions. Judgment reversed on the cross bill of exceptions. Frankum and Hall, JJ., concur.
Woodruff, Savell, Lane & Williams, Edward L. Savell, John L. Westmoreland, Sr., contra.
Claude Hambrick, for plaintiffs in error.
ARGUED APRIL 7, 1965 -- DECIDED SEPTEMBER 8, 1965.
Friday May 22 20:51 EDT


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