Opinion
37296.
DECIDED SEPTEMBER 19, 1958.
Action for damages. DeKalb Superior Court. Before Judge Hubert. May 29, 1958.
James A. Mackay, McCurdy, Candler Harris, J. Robin Harris, for plaintiff in error.
Sam Phillips McKenzie, contra.
1. On general demurrer the facts as alleged in the petition must be assumed to be true. When such facts set forth a cause of action on any theory, the general demurrer must not be sustained but must be overruled by the trial court.
2. (a) A petition, in order to withstand a general demurrer, is required to show reasonable inferences but need not carry complete particularities.
(b) It is a jury question as to the degree of skill and care required of an architect.
(c) Where a petition complains of negligence of duty expressly provided for (in the instant case by architects' plans and specifications) the action must be one treated as ex contractu and not ex delicto.
(d) When a petition alleges substantially that the cost of remedying a defect is a certain sum, such is not subject to a special demurrer which points out that the word "loss" should not be used in lieu of the phraseology setting out the difference between the value of a building which was improperly designed and built and the value of the building had it been properly designed and built.
3. The evidence is amply sufficient to sustain the verdict of the jury as to the general grounds.
4. (a) It is the duty of an architect employed under the conditions as revealed by this record to inspect and see that the building is erected according to his plans and specifications.
(b) It is not erroneous for an expert witness to testify that certain portions of a building were so constructed that they must be removed in order to correct patent or latent defects.
(c, d) A statement by an expert witness that repairs made in correcting certain building errors amounted to from $13,000 to $14,000, when considered along with other evidence from the same witness and other witnesses, is not sufficiently vague to be cause for reversal of the instant case, under the facts and pleadings.
(e) It may be assumed that a jury will listen to evidence and pay attention to documents submitted in evidence so as to sift out the applicable documents from the inapplicable ones and arrive at a fair verdict, particularly where, as here, there are 132 pages of such evidence, all going to practically the same point.
(f) Where negligence is alleged in the petition and the record is replete with evidence of negligence, it is not error for the trial court to charge on the subject of negligence as shown in special ground 6.
(g) Where there is evidence of negligence resulting in alleged damage as well as other possible recoverable amounts, it is not error for a court to charge the jury that if they should find in favor of damages being recoverable, to bring in a lump sum for all moneys to be recovered, under the facts of this case.
DECIDED SEPTEMBER 19, 1958.
Mr. and Mrs. J. W. Mimms brought suit on May 5, 1954, against David S. Cuttino, Jr., d/b/a David S. Cuttino, Jr., and Associates, hereinafter called the defendant, seeking to recover $15,856.83 by reason of certain damages alleged to have been sustained by the plaintiffs in connection with the planning and construction of a house by the defendant.
The defendant filed his answer and both general and special demurrers to the petition which were overruled by the court and to which judgment the defendant filed his bill of exceptions assigning error thereon as being erroneous and contrary to law.
Subsequently Mr. J. W. Mimms died and the petition was amended to show "Mrs. J. W. Mimms, administratrix of the estate of J. W. Mimms; and Mrs. J. W. Mimms, individually" as being parties plaintiff and to whom we shall hereinafter refer as plaintiffs.
The case came on for trial and the jury returned a verdict in favor of the plaintiffs in the amount of $7,000. The defendant made a motion for new trial which was granted by the court and which resulted in a verdict and judgment for the plaintiffs in the amount of $12,700. The defendant filed a motion for new trial which he later amended and which was denied by the court. It is to the judgment of the court denying the defendant's motion for a new trial, as amended, that the defendant excepts.
The petition alleged substantially as follows: That in early 1951 the defendant entered into a contract with the plaintiffs for the planning and supervising of the construction of a home for the plaintiffs for consideration of 6% of the construction price; that the plaintiffs entered into a construction contract with one St. Clair Woolsey incorporating the plans and specifications prepared by the defendant; that it was the duty of the defendant to supervise construction, to estimate and certify as correct all bills submitted by the contractor, to refuse to approve any work which did not meet the plans and specifications, and to refuse to approve any demands for payments unless the labor and materials incorporated in the work, and material suitably stored at the job site were of a value of 10% in excess of the payment demanded; that the original contract with the contractor was entered into at the request of the defendant and based on his recommendation and statements that the contractor was capable and qualified; that the plaintiffs paid the defendant $1,473.75; that on August 14, 1951, the plaintiffs received a letter from the defendant informing them that he was abandoning the project and could no longer supervise the job as per his original contract; that the plaintiffs made repeated demands upon the defendant for active supervision but that the defendant never actively supervised the construction or made close inspections; that the defendant's failure to draw adequate plans and specifications (alleged in detail in the petition) and failure to supervise the work of the contractor resulted in conditions which caused the plaintiffs to suffer losses; that the plaintiffs paid $2,156.83 for metal doors, oak flooring, asbestos roofing and plastering materials which were never delivered to the job site; that payments for these materials were made on bills submitted by the contractor and approved by the defendant; that the defendant approved a bill for plumbing, roofing, and gutter submitted by the contractor in the amount of $2,000, less 10% held by the plaintiffs according to contract, thus calling for a total payment of $1,800 when the correct amount should have been $1,100; that on August 17, 1951, the plaintiffs received notice from the contractor that he could no longer be bound by terms of his contract; that the contractor had failed to follow the plans and specifications in particulars which were enumerated and described in detail; that the general workmanship throughout the building was inferior and unskilled and completely out of keeping with standard building practices; that because of said defects the plaintiffs were required to pay $13,000 to have the same corrected before completing said home; that the defendant's failure to comply with the terms of his contract with the plaintiffs resulted in the $13,000 loss sustained by the plaintiffs; that when the contractor abandoned his contract the home was not more than 35% completed although the plaintiffs had paid in excess of 50% of the contract price, based on bills submitted by the contractor and approved by the defendant; that the plaintiffs expended $2,856.83 on bills approved by the defendant for materials which were never delivered on the job and for which they seek recovery, and the defendant refused to pay. The total amount prayed for in the petition was $15,856.83 plus costs of court.
The defendant filed his answer to the petition substantially admitting that he entered into a contract with the plaintiffs but denying that it was in writing and alleging that such contract was subsequently modified by the parties allowing the storage of building materials at places other than the building site; denying that the contract was entered into with the contractor at the defendant's request and recommendation; admitting that he was paid $1,473.75 by the plaintiffs; admitting the plaintiffs' receipt of a letter from him abandoning the project; denying the plaintiffs' allegation that they made repeated demands upon the defendant for active job supervision and substantially denying all other allegations of the plaintiffs' petition and demanding strict proof thereof.
The defendant demurred generally to the petition and filed special demurrers as follows:
The defendant demurred specially to paragraph 21 of the plaintiffs' petition alleging that the plaintiffs were required to pay $13,000 to have defects corrected before completing said home because the plaintiffs failed to set forth what defects were corrected, the individual costs of remedying same and to whom said money was paid, which information is necessary for the defendant to adequately prepare his defense.
The defendant demurred specially to the first sentence of paragraph 22 of the plaintiffs' petition alleging that the "defendant architect under the terms of his contract and agreement with the plaintiffs, was bound to draw adequate plans and specifications so that the house in question could be built according to sound construction principles" for the reason that same is a conclusion of law, and for the further reason that said conclusion is erroneous, is prejudicial, is inflammatory, and is not germane to the issue in this case.
The defendant demurred specially to the plaintiff's petition as a whole and in particular to paragraph 22 alleging the $13,000 loss due to the defendant's alleged failure to draw adequate plans and specifications and his alleged failure to comply with the contract in inspecting and supervising the work of the contractor and paragraph 24 alleging the plaintiff's expenditure of $2,856.83 on bills approved by the defendant for materials which were never delivered to the job, for the reason that said petition presents a misjoinder of causes of action for the reason that the amount claimed in paragraph 22 is for alleged ex contractu damages and the amount claimed in paragraph 24 is for ex delicto damages, and plaintiffs should be required to elect which sums they seek in the suit or same should be dismissed.
The defendant further demurred specially to the second sentence of paragraph 22 alleging the $13,000 loss for the reason that same sets forth an erroneous measure of damages and should be stricken.
The evidence shows substantially as follows: O. H. Mimms, son of the deceased J. W. Mimms, testified substantially that he was familiar with the house which his family contracted with the defendant to build; that he was familiar with the condition of the house at the time it was abandoned by the defendant and he identified pictures which were made at that time showing the various alleged construction defects and which were submitted as exhibits; that the witness was present on three occasions when his mother, one of the plaintiffs, called the defendant to the building site to discuss various construction details which were not according to plan; that the defendant assured the plaintiffs that it would be taken care of, or made up, or straightened out; that by the time the contractor left the job nothing had been done to correct the defects and his family hired another contractor on a fixed fee to complete the dwelling. On cross-examination the witness testified that he is not experienced in construction work or architecture but that he was interested in the project as a member of the family and took turns with other members in inspecting the job almost daily.
P. H. Thompson testified that he has been in the contracting business about 27 or 28 years and he examined the unfinished house which had been abandoned by the defendant; that he found footings in places one inch thick where the specifications called for 8 by 20 and in other places where the thickness was adequate it was not tied in to the next level; that he contracted with the plaintiffs to correct the defects and complete the house on a fixed fee basis; that he dug out the complete footing and repoured 6 yards of concrete at an approximate cost of $400 to $500; that the clearance space beneath the house was inadequate and further excavating was necessary to attain a 24 inch space; that piers underneath the house were poured in a way that the bottom came down to a point affecting the weight-bearing competency; that he replaced 15 piers and had to add four more; that he found the chimney footing flush with the chimney which would cause it to settle and come down over a period of 5 or 6 years; that he dug out around the chimney one side at the time and built up a 12-inch footing in order to get an overhang with sufficient strength to support the chimney; that the plumber had cut floor joists and sills on all the bathrooms in such a manner that the witness had to strengthen these stringers and stress members replacing some of them completely where necessary; that in one place it was necessary to put in a 6 inch "I" steel beam to prevent sagging because the sill was cut; that he and a Mr. Cook who was an inspector for DeKalb County inspected the plumbing and found the drainage running "every which way," even back toward the plumbing, and the entire job had to be torn out completely; that he found no exterior mill work except the cornices and boxings in which the nails had not been set and no painting or finishing put on them; that the nails had rusted and left streaks which had penetrated the wood; that lumber of a lesser grade than was called for in the specifications had been used and had not been primed; that the witness had to tear off the cornices and boxings and replace them using the original lumber as scrap lumber; that the foundation wall under the utility room and carport consisted of a little mortar-mix spread thinly, a row or two of brick and then the sills on top of that; that the witness had to tear out the wall completely and replace it; that the entire wall that had been laid for the patio had to be torn out and rebuilt because it was about 5 feet out of square and lacked a metal flash against the side of the house; that the interior mill work was of yellow pine whereas the specifications called for white pine which is a better grade lumber; that the window and door jambs were uneven and out of line; that the walls were out of plumb, to the extent of 9 inches in one instance; that the roof was warped and did not have adequate support and bracing; that the ceiling joists had to be torn out; that the general workmanship of the job led the witness to wonder if there was even a carpenter on the job or that a plumb or level had been used; that his impression of the job compared to standard building practice was that it was one of the worst jobs he had ever seen.
E. L. Bothwell, an architect of 22 years experience, testified that he found the plans and specifications drawn by the defendant to be better than average plans, that he found no material defects in them and nothing that would prevent a contractor from building a house.
Mr. Milton Mimms testified concerning the financial disbursements on the job identifying checks paid to the contractor and various subcontractors and identified one exhibit which was an accounting of materials which were paid for and never delivered to the job. The witness further testified that similar materials had to be purchased; that one bill was rendered for plumbing, roofing and gutter in the amount of $2,000, which was not paid as rendered; that on this bill the plumber was paid $856.34; that as a layman the witness was familiar with the work of the final contractor on the job and he wrote the checks covering the construction undone and redone to the point that it was at the time the defendant abandoned the job and that the checks totaled $13,337.69.
Mrs. J. W. Mimms, widow of the deceased J. W. Mimms, testified that she and her husband signed a contract with the contractor in the office of the defendant and identified the original contract; that she and her husband relied on the defendant's judgment concerning the contractor; that they depended on the defendant to supervise the contractor's work and were told by him that he would supervise his own plans; that as the work progressed the witness found various defects and short footage of which she complained to the defendant, and the defendant told her that what she was finding wrong would be covered up and it was not.
George David Newton, a professional engineer, was employed by the plaintiffs to inspect the plans and construction of their house and he testified concerning his report which showed substantially that the plans and specifications were inadequate as to pier and chimney foundations, the flue for an incinerator, the pitch of the dormer roofs, the footings, the window framings, the type of roof to be applied to a flat surface, plumbing and heating. He further testified that upon inspection of the house itself he found a good many things that were not according to the plans and specifications; that he found the footings under exterior walls and interior piers inadequate, the mortar weak, 15 steel pipe columns where the specifications called for 19, wooden members buried in dirt beneath one foundation wall where the specifications called for a masonry wall above ground surface; improper size vent stacks on the plumbing, the soil piping underneath the house sloping against the direction of flow, cornice studs badly warped and as much as four or five inches out of line, lesser grade of lumber in the millwork than was called for and in the specifications which was warped and out of plumb, the exterior millwork of a lesser grade than was called for and mildewed and stained from the weather, it not having been given a protective priming, termite shields inadequately and ineffectively installed, main load-bearing sills cut as much as 50% and in one or two places as much as 100% by the trades installing plumbing and heating and not supported by additional beams or piers, the decking beneath the flat roof section loose and not nailed at all although the roof had been put on top of it and the gable ends of the house improperly furred out so that instead of the gable catching rain water, the brick would catch it taking it down to the woodwork, risking rot. The witness further testified that he had never seen any worse workmanship; "I don't think I've even seen a barn built that bad."
During the trial counsel for the plaintiff abandoned from the petition the claim for $700 as set forth in paragraph 24.
Harry G. Hunter, a structural engineer, testified that he inspected the house for the defendant and found that the general workmanship was about average; that although there were certain corrections to be made, the work was being carried on in a normal manner and some of the work was above average and that roughly 40% of the work had been completed.
David S. Cuttino, the defendant, testified that he has been practicing as an architect since 1930 and that he drew two sets of plans for the plaintiffs, the second one being finally used, and then he went into much detail describing his plans and defending them as being adequate for the intended purpose. He further testified that he undertook to supervise the construction of the job, inspecting it at least once a week and often more; that he responded to all calls by the plaintiffs, made inspections and requested changes or corrective work by the contractor, making a list of things found wrong and mailing it to the contractor; and that the contractor had not done all of those things prior to August 14, 1951, at which time the defendant wrote the plaintiffs that he was withdrawing from the job. Specifically, the defendant testified that the chimney was built on bedrock which was as good a foundation as could be wanted. As to the materials purchased by the plaintiffs in advance of need for them, the defendant testified that it was agreed between the plaintiffs and contractor that the contractor would store certain materials in his own warehouse and that no one had ever complained to the defendant about materials not being stored on the job. He further identified the pictures which were tendered into evidence, basing his defense on the contention that the pictures were made in the unfinished stages and some of the pictured errors actually were caused by the additional excavating done by his successor. The defendant also testified substantially that he did not know why only 15 piers were installed when the plans called for 19; that he had known the contractor prior to the Mimms job and had never received any complaints about his work nor had he received any complaints about work done since the Mimms job; that his reasons for withdrawing from the job were stated in the letter which was tendered into evidence. On cross-examination the defendant stated that it was his duty to refuse to approve any work which did not meet the plans and specifications; that due to the 10% which was retained at all times as a safeguard and the fact that payments which he approved for the most part represented materials purchased, he did not feel that the uncompleted job could be evidence of his having approved all work as correct.
1. We will deal first with the demurrers filed by the defendant to the plaintiffs' petition. We have set out the petition somewhat in detail. It is our opinion that the petition is sufficient to withstand a general demurrer notwithstanding what was said by this court in Vandalsem v. Caldwell, 33 Ga. App. 88 (7) ( 125 S.E. 716), a case cited by counsel for the defendant which states as follows: "The test of the sufficiency of a petition as against a general demurrer is whether the defendant can admit all the allegations therein contained and at the same time escape all liability." In Callan Court Co. v. Citizens Southern Nat. Bank, 184 Ga. 87, 126 ( 190 S.E. 831) the Supreme Court said: "The demurrer admits to be true only properly pleaded allegations. It does not admit opinions or conclusions of the pleader." However, on the other hand this court has many times held that if a petition sets forth a cause of action "on any theory" the petition may not be dismissed on general demurrer. See Gay v. Healan, 88 Ga. App. 533 ( 77 S.E.2d 47). In construing a general demurrer it must be assumed that the facts are true as alleged. Under the facts as alleged in the petition the court properly overruled the general demurrers.
2. (a) In paragraph 2 the defendant demurred specially to paragraph 21 of the petition. That paragraph of the petition alleges that the plaintiffs were required to pay $13,000 to have building defects corrected. The demurrer is to the effect that that paragraph of the petition did not specify what defects were corrected, the individual costs of remedying each defect and to whom the money was paid. It is true, as pointed out by counsel for the defendant, that the defendant is entitled to be fully informed of the facts which are relied upon by a plaintiff as a part of the cause of action. See McMath Plantation Co. v. Allison Co., 26 Ga. App. 744 ( 107 S.E. 420). All that is required of a petition is reasonable certainty as to essential statements. It is not necessary that any particular paragraph of a petition carry complete particularities where reasonable inferences from statements made readily suggest the facts. See Flint River Northeastern R. Co. v. Maples, 10 Ga. App. 573 ( 73 S.E. 957). In Fite v. McEntyre, 77 Ga. App. 585, 595 ( 49 S.E.2d 159) this court said: "All that a special demurrer requires of a petition is reasonable definiteness and certainty, and it does not require that the pleader must indulge in needless particularities." This special demurrer is not meritorious.
(b) The special demurrer set out in paragraph 3 assigns error because it is alleged that the first sentence of paragraph 22 of the petition is a conclusion of law, is erroneous, is prejudicial, is inflammatory and is not germane to the issue in the case. The work of an architect must be suitable and efficient for the purposes in hand. However, the degree of skill and that which may be required of an architect in the preparation of his plans is, in our opinion, a question for the jury. The court properly overruled this special demurrer and the question thus was properly submitted to a jury.
(c) Paragraph 4 demurred specially to the petition as a whole and particularly to paragraphs 22 and 24 of the petition for the reason that it is alleged that the petition presents a misjoinder of causes of action because, says the special demurrer, paragraph 22 alleges ex contractu damages and paragraph 24 alleges ex delicto damages and an election should be made as to whether the suit is brought ex contractu or ex delicto. It is true that claims arising ex contractu can not be joined in the same suit with claims arising ex delicto. See Hartley v. Folds, 24 Ga. App. 456 (101 S.E. 130) and Montgomery v. Alexander Lumber Co., 140 Ga. 51 ( 78 S.E. 413). Counsel for the defendant cites Louisville Nashville R. Co. v. Spinks, 104 Ga. 692 ( 30 S.E. 968), and Milledgeville Water Co. v. Fowler, 129 Ga. 111 ( 58 S.E. 643) to sustain the position that the trial court should have sustained these special demurrers. We have read these cases and do not feel that the facts and pleadings shown there are not in accordance with the facts and pleadings in the instant case and are not cause for reversal. We feel constrained to point out that the plaintiffs alleged various ways in which the architect breached the contract, all apparently regarding the defective plans and specifications and the construction of the building. Moreover, the defendant in his testimony admitted a duty to refuse to approve any work which did not meet the specifications set forth by the architect. This whole case rests on the theory of law of whether or not the architect breached the duty imposed upon him as to getting the building erected according to plans and specifications suitable for the purpose intended. In the ruling in Raines v. Rice, 65 Ga. App. 68 ( 15 S.E.2d 246) the petition rests upon an action ex contractu. See also Milledgeville Water Co. v. Fowler, 129 Ga. 111, supra, and Fain v. Wilkerson, 22 Ga. App. 193 ( 95 S.E. 752). It is clear to us that the petition was based on an ex contractu relationship and this special demurrer was properly overruled.
(d) Paragraph 5 of the demurrer alleges that paragraph 22 of the petition alleges loss because of neglect of duty on the part of the architect and that the proper measure of damages did not take into effect the actual losses suffered by the plaintiffs but should be predicated solely upon the "cost of remedying the defect" or "the difference between the value of the building as designed and built and the value it would have had if it had been properly designed and constructed." Counsel for all parties rely on what was said in 3 Am. Jur. 1012, § 20. When we read what was said there, and compare it with the pleadings in the instant case, it is clear to us that the petition alleges substantially that the cost of remedying the defect is $13,000 or more. This special demurrer was properly overruled by the court.
3. We come next to determine the merits of the general grounds. We have set out the evidence in detail and will discuss some of it regarding the special grounds. As we study this case it becomes increasingly clear that the verdict is amply warranted and that therefore the general grounds have no merit.
4. (a) Special ground 1 assigns error because the contractor who corrected the alleged errors of the original contractor testified substantially that it was the duty of the architect to inspect the building as it progressed and to see that the contractor carried out the plans and specifications.
This witness, who had qualified as an expert, testified at great length regarding specific instances of workmanship on the part of his predecessors, which work was not consistent with sound construction principles. Certainly the witness should have known of the practice in the trade and the duty of an architect, employed and working as was the defendant here to inspect and see that the house was built according to plans and specifications. If error, this would seem to be harmless error, in view of this whole record. This special ground is without merit.
(b) Special ground 2 assigns error because the same witness as referred to in (a) above, testified that certain door jambs were put in incorrectly and that "they would have probably had to come down anyway." It must be remembered that this witness was testifying as an expert in order to prove the case as pleaded. The witness pointed out the defects in the workmanship regarding the door jambs (as well as other defects). This observation on his part was so self-evident that the special making of the statement was harmless, in view of the whole record.
(c) Special ground 3 assigns error because the same expert witness referred to in passing upon special grounds 1 and 2 testified that the cost of work which he did, was $13,000 to $14,000. In view of the fact that the work was done some seven years before the witness was testifying and in view of testimony of other witnesses as to cost of labor, and in view of the fact that the jury brought in a verdict in favor of the plaintiffs for less than $13,000, we consider this statement of the witness harmless to the defendant. This special ground is not meritorious.
(d) Special ground 4 is substantially the same as special ground 3, in principle. This special ground is not meritorious.
(e) Special ground 5 assigns error because it is alleged that checks in the amount of $13,212.63 were not positively identified by Mr. Mimms as being checks paid out for corrective repair work. The record shows in detail what the checks were paid out for and in view of the fact that the jury returned a verdict for less than $13,212.63 it appears that they knew that some of the money possibly should have been spent for work other than for corrective repair work. Counsel for the defendant cross-examined both the witness Thompson and the witness Mimms regarding the cost of repairs and thus waived objection to evidence regarding the repairs. See Rabun v. Wynn, 209 Ga. 80, 83 ( 70 S.E.2d 745). Moreover, witnesses are not required to give testimony with absolute positiveness. See Carter v. Lipsey, 70 Ga. 417. This assignment of error is not meritorious.
(f) Special ground 6 assigns error because it is alleged that the court erred in giving the following excerpt in charge: "I charge you further that an architect may be held liable for his negligent failure to fulfill a contractual obligation to supervise construction, if you find that he did fail to carry out his contractual obligation." It is contended that this statement by the court was an intimation to the jury that negligence or failure to exercise ordinary care by the defendant had been shown by the evidence. The record shows that one witness testified that "it was one of the worst [original] jobs I have ever seen" and there was much other evidence to the same effect, sufficient for the court to charge regarding liability on the part of the architect for negligence in failing to carry out his obligation. This assignment is not meritorious.
(g) Special ground 7 assigns error because it is alleged that the court erred in charging the jury that, if they found that the plaintiff was entitled to recover, they should bring in a verdict for one sum, not two sums. The evidence indicated damages resulting because of the defendant's breach of duty resulting in over $13,000 repair bills plus $2,156.83 paid for material never delivered. The jury returned a verdict for less than $13,000. Under these circumstances a charge as given by the court is in order. There was evidence to sustain a larger verdict than that returned by the jury. See Peninsular Naval Stores Co. v. State, 20 Ga. App. 501, 505 (4) ( 93 S.E. 159). This assignment of error is not meritorious.
The court did not err in the rulings regarding the demurrers, nor did the court err in denying the motion for new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.