Opinion
October 31, 1952.
Appeal from the Circuit Court for Hillsborough County, Henry C. Tillman, J.
Arthur A. Simpson of Macfarlane, Ferguson, Allison Kelly, Tampa, for appellant.
Charles I. Campbell (of Coachman Campbell), Tampa, for appellee.
This is an appeal from a final judgment in favor of the appellee for alleged breach of contract for water-proofing the exterior walls of two apartment houses.
The contract in question, among other things, contained the following:
"Preparations Before Spraying: Caulking shall be applied around doors and windows where necessary. Structural and expansion cracks shall be caulked and taped where conditions require such treatment. Loose and scaly paint shall be removed, drop cloths placed, and doors and windows masked out."
It should be noted that the written contract specifically provides that doors and windows were to be masked out. The water-proofing was to be applied to the stucco walls and by no stretch of the imagination could it be considered that the water-proofing materials were to be applied to doors and windows, which were "masked out." The contract even provides that windows and door casings are not to be water-proofed.
After the work was done there was some leakage of water from somewhere. In the course of the trial it became important to determine whether the water came in through the stucco walls or around the windows which had been masked out and to which no water-proofing material had been applied. In its instructions to the jury the Court included the following:
"I charge you, gentlemen of the jury, that the word `wall' means, just what it says, and should be taken in its ordinary meaning. Webster's New International Dictionary defines the word `wall' as `one of the upright enclosing parts of a building or room.' A wall is something which will stand by itself, a work or structure of stone, brick or other materials, serving to inclose a space, same to afford a defense, shelter or security; specifically, one of the upright, enclosing sides of a building or room, a part of a building or a portion of a house. Among brick masons and contractors, the word `wall' count solid measure, has been construed as meaning that the space occupied by the doors and windows is to be included in the estimate or considered a part of the wall, the same as though it was built up with solid brick."
The giving of the above instruction is assigned as error. It may be true that brick masons and contractors in determining the number of square feet in a wall may include windows and doors and may be considered by them as a part of the wall as though it was built up with solid brick. Such construction of the word "wall" is not warranted in this case. The water-proofing was to be applied to the stucco walls and windows and doors were to be "masked out", and were not included, and the same together with the casings were not required to be water-proofed. Under this instruction the jury would be justified in rendering a verdict for the plaintiff in the Court below even though there had been no breach of contract of any kind and simply because water had gone through the windows or doors or around the casings. The charge was highly prejudicial and confusing and constitutes reversible error.
Having reached this conclusion it is unnecessary to consider other assignments of error. The verdict and judgment should be set aside and a new trial awarded.
Reversed.
SEBRING, C.J., ROBERTS, J., and GORDON, Associate Justice, concur.