Avent v. Proffitt

• Decision Date: 26 January 1918
• Docket Number: 9887.
• Citation: Avent v. Proffitt, 109 S.C. 48, 95 S.E. 134 (S.C. 1918)
• Parties: AVENT v. PROFFITT.
• Court: South Carolina Supreme Court

95 S.E. 134

109 S.C. 48

AVENT v. PROFFITT.

No. 9887.

Supreme Court of South Carolina

January 26, 1918

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by Mrs. Betty Avent against L. D. Proffitt. From a judgment for plaintiff, defendant appeals. Affirmed.

Nicholls & Nicholls and John Gary Evans, all of Spartanburg, for appellant.

Sanders & De Pass, of Spartanburg, for respondent.

FRASER J.

The respondent lives in Spartanburg, and desired to erect a dwelling house for herself and family. Respondent's husband was away on business much of the time. The appellant was employed as architect in the erection of the building. After the family had been living in the house about three years, some of the plastering fell. When the plastering fell it was observed that the plastering was not uniform in thickness. One of the plaintiff's witnesses said, "the pie of plastering ranged from one-half inch thick to 3 1/4 inches." This inequality was alleged to be a defect in construction, and the appellant, the owner's architect, is sought to be made responsible for failure to properly inspect and failure to condemn the defective construction. On the trial of the case the judgment was for the plaintiff, and the defendant appealed.

I. The first exception complains of error in allowing, on the trial the use of plastering that came from the house but not identified as a part of the plastering that fell. After a large piece of plastering fell, other portions of the plastering were deemed unsafe and were taken down. The witness did not know whether the plastering exhibited was a part of the plastering that fell, or a part that was taken down as unsafe. The inference to be drawn was the same, and there was no error here.

II. The other four exceptions are:

"(2) In that his honor erred in refusing to grant a nonsuit upon the following grounds: First. There is no evidence tending to show that any injury alleged in the complaint was the direct and natural result of any failure to inspect or supervise on the part of the architect in this case. Second. There is no testimony showing any negligence whatever on the part of the architect to perform his duty under his contract. Third. That the contract shows that the only duty for which the defendant was employed was to make a reasonable inspection of the work as it progressed. There is no evidence to show that such was not done. On the contrary the evidence shows that the defendant did reasonably inspect the work and condemned certain part of it, and the matter was made satisfactory by the contractors; that the plaintiff has accepted the work of the defendant, namely, that of inspecting and reasonably supervising the work, and that the evidence of the plaintiff herself is that the injury, if any, may have been the result of other causes absolutely beyond the control of the defendant, or even of the plaintiff herself; that there is no direct testimony showing that the defendant has violated any contract, verbal or written, made by him with the plaintiff. Fourth. That if any liability exists on the part of

...