Erhart v. Hummonds

• Decision Date: 02 May 1960
• Docket Number: No. 5-2054,5-2054
• Citation: 334 S.W.2d 869,232 Ark. 133
• Parties: Frank ERHART et al., Appellants, v. Benjamin HUMMONDS et al., Appellees.
• Court: Arkansas Supreme Court

Page 869

334 S.W.2d 869

232 Ark. 133

Frank ERHART et al., Appellants, v. Benjamin HUMMONDS et al., Appellees.

No. 5-2054.

Supreme Court of Arkansas.

May 2, 1960.

Rehearing Denied May 30, 1960.

Jacob Sharp, Jr., J. W. Barron, Little Rock, for appellants.

Martin, Dodds & Kidd; Howell, Price & Worsham, Little Rock, Gordon & Gordon, Morrilton, for appellees.

HOLT, Justice.

This appeal comes from a judgment against appellants, architects, on a jury verdict awarding substantial damages to one injured workman and to the representatives of three other workmen who were killed. The record reflects that the Seventh & Main Street Realty Company, owner of the premises at Sixth and Main Street, entered into an agreement with J. C. Penney and Company to erect a building suitable for Penney to house and sell merchandise. Pursuant to this agreement, Seventh & Main Street Realty Company negotiated with the architectural firm of Erhart, Eichenbaum & Rauch to design and draw the necessary plans for a suitable building. This was done and a contract was let by Seventh & Main Street Realty Company to the J. A. Jones Construction Company of Shreveport, Louisiana. After this contract was let, it develvoped that Penney was not going to furnish supervision of the construction work, contrary to the owner's prior understanding that they would. Seventh & Main Street Realty employed the present appellants, architects, to guard its interest by supervising construction of the building, in addition to their architectural duties. For this additional work, appellants were to receive an additional fee over and above their architectural fee. Work under the contract proceeded and the Jones Construction Company subcontracted the excavation to one Claude Machen. Due to the depth of the excavation and because of danger to adjacent buildings and workmen, the plans for the excavation were set out in some detail in the contract. As the excavation proceeded in depth, it became necessary to shore the walls to prevent sliding and caving of the earth. Serious questions were raised by the field supervisor of the architects, Vance A. Davenport, as to the adequacy of the shoring on the east wall, then 17 feet deep and perpendicular. Comments by Davenport were to the effect that the shoring of this wall was no better than a 'whitewash' and 'it wasn't worth a d....' With some dispatch, a call was placed by Mr. Eichenbaum, one of the architects, to the general office of Jones Construction Company at Shreveport, requesting that a new job superintendent be brought to the job at once; otherwise, they would ask the owners to stop work on the job immediately, as allowed under the contract. The next day, Friday, the new superintendent arrived on the job and promised to make shoring of the east wall the first order of business Monday morning. There was evidence that a slow drizzle of rain fell over the weekend causing the excavation walls to soften. Monday morning, as Vance Davenport, appellants' supervisor and superintendent, drove his automobile [which weighed 4,600 lbs.] into the alley near the edge of the east embankment wall, this wall caved in killing three employees and seriously injuring a fourth. It was stipulated: 'It is further stipulated and agreed by the defendants Erhart, Eichenbaum & Rauch that Vance Davenport was their agent, servant, and employee and acting within the scope of his employment on the J. C. Penney Company job site at the time of the accident and prior thereto.'

Suit was filed by the injured workman on behalf of himself and by the personal representatives of the three estates of the three workmen who were killed alleging, in effect, that appellants, architects, were negligent in failing to inspect and direct the erection by the contractor of the necessary protection for the workmen according to the plans and specifications, in failing to require compliance in accordance with Little Rock Ordinance #2801 and that the negligence of the agent and supervisor, Vance A. Davenport, in driving his automobile through the alley above the excavation when he knew vibrations therefrom might cause the wall to fall, was imputable to them, and that appellants were negligent in failing to stop the work under their powers set forth in the contract until the dangerous conditions had been corrected. Appellants answered, in effect, with a general denial.

Upon a trial of the issues, as indicated, the jury found in favor of appellees and the following judgments rendered accordingly:

                'Benjamin Hummonds   $10,000.00
                Monteen Criswell      48,000.00
                Lucy Lewis            48,000.00
                Vernie Lowman       12,000.00.'
                

The points for reversal may be summed up as follows: (1) The appellees have no cause of action on the basis of contract provisions (2) The architects did not breach any contractual duty to the owner (3) There is no substantial evidence that the presence of the Davenport car in the alley caused the cave-in (4) That numerous instructions given by the court and numerous instructions refused by the court were error (5) The verdicts are excessive.

Appellants' contention under point one has been settled adversely to them in our recent case of Hogan v. Hill, Ark., 318 S.W.2d 580, 584. Hogan, a contractor, entered into a contract with the Arkansas Highway Commission to do certain work. Hogan violated the safety clause contained in a provision of the contract and as a result, Hill, not a party to the contract, was injured. We there stated: 'It will be noted that Hill's complaint states a cause of action in tort based not only on the common law of negligence, but based also on Hogan Company's failure to comply with the regulations in the contract relative to public safety. This, we think he had a right to do. See: Prosser on The Law of Torts, 1955, Second Edition § 81, at page 478 and page 482; Ann.Cas.1913C, p. 217; Pugh v. Texarkana Light & Traction Co., 86 Ark. 36, 109 S.W. 1019; Hill v. Whitney, 213 Ark. 368, 210 S.W.2d 800, and Collison v. Curtner, 141 Ark. 122, 216 S.W. 1059, 8 A.L.R. 760.'

Assignment two presents the question of whether the architect breached any duty to the owner, and further the issue if there was a duty whether it did not arise until the excavation was completed. The issue here, we think, is not whether the architect breached any duty to the owner, but whether there was a breach of duty owed to the workmen by the architect arising out of the safety provisions of the contract. In the Hogan case above, Hogan did not breach any duty to the highway commission, but did breach a duty which it owed to the traveling public and for whom the safety provisions were intended. In the case here presented, we hold that there was substantial evidence that appellants, architects, breached a duty owed to the workmen whom the safety provisions of the contract specifically named. Appellants were further obligated to inspect the excavation upon completion and prior to the commencement of concrete work. Section 1-02(d) of the contract, dealing with inspection and excavation, provides: 'Upon completion of excavation, and prior to commencement of concrete work, excavations will be inspected by the Architect to insure that suitable earth foundation conditions have been obtained, and that compliance with the requirements of the specifications and the drawings have been maintained. No concrete shall be placed until this inspection has been made and approval of the Architect has been obtained.'

Mr. Davenport, appellants' employee and supervisor, testified that the east wall footings were poured Friday afternoon before the accident on Monday; that he was the architects' inspector or supervisor to see that the plans and specifications were followed; that he did not approve making a vertical cut on the wall, that it was a dangerous thing to do and dangerous to workmen underneath; that the vibrations of any vehicle in the alley would be a contributing factor to the cave-in; that he was familiar with the effect of rain on the banks of an excavation, that...