Guimarin & Doan, Inc. v. Georgetown Textile & Mfg. Co.

• Decision Date: 09 June 1967
• Docket Number: No. 18665,18665
• Citation: 155 S.E.2d 618,249 S.C. 561
• Court: South Carolina Supreme Court
• Parties: GUIMARIN & DOAN, INC., Respondent, v. GEORGETOWN TEXTILE AND MANUFACTURING COMPANY, Inc., M. B. Kahn, Irwin Kahn, H.Bernard Kahn, and Sol Kahn, d/b/a M. B. Kahn Construction Company, The TraneCompany, Commercial Roofing & Sheet Metal Co., Johnson Service Company, andChas. T.Main, Inc., of whom Commercial Roofing & Sheet Metal Co. and Johnson ServiceCompany are, Appellants.

Page 618

155 S.E.2d 618

249 S.C. 561

GUIMARIN & DOAN, INC., Respondent, v. GEORGETOWN TEXTILE AND MANUFACTURING COMPANY, Inc., M. B.

Kahn, Irwin Kahn, H.Bernard Kahn, and Sol Kahn, d/b/a M. B.

Kahn Construction Company, The TraneCompany, Commercial

Roofing & Sheet Metal Co., Johnson Service Company, andChas.

T.Main, Inc., of whom Commercial Roofing & Sheet Metal Co.

and Johnson ServiceCompany are, Appellants.

No. 18665.

Supreme Court of South Carolina.

June 9, 1967.

Whaley & McCutchen, Donelan & Donelan, J. Edwin Belser, Jr., Columbia, for appellants.

Belser, Belser & Baker, Cooper, Gary, Nexsen & Pruet, Columbia, for respondent.

BRAILSFORD, Justice:

This action arose out of the construction of an industrial plant in Georgetown County, South Carolina, by M. B. Kahn Construction Company, as prime contractor, for Georgetown Textile and Manufacturing Company, Inc., the owner. Chas. T. Main, Inc., was the architect. Kahn subcontracted the heating and air conditioning requirements of the construction to Guimarin & Doan, Inc. Guimarin, in turn, subcontracted installation of the ducts to Commercial Roofing and Sheet Metal Co. and installation of the temperature controls to Johnson Service Company. The air conditioning units and assessories were purchased by Guimarin from The Trane Company. ¹

Claiming that the plant machinery had been damaged by water leakage and falling debris, Georgetown made a claim against Kahn, which the latter settled for $22,500.00. Kahn, in turn, claimed the amount of this settlement against Guimarin, and withheld a balance due on its subcontract. Guimarin then commenced this action for declaratory judgment, naming all of the above mentioned parties as defendants.

Commercial and Johnson each demurred to the complaint on the grounds of misjoinder of causes of action and insufficiency of facts to state a cause of action against the demurrants. This appeal is from an order of the circuit court overruling these demurrers. The other four defendants have filed answers. Commercial and Johnson are the only appellants. The statements in their respective briefs of the questions involved on this appeal vary in verbiage, but pose the same legal issues:

1--Have several causes of action been improperly united in the complaint?

2--Does the complaint state facts sufficient to constitute a cause of action against Commercial or Johnson?

The complaint alleges that a genuine controversy exists between Guimarin and each of the defendants as to the cause and amount of the damage to Georgetown's machinery, for which Kahn has made claim against Guimarin, and as to the consequences upon the respective rights and liabilities of the parties under the related construction contracts. The complaint further alleges that the heating and air conditioning subcontract has been performed by Guimarin and its subcontractors, Commercial and Johnson, in a proper manner, in full compliance with the plans and specifications prepared by Main, and that Guimarin is not responsible for such damage as may have occurred. The complaint puts forward certain alternative theories as to the possible cause of such damage, i.e.: 1. The plans and specifications were inadequate, for which Main is responsible; 2. The air conditioning units and equipment furnished by Trane did not meet the specifications as represented for which Trane is responsible; 3. Kahn was negligent in permitting Georgetown to commence operation of the machinery prior to completion of the plant, proper testing and final clean up; 4. Georgetown was negligent in commencing the operation of the plant under these circumstances.

The complaint further alleges that Georgetown and Kahn contend the water damage was caused by improper and defective installation of air conditioning ducts, and that the damage from falling debris was caused by objects left upon the ducts by Commercial and Johnson in the negligent performance of their subcontracts. The complaint states that if it should be determined by the court that such damage was caused by Commercial and Johnson, or either of them, in the faulty performance of their contracts, then plaintiff will be entitled to indemnity from one or both for such damages as may be assessed against it.

The Uniform Declaratory Judgments Act was adopted here in 1948 and is now codified as Chapter 24 of Article 10, Code of 1962. The complaint invokes this act and seeks a declaration of the rights, duties and responsibilities of the parties with respect to the damage claim, in the light of the construction contracts and the relations of the parties thereunder.

The first ground of appeal, misjoinder of causes of action, is without merit for the compelling reason that the only cause of action stated in the complaint is for a declaration of the interrelated rights and liabilities of the parties under the contracts. Compare Bank of Augusta v. Stacher Motor Co., S.C., 152 S.E.2d 676, in which a like conclusion was reached.

Apparently, appellants view each of the alternative theories stated in the complaint concerning the cause of Georgetown's damage as a cause of action. This is a misconception of the complaint. These allegations are simply in aid of Guimarin's primary objective, i.e., a declaration that the heating and air conditioning contract has been properly performed in compliance with the plans and specifications. Guimarin has no distinct cause of action based upon any of these theories and has not attempted to state one. They are significant only to the extent that they bear upon Guimarin's entitlement to the declaration which it seeks.

As already stated, the remaining ground of appeal challenges the sufficiency of the facts alleged to state a cause of action against Commercial and Johnson.

A complaint for declaratory judgment is good against demurrer for insufficiency of facts if its allegations show the existence of a justiciable controversy between the parties. Bank of Augusta v. Satcher Motor Co., S.C., 152 S.E.2d 676, and cited authorities. A justiciable controversy is a real and substantial controversy which is appropriate for judicial determination, as distinguished from a dispute or difference of a contingent, hypothetical or abstract character. Borchard, Declaratory Judgments, 40 (2d ed. 1941). We think it manifest that the allegations of the complaint show the existence of such a controversy.

Appellants contend that the real controversy is between Guimarin and Kahn, and that the only controversy involving Commercial or Johnson is the factual issue of proper performance of their respective subcontracts, which should be tried before a jury in an ordinary action. The suggestion that declaratory relief may not be sought if another remedy is available finds no support in the terms of the act.

The Declaratory Judgments Act confers broad power upon the courts 'to declare rights, status and other legal relations whether or not further relief is or could be claimed.' Section 10--2002, Code of 1962. The statute is remedial. It provides that no action shall be open to the objection that only declaratory relief is sought. Section 10--2002. The right to jury trial of issues of fact is preserved. Section 10--2009. The legislative purpose is declared to be 'to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.' Liberality in the construction and administration of the act is expressly enjoined. Section 10--2013.

It is generally held that the granting of a declaratory judgment rests in the sound discretion of the court, to...