Herston v. Whitesell
Decision Date | 27 July 1979 |
Citation | 374 So.2d 267 |
Parties | David Glen HERSTON v. Calvin M. WHITESELL et al. 78-18. |
Court | Alabama Supreme Court |
Charles E. Floyd and C. Neal Pope, Phenix City, for appellant.
William B. Moore, Jr. and James T. Upchurch, III, Montgomery, for appellees.
On a prior appeal of this malpractice suit, we reversed an order granting summary judgment in favor of the defendants. We held that whether an attorney-client relationship existed between the plaintiff and defendants and, if so, whether the defendants breached their duty to use reasonable care and skill under the facts alleged were questions of fact for the jury to decide. Herston v. Whitesell, 348 So.2d 1054 (Ala.1977).
On remand, the trial court granted motions for directed verdicts in favor of each defendant at the close of the plaintiff's case. The plaintiff again appealed as to defendants Whitesell and Gallion, but dismissed his case against co-defendant Dozier. On his appeal, the plaintiff contends that the trial court erred in directing a verdict in favor of the defendants. The question presented is whether the plaintiff adduced evidence sufficient to make a jury question on any theory of liability presented. As stated on the prior appeal:
. . .
The defendants contend that the court correctly granted their motions for directed verdicts because they say the plaintiff's evidence "proves conclusively that the plaintiff had no recoverable claim against the City of Troy." The plaintiff acknowledges that he has the burden of proof to present a jury question as to whether he lost a valid claim against the City of Troy as a consequence of the defendants' breach of duty to him as a client. The issue then is whether the plaintiff offered any evidence which would support a verdict against the City of Troy. The defendants conclude that the plaintiff's evidence was sufficient for submission to the jury on all the other elements he was required to prove. We agree with the defendants that the dispositive issue on this appeal is whether the evidence presented by the plaintiff was sufficient to withstand a motion for directed verdict on the personal injury claim, treating the same as if it were offered in a suit against the City of Troy. We hold that it was and reverse.
On the prior appeal, the following facts were presented by the complaint and affidavits of the parties:
The evidence establishes that after he was informed that the rods had no nuts, Troy's Supervisor for the Water Department, Mr. McLendon, indicated that they would be fixed immediately and, several days later, brought thirteen nuts to the job site. Herston and his workmen placed these nuts on thirteen of the thirty-two rods. Sandblasting and painting continued for some six weeks; and McLendon continued to assure Herston daily that additional nuts would be provided but were presently unavailable. During this time, Herston's workmen sandblasted and painted the entire outside of the water tower and so much of the inside of the water tank as could be reached without standing on the spider bar assembly.
On April 2, 1974, three of Herston's workmen sandblasted the dome of the water tank by standing on a metal board resting on the spider bar assembly. Later that day, Herston began painting the dome, also using the spider bars as a perch from which to work. As he moved the metal board, at least one, if not more, of the rods came loose from the pie plate and Herston fell approximately thirty-five feet to the bottom of the tank....
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