Hudgins v. Bacon

• Decision Date: 10 July 1984
• Docket Number: No. 68098,68098
• Parties: HUDGINS et al. v. BACON et al.
• Court: Georgia Court of Appeals

Page 359

321 S.E.2d 359

171 Ga.App. 856

HUDGINS et al. v. BACON et al.

No. 68098.

Court of Appeals of Georgia.

July 10, 1984.

Rehearing Denied July 31, 1984.

Certiorari Denied Sept. 13, 1984.

Stephen C. Steele, Marietta, Donald E. Strickland, Albany, for appellants.

R. Kelly Raulerson, T. Lee Bishop, Jr., Albany, for appellees.

BIRDSONG, Judge.

This case involves the issue decided in the case of Holmes v. Worthey, 159 Ga.App. 262, 282 S.E.2d 919, affirmed 249 Ga. 104, 287 S.E.2d 9. Plaintiffs (Hudgins) sued the builder-sellers (Bacon and Loomis) of a new house for negligence and for breach of contract for failure to build the house in a workmanlike manner.

We will state at the outset that because there is evidence supporting the plaintiffs' verdict, we must reverse the trial court's judgment notwithstanding the jury verdict. But the plaintiffs' verdict will not be reinstated because the trial court also granted a new trial in the event its judgment n.o.v. were reversed, and the evidence does not "require" the plaintiff's verdict. OCGA § 5-5-50. Helton v. Zellmer, 238 Ga. 735, 736, 235 S.E.2d 35; Hicks v. American Interstate Ins. Co., 158 Ga.App. 220, 225, 279 S.E.2d 517.

The plaintiffs James and Wanda Hudgins of Albany entered into a contract with Bacon and Loomis to build and finish a "spec" house. The record in the case shows that this written contract (which the plaintiffs unsuccessfully sought to place in evidence) expressly required defendants to complete the house "in a good workmanlike manner." The trial court granted a directed verdict as to the contract count because of the misapprehension that under Holmes the contract merged into the deed at delivery. The plaintiffs then sought to show, pursuant to the language in Holmes, 159 Ga.App., pp. 271-272, 282 S.E.2d 919, that there were defects in the house which they could not have discovered in the exercise of reasonable diligence but which the defendants knew or should have known were present. Throughout the trial, however, defendants argued that the plaintiffs had to prove the "professional standard of care." Ultimately the trial court agreed that no actionable negligence had been shown and rendered a judgment n.o.v. Several grounds in support of this judgment n.o.v. are urged by the defendants. Held:

1. Within a few months after plaintiffs moved into the house, the brick veneer began to crack and pull away from the house frame; it pulled away from the windows; large cracks appeared inside the house along the master bedroom wall; the bathroom tile cracked, and marble thresholds broke apart. The patio wall and the carport cracked and split and the footing itself cracked. The damage to the house as agreed by all parties and shown in photo exhibits, is extensive.

Only that evidence necessary to the opinion will be set out. The contractor Bacon testified it was his standard procedure to install rebar (one-half inch strips of reinforcement steel) in the concrete footings of all houses he builds because rebar reinforces the concrete in the footings and strengthens the footings for the weight that will be placed on it. Rebar is installed in continuous twenty-foot sections with the ends tied together. Two strips of rebar are placed parallel in the wet concrete, four inches down with a six-inch gap between the rebars. Both Bacon and his "independent contractor" Drawdy testified that Bacon told Drawdy to put rebar in this house. Drawdy testified he did put rebar in the footings continuously throughout the house.

Thomas Driggers, a mechanical and structural engineer, testified that the brick veneer was placed on the outer edge of the footing, "almost through to the edge." His letter report stated: "The cracks first observed on the rear of the house indicated a sheared footing indicating no rebar or rebar not [encased] in the concrete.... The rear wall appears to have a sheared footing and the left hand side dropped while the [righthand] side appears to have risen." (Emphasis supplied.) He added at trial: "What's happened, the footing has actually come apart .... my opinion at the time was that there was no steel in the footing and that's why it cracked, because of uneven loads; the soil had not been compacted." (Emphasis supplied.) He described what he meant by "uneven loads": "The brick was placed on the outer edge of that piece of concrete, which would cause the footing to rotate slightly because of the offset loading on that piece of concrete. That could have twisted it and broken it." This witness testified in essence that whatever were the problems with the soil or uneven loads, it was ultimately the lack of steel reinforcement (rebar) in the footings which caused the footings to shear or break.

The soils and materials engineer, Eldon Evans, testified that he drilled three three-inch diameter adjacent core samples into the concrete footings from top to bottom, across the width of the footing inside the brick veneer, and found no rebar. However, the soils engineer determined also that the soil around plaintiffs' house contained a large amount of mineral which expands in very wet weather; it was his opinion that this "expansive soil" caused the house foundation to shift. Even so, his testimony did not preclude the conclusion, consistent with the other evidence, that the foundation would not have shifted if there had been reinforcing steel (rebar) throughout the house.

It is strenuously argued on appeal (and the trial court apparently found) that the plaintiffs did not show actionable negligence because there was no showing of a standard of professional care required of builders and no evidence that any negligence of defendants caused the damage. Defendants contend that it was undisputed that it was not a required or customary building practice in Albany to conduct soil tests before building a house, and that there was no direct evidence that the brick wall should have been centered on the concrete footing. Defendants contend that the only competent evidence as to the cause of the damage was the evidence concerning the "expansive soil"; however, this is patently not true in view of the clear evidence of the mechanical and structural engineer that the lack of rebar caused the footings to crack. This evidence as to causation was competent. Coursey Bldg. Assoc. v. Baker, 165 Ga.App. 521, 523, 301 S.E.2d 688; Pembrook Mgt. v. Cossaboon, 157 Ga.App. 675, 679, 278 S.E.2d 100.

The verdict of negligence is sustained by the evidence. Bacon admitted that his own standard procedure was to put rebar in all footings so as to strengthen the walls and because of its reinforcement qualities. Bacon's testimony that he told the subcontractor Drawdy to put rebar in this house, and Drawdy's insistence that he did put rebar in this house; the contradictory evidence that there was (at least in some places) no rebar in the footings; and the causative evidence that this absence of rebar ultimately resulted in the damage, made an issue sufficient for the jury to determine actionable negligence (known or knowable defect) without proving the professional standard of care required of builders. As to this, any insufficiencies or supposed ambivalence in any witness' testimony affected its weight, not its admissibility. Woods v. Andersen, 145 Ga.App. 492, 243 S.E.2d 748. The weight and credibility of the evidence were jury questions. Moses v. State, 245 Ga. 180, 263 S.E.2d 916.

The problem apparent in this case is that the plaintiffs repeatedly sought to show, consistent with the language in Holmes authorizing the cause of action, that there were "latent defects" which plaintiffs could not have discovered with reasonable diligence, and about which defendants knew or should have known. At the same time, defendants argued that plaintiffs should prove that a distinct professional standard of care or procedure applicable to contractors had been violated. On the surface, these two principles apparently seemed to these parties to establish opposed or different standards, but they do not. The defect is the actionable negligence, and the "professional standard" is generally the only competent means by which such negligence can be proved in professional liability cases. This is so for the obvious reason that in cases asserting professional negligence the jury cannot be left to speculate too freely on what constitutes actionable negligence. Hughes v. Malone, 146 Ga.App. 341, 345, 247 S.E.2d 107. But, equally obviously, if the defendant himself testifies that he should have performed and did perform an act which the evidence shows he did not perform, and if causation is shown, the case may become a "clear and palpable" case of negligence and proof of a professional standard is not required. See Hughes v. Malone, supra.

It is well established that " '[t]he law imposes upon persons performing architectural, engineering, and other professional and skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which generally is taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances [this proviso would encompass any special local community considerations, such as excessively expansive soil], is ordinarily employed by their respective professions.' Housing Auth. v. Ayers, 211 Ga. 728, 733, 88 S.E.2d 368 (1955)." (Emphasis supplied.) Rhodes-Haverty Partnership v. Robert etc. Assoc., 163 Ga.App. 310, 311-312, 293 S.E.2d 876. This rule applies to building contractors. Allied Enterprises v. Brooks, 93 Ga.App. 832, 93 S.E.2d 392.

In an action against a builder, "[i]t is essential to present competent evidence as to the acceptability of specific professional conduct." Coursey Bldg. Assoc. v. Baker, supra, 165 Ga.App., p. 523, 301 S.E.2d 688. The contractor Bacon presented evidence as to the acceptability of his own specific conduct in this case, by testifying that he always puts rebar in...