Klein v. Mr. Transmission, Inc.

• Decision Date: 21 August 1975
• Citation: 318 So.2d 676,294 Ala. 437
• Parties: B. H. KLEIN and/or B. H. Klein Realty Corp., et al., etc. v. MR. TRANSMISSION, INC. SC 773.
• Court: Alabama Supreme Court

Page 676

318 So.2d 676

294 Ala. 437

B. H. KLEIN and/or B. H. Klein Realty Corp., et al., etc. v. MR. TRANSMISSION, INC.

SC 773.

Supreme Court of Alabama.

Aug. 21, 1975.

Miller, Hoffmann & Sundock, Montgomery, for appellants.

George H. B. Mathews, Montgomery, for appellee.

SHORES, Justice.

This is an appeal from a judgment entered on a jury verdict in the amount of $15,800 in favor of Mr. Transmission, Inc. (plaintiff) against B. H. Klein Realty Corporation (Klein) and Andrew & Dawson, individually and as partners doing business as a general building contractor. Roosevelt Jackson was also a defendant. He had entered into a subcontract with Andrew & Dawson to finish the wall after the original subcontractor walked off the job when the wall was approximately 70% Complete. The jury returned a verdict in his favor.

Andrew & Dawson had contracted to build an addition to a building owned by Klein. Plaintiff occupied a building located directly north of the new addition and separated from it by approximately one and one-half feet. The north wall of the addition to the Klein building was 115 feet across and three stories high. It consisted of a brick veneer, 2-inch air space, and concrete block.

As of the end of work on May 23, 1973, the third floor portion of the north wall was tied in to the remainder of the building as follows:

At the floor level, the brick and block were resting on the floor. The brick had been 'raised' all the way to the roof; and the block had been 'raised' all the way to the ceiling. At the roof level, the brick was connected to the roof by dovetail anchors. The brick and block were connected to each other by metal ties. Pursuant to the specifications, these metal ties were to be spaced at 16-inch intervals, vertically. The north and east walls connected at the northeast corner of the addition. The west wall was complete through the second floor level, thus there was no connection for the north wall at its northwest corner. The north wall of the new addition collapsed on the night of May 23, and the third floor portion of the wall fell through the roof of the building occupied by the plaintiff.

Plaintiff's suit charged negligence in the construction of the wall in failing to brace it during the construction, and in failing to follow the specifications with regard to placing metal ties at 16-inch intervals.

The action was defended on the assertion that there was no negligence in failing to brace the wall; that it was constructed in accordance with procedures normally followed in the construction of buildings in Montgomery; and that the wall fell not because of any negligence on the part of the defendants, but because of an act of God. According to Taylor Dawson, the fall was caused by 'A wind that you couldn't anticipate and couldn't protect against.'

Andrew & Dawson, on appeal, argue that the trial court erred in denying the motion for directed verdict offered by them, because it is contended that the record is devoid of any evidence that the wall collapsed by virtue of any negligence on their part.

There is no question that the wall fell and damaged the building occupied by the plaintiff. What caused it to fall was a jury question. Each side offered evidence to support its position. From the plaintiff's side came testimony from an expert witness, a structural engineer, who testified that he examined the construction site on May 24, 1973, not at the request of the plaintiff but at the request of the owner of the damaged building; and that, based upon his examination of the building specifications for the addition and an examination of the building itself, it was his opinion that the wall should have been braced. The witness testified:

'A In my opinion, given the circumstances that I know and the peculiar situation of this wall, I think it should have been braced.

'Q Tell the jury what you mean by peculiar situation relating to this wall. What was unique about this wall?

'A As has already been described the wall is a hundred and fifteen feet long, or was a hundred and fifteen feet long, and eleven feet, five inches high. It did not have any intersecting walls or partitions except, of course, the east wall, northeast corner. . . .'

This witness also testified:

'A At the stage of construction, it was not supported at the northwest corner, because of the absence of the west wall at the third floor. The wall was in effect supported only at the floor and, if completed, only at the roof. And I would--my evaluation as a structural engineer, I would think, it would be very weak in its structural strength in this condition until it had attained a full age as far as curing of the wall is concerned.'

He defined curing as meaning that it takes a 28-day period for mortar to obtain its designed strength; and that the mortar in this wall had not obtained that strength, the last part of the wall having just been completed prior to the time the wall fell.

The defendants introduced evidence which tended to show that the building was constructed in accordance with standard acceptable practice for construction, and assert that there was no evidence that any improper construction in the wall itself contributed to its collapse.

However, the building specifications were admitted into evidence and provide in part:

'THE CONTRACTOR MUST TAKE ALL NECESSARY PRECAUTIONS TO INSURE THE SAFETY OF THE WORKMEN EMPLOYED ON THE JOB, TO PREVENT DAMAGE TO PERSONS AND PROPERTY NOT CONNECTED WITH THE JOB AND TO PREVENT THE OCCURRENCE OF ANY ACCIDENTS WHATSOEVER DURING THE PROGRESS OF THE WORK.

'. . .

'THE CONTRACTOR . . . SHALL PROTECT AND CARE FOR SURROUNDING BUILDINGS, SHOULD THERE BE ANY DANGER TO THEM CAUSED BY THE WORK.'

Additionally, Mr. Dawson, one of the contractors, testified that the Southern Standard Building Code applies to construction in Montgomery; and, although there was disagreement among the parties as to whether certain provisions applied, it was conceded by Mr. Dawson that Section 2101.10 did apply to construction in Montgomery. That section provides:

'When a building or structure is to be carried above the roof of an adjoining building, protection for the skylights and roof of such adjoining building shall be provided, at his own expense, by the person constructing or causing the construction of such building or structure; provided that if the owner, lessee or tenant of the adjoining building should refuse permission to have the roofs and skylights protected, the responsibility and expense for the necessary protection shall devolve on the person refusing such permission.'

Mr. Dawson testified that he had not sought permission, nor had the owners of the adjoining buildings refused to allow him, to protect the roofs of their buildings.

Roosevelt Jackson's pretrial deposition was entered in evidence. It disclosed...