Mauldin v. Sheffer

• Decision Date: 24 June 1966
• Docket Number: No. 1,No. 41989,41989,1
• Citation: 150 S.E.2d 150,113 Ga.App. 874
• Parties: John G. MAULDIN v. L. M. SHEFFER
• Court: Georgia Court of Appeals

Page 150

150 S.E.2d 150

113 Ga.App. 874

John G. MAULDIN v. L. M. SHEFFER.

No. 41989.

Court of Appeals of Georgia, Division No. 1.

June 24, 1966.

Syllabus by the Court

The petition stated a cause of action ex delicto against the defendant professional engineer for negligence in the performance of his contract with the plaintiff, and the trial court did not err in overruling the general demurrer.

Gambrell, Harlan, Russell & Moye, Charles A. Moye, Jr., Harold N. Hill, Jr., David A. Handley, Atlanta, for appellant.

Paul C. Myers, Wall, Armstrong & Aynes, R. J. Armstrong, Atlanta, for appellee.

FRANKUM, Judge.

L. Miles Sheffer, doing business as L. Miles Sheffer & Associates, sued John G. Mauldin, doing business as Coastal Engineering Company, for damages. The original petition did not clearly set forth a cause of action, either ex contractu or ex delicto, but after the defendant had demurred thereto and the petition had been once amemded, and the defendant had orally moved to dismiss the petition as amended, the plaintiff filed a redrafted petition in which he set forth the following material facts. Plaintiff was a licensed architect engaged in the practice of his profession. He entered into an oral contract with the defendant, a registered professional mechanical engineer actively engaged in such profession, under the terms of which defendant agreed to provide plaintiff with certain engineering designs, plans, drawings and specifications to be drawn, written and produced by defendant who was to serve as consulting engineer for plaintiff's architectural work and projects. Pursuant thereto the defendant did, in June, 1961, undertake to furnish plaintiff with certain engineering designs, plans, drawings, specifications and engineering data for the plaintiff's use in the design and construction of additions to five specified school buildings. In consideration for such services plaintiff agreed to pay defendant $200 per week, and plaintiff did pay to the defendant such sums. Defendant did, in his professional engineering capacity, produce certain designs, drawings, plans, specifications, engineering data, and revisions thereof which he furnished to plaintiff in December, 1961, and in January, April, and May of 1962, all with respect to the aforesaid additions to school buildings. Said plans were incorporated by plaintiff in his overall architectural plans and delivered by plaintiff to the various school boards by whom plaintiff had been employed. Said designs, plans, specifications and engineering data and revisions prepared by the defendant and delivered to plaintiff were in numerous respects erroneous, incorrect and contrary to generally accepted engineering standards, in that they were contrary to and in violation of the fundamental laws of physics and were contrary to and in violation of the promulgated policies, regulations and standards of the Georgia State Shcool Building Authority, the Georgia Department of Education, and the county boards of education by whom plaintiff was employed. The errors in the defendant's work concerned the plumbing, heating and electrical designs of the said projects, a detailed list of said errors being attached as Exhibit A and by reference incorporated in the petition. Plaintiff used defendant's work in his designs and delivered the same to his clients for approval and acceptance, and thereafter, the various projects were advertised for construction bids, but before the contract was let the State Shcool Building Authority recalled the bids and returned the plans to the plaintiff for correction of the engineering errors of defendant. Defendant prepared revisions of his designs which were duly resubmitted by plaintiff, and the same procedure resulted in a rejection of the plans by the State School Building Authority on two subsequent occasions, each revision of defendant being rejected as being unsatisfactory for the various reasons set forth in the petition and the exhibit attached thereto. As the result of the rejection of the plans as aforesaid, plaintiff's clients and the State School Building Authority made certain charges against the plaintiff for expenses incurred in advertising and readvertising the projects for bids, and it was necessary ultimately for plaintiff to employ other engineering personnel to completely redesign, reengineer, redraw and rewrite the designs, plans, specifications and data which defendant had been employed by plaintiff to prepare, and plaintiff incurred, in so doing, specified expenses which are set forth in the petition in detail. Plaintiff also incurred other specified losses and expenses, including the loss of a contract to perform architectural services on certain other school building projects planned by one of the plaintiff's clients who, as a result of the engineering errors and mistakes perpetrated by the defendant, refused to permit plaintiff to serve as architect on said projects, although having previoulsy contracted with plaintiff to so serve. All of plaintiff's special damages alleged to have proximately resulted from the defendant's negligence are set forth in the petition in detail.

Paragraphs 38 and 39 of the petition are as follows: '38. That the defendant, in the preparation of said designs, drawings, specifications, plans and data did willfully and intentionally utilize designs, drawings, specifications, plans and data from other building projects and other engineering projects on which defendant had worked in the past, which were not suited or in any way reasonabl(y) intended to be suited or adapted to the plaintiff's architectural plans for said five school building projects; that the defendant did frivolously utilize said other and non-related plans, drawings, specifications, designs and data with full knowledge that the same were not usable or adaptable to the plaintiff's architectural plans and the said conduct of the defendant was willful and wanton and was in deliberate disregard of his ethical, moral and legal duties as an engineer registered under the laws of Georgia and was in deliberate and willful disregard of his duty to plaintiff to perform said engineering work in a skilled, conscientious and diligent manner according to his ability and was in willful, deliberate and intentional disregard of his duty to use reasonable and ordinary care in the performance of his engineering duties. 39. That the defendant, in thus frivolously, willfully, deliberately and intentionally failing to exercise ordinary care and reasonable care in the performance of his duties as an engineer in the preparation of said plans, designs, drawings, specifications and data for the plaintiff, did perpetrate an act of aggravated tortious conduct within the meaning and scope of Section 105-2002 of the Code of Georgia and plaintiff taxes punitive and exemplary damages against defendant in the sum of Five Hundred Thousand ($500,000.00) Dollars to deter the defendant from repeating such wrongdoing and sued the defendant for said punitive damages.' In paragraph 40 plaintiff alleged that all of his injury and damage was directly and proximately caused by the negligence of the defendant in enumerated particulars therein set out. Exhibit A, referred to in the petition, listed 151 errors alleged to have been committed by the defendant in the preparation of the engineering plans and specifications for the plaintiff. To the redrafted petition the defendant filed general and special demurrers. The trial court overruled the grounds of general demurrer. This judgment is enumerated as error in this appeal.

While it does not appear from the record, counsel for the appellant in their brief before this court state, in effect, that counsel for the plaintiff declared in open court that it was their intention to proceed in tort rather than ex contractu. Counsel for the appellee do not deny this statement or in any way directly refer to it in their brief, but from the tenor of their argument it is apparent that their contention was and is that the petition as finally amended set forth a cause of action ex delicto. We will accordingly treat the case as being one where such an election has been made and will consider the issue of whether or not the petition as finally amended is sufficient to set forth a cause of action ex delicto. American Oil Co. v. Roper, 64 Ga.App. 743, 14 S.E.2d 145; Orkin Termite Co. v. Duffell, 97 Ga.App. 215, 216, 102 S.E.2d 629; Kenimer v. Ward Wight Realty Co., 109 Ga.App. 130, 134, 135 S.E.2d 501.

Generally, a mere breach of a valid contract amounting to no more than a failure to perform in accordance with its terms does not constitute a tort or authorize the aggrieved party to...