Pacific Form Corp. v. Burgstahler

• Decision Date: 28 September 1972
• Citation: 263 Or. 266,501 P.2d 308
• Parties: PACIFIC FORM CORPORATION, an Oregon corporation, Appellant and Cross-Respondent, v. C. V. BURGSTAHLER, Respondent and Cross-Appellant.
• Court: Oregon Supreme Court

Page 308

501 P.2d 308

263 Or. 266

PACIFIC FORM CORPORATION, an Oregon corporation, Appellant and Cross-Respondent, v. C. V. BURGSTAHLER, Respondent and Cross-Appellant.

Supreme Court of Oregon.

Argued and Submitted June 7, 1972.

Decided Sept. 28, 1972.

Lloyd W. Weisensee, Portland, argued the cause for appellant. With him on the briefs were Fredrickson, Heath, Weisensee, Barton & Cox, Portland.

James B. O'Hanlon, Portland, argued the cause for respondent. With him on the brief were Ridgway K. Foley, Jr., J. Laurence Cable, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

HOWELL, Justice.

Plaintiff filed this action to recover damages resulting from defendant's negligence in failing to discover a defect in certain construction plans. The action was tried before the court without a jury. The court entered a judgment for defendant, and both parties appeal.

Plaintiff is in the business of designing and selling steel forms and shoring used in the construction industry. In August or September of 1968, plaintiff's vice-president contacted W. F. Maxwell Company in California in regard to providing a shoring system for a viaduct Maxwell had contracted to build. Maxwell invited plaintiff to submit a design and a bid for these supports which would be used to hold up the viaduct during construction.

On November 29, 1968, plaintiff sent a sales design to Maxwell and submitted a bid. On December 12, 1968, Maxwell submitted a purchase order, which provided that plaintiff was to supply a certain quantity of shoring towers for the lump sum of $429,750. Acceptance of the entire shoring system by Maxwell was conditioned upon plaintiff's testing a prototype of the towers which was required to support a vertical load of 400,000 pounds at a height of 110 feet. Plaintiff was also required to have the final plans approved and signed by a structural engineer registered in the state of California.

The purchase order also contained an option whereby Maxwell could acquire an additional quantity of towers for the lump sum of $47,750, plus tax.

After receiving the purchase order on December 12, 1968, plaintiff proceeded with the final design and shop drawings. A steel fabricator was contacted to build a prototype for testing purposes.

On January 7, 1969, plaintiff contacted defendant, a consulting engineer, to review the final plans to determine if they were suitable for the purpose intended. On either January 15 or January 16, 1969, defendant recommended certain changes in the design of the shoring system. The exact date is not clear from the evidence, but sometime between the 15th and 20th of January, 1969, plaintiff incorporated the recommended changes into the final plans and returned them to defendant for approval.

In the meantime, the prototype had been built. On January 16 and 17, 1969, the prototype was tested and successfully withstood the required weight.

There is a conflict in the testimony whether defendant approved and signed the final plans before or after the prototype had been tested. However, for the purpose of our holding it is not important.

After the design had been approved by defendant and the prototype tested, plaintiff had the towers fabricated and shipped to the construction site in California.

Approximately June 1, 1969, an employee of plaintiff discovered that the design had a defect in it. Plaintiff contracted defendant, who then agreed that the design, as approved, was inadequate to support 400,000 pounds of vertical weight as required by the purchase order.

To correct this defect, it was necessary for plaintiff to have additional bracing manufactured and shipped to the construction site at a cost of $35,553. Also, another prototype was constructed and tested by plaintiff at a cost of $5,275.96.

In October 1969 Maxwell exercised its option to purchase additional towers. These towers were fabricated with the additional bracing inserted prior to being sent to the construction site. The extra bracing for these towers cost $4,195.89.

In its amended complaint, plaintiff alleged that defendant negligently failed to discover the defect in the design of the shoring system and that as a result plaintiff incurred expenses of $45,024.85. This amount represents $39,748.89 plaintiff was required to spend for the additional bracing and $5,275.96, the cost of the construction and testing of the second prototype.

Defendant's answer contained a general denial and an affirmative defense that plaintiff was contributorily negligent in failing to discover the defect in the design of the shoring system and in failing to properly conduct the tests to discover any possible defects.

Plaintiff filed a motion to strike and a demurrer to this affirmative defense, both of which the trial court overruled.

After hearing the evidence, the court found 'that both parties were negligent as alleged and that such negligence was the proximate cause of any damage sustained by plaintiff,' and entered a judgment against plaintiff. Both parties appeal.

Plaintiff contends that the trial court erred in refusing to strike the affirmative defense of contributory negligence and overruling the demurrer to the same. Defendant contends that the trial court erred in finding that its conduct was a cause of plaintiff's injury.

Assuming that plaintiff is correct in its argument that the trial court erred in overruling the demurrer and refusing to strike the affirmative defense of contributory negligence, plaintiff is, nevertheless, not entitled to recover from defendant.

Plaintiff's action is properly characterized as one for malpractice arising out of defendant's failure to use due care to discover the defect in the plans of the shoring system. Malpractice actions are based on negligence. Ritter v. Sivils, 206 Or. 410, 293 P.2d 211 (1956); see, Dowell v. Mossberg, 226 Or. 173, 355 P.2d 624, 359 P.2d 541 (1961). Therefore, as in all other actions based on negligence, plaintiff is required to establish that not only did the defendant breach a duty owed to the plaintiff but that such conduct was a cause of plaintiff's injury. Ritter v. Sivils, supra, 206 Or. at 413, 293 P.2d 211. Plaintiff has failed to establish that defendant's negligence was a cause of any damage sustained.

Plaintiff alleged in its amended complaint that, in reliance upon defendant's certification, the shoring towers were fabricated and sent to California. It is plaintiff's position that had defendant discovered the defect in the plans prior to the towers being fabricated and shipped, plaintiff would not have incurred the cost for additional bracing. This argument is not persuasive.

Prior to any contact with defendant the plaintiff, under the terms of the purchase order dated December 12, 1968, was required to design, build and ship to the construction site in California a shoring tower capable of supporting 400,000 pounds of vertical weight for a fixed price. ¹

While defendant was...