Parsons, Brinckerhoff, Quade & Douglas, Inc. v. Johnson

• Decision Date: 18 February 1982
• Docket Number: No. 62895,62895
• Citation: 288 S.E.2d 320,161 Ga.App. 634
• Parties: PARSONS, BRINCKERHOFF, QUADE & DOUGLAS, INC. et al. v. JOHNSON.
• Court: Georgia Court of Appeals

Page 320

288 S.E.2d 320

161 Ga.App. 634

PARSONS, BRINCKERHOFF, QUADE & DOUGLAS, INC. et al. v. JOHNSON.

No. 62895.

Court of Appeals of Georgia.

Feb. 18, 1982.

Judson Graves, Atlanta, for appellants.

G. Michael Hartley, Douglasville, Paul A. Howell, Jr., Atlanta, for appellee.

BIRDSONG, Judge.

This is a companion case to Hensel Phelps Construction Co. v. Johnson, Case No. 62894, decided Feb. 18, 1982 (Ga.App.). From the jury verdict and judgment against it in favor of the plaintiffs, Parsons, Brinckerhoff, Quade & Douglas, Inc.; Tudor Engineering Company; and Bechtel Inc. (collectively referred to as "Parsons, Brinckerhoff, Tudor, Bechtel" or "PBTB") appeals. Held :

1. PBTB contends the trial court erred in denying its motion to dismiss the suit because when this action was commenced against PBTB, there was a prior action already pending between the same parties based on the same cause of action. The parties' statements of facts and the record shows that when the appellees Johnson first brought suit in Fulton Superior Court in October 1976 for Mr. Johnson's injury on a MARTA rail construction site, PBTB, which was the construction manager of the project, was not made a defendant in the suit. A year later, on October 4, 1977, the plaintiffs filed a motion to add PBTB as a party defendant to the 1976 suit, but before this motion was granted and apparently to avoid the running of the statute of limitations, the plaintiffs on October 6 filed a new and separate suit against PBTB based on the same cause of action it sought to allege in the original case. This lawsuit was served upon PBTB on October 7, as was the plaintiff's motion to add PBTB as a defendant to the original case. In January, 1978, the trial court ordered that PBTB be made a party to the original suit (hereinafter called the second suit). In March, PBTB answered the second suit, raising prior pending action as a defense.

In May, 1978 PBTB filed a motion which "pursuant to Code Ann. § 3-601 ... [moved] the court for an order compelling [plaintiffs] to elect in which of two pending civil actions he intends to proceed against these defendants." In August, 1978 the plaintiffs did elect and did voluntarily dismiss the prior pending action. Six months after the plaintiffs dismissed that prior pending lawsuit, PBTB moved the trial court to dismiss the second suit (now on appeal) which the trial court refused to do.

On appeal, PBTB contends that the cases of A. H. Robins Co. v. Sullivan, 136 Ga.App. 533, 221 S.E.2d 697 and Sparks v. Sparks, 125 Ga.App. 198(2), 186 S.E.2d 780 are controlling, in that under the clear holdings therein this second suit where it was made a defendant when there was a prior pending suit, was void ab initio, and the plaintiff's voluntary dismissal of the prior pending "suit does not preserve the second suit insofar as Code § 3-601 is concerned." A. H. Robins, supra, 136 Ga.App. 533, p. 536, 221 S.E.2d 697; see Sparks, supra, 125 Ga.App. 198, p. 200, 186 S.E.2d 780.

Appellant's argument is without merit. The A. H. Robins and Sparks decisions are misconceived insofar as they might imply that a second action is void ab initio where there is a prior pending action. This is not to be inferred from Code Ann. § 3-601 or § 3-607. To the contrary, Code Ann. § 3-601 merely provides that the pendency of a prior pending identical suit "shall be a good cause of abatement " to the latter identical suit. The analysis in Sparks is inappositely based on a Supreme Court case which dealt with a matter that involves only a penalty for procedural harassment of a different kind. See Wright v. Jett, 120 Ga. 995, 1001, 48 S.E. 345.

Where a prior pending suit is voluntarily dismissed after the defendant's plea in abatement for prior pending suit is filed, the dismissal of the first suit does not preserve the second suit. This was first held by the Supreme Court in 1872 in Singer v. Scott, 44 Ga. 659(2), and confirmed in Citizens & Contractors Bank of Lithonia v. Johnson, 175 Ga. 559, 165 S.E. 579; Housing Authority v. Heart of Atlanta Motel, 220 Ga. 192, 194, 137 S.E.2d 647. The reasoning here is that where a plaintiff persists in maintaining two suits on the same cause of action and does not choose or elect (see Code Ann. § 3-601) which one he will pursue, then it becomes the defendant's right to choose which suit he will defend and so he may file a plea in abatement under Code Ann. § 3-607; and when the defendant has done so it is too late for the plaintiff to make a choice and too late to dismiss the first suit, for the plaintiff, having compelled the defendant to choose as Code Ann. § 3-607 gives defendant the right to do, must content himself with the first suit alone. The Sparks case abstractly expressed the Singer rule without indicating whether the first case was dismissed before or after the plea in abatement was filed; in other cases the dismissal of the first suit was in fact made after the plea was filed (A. H. Robins, supra; Steele v. Steele, 243 Ga. 522, 523, 255 S.E.2d 43, or the prior suit was never dismissed at all. McPeake v. Colley, 116 Ga.App. 320, 157 S.E.2d 562; Jones v. Rich's, 81 Ga.App. 841, 60 S.E.2d 402; Hood v. Cooledge, 39 Ga.App. 476, 147 S.E. 426; Stinson v. Weaver, 22 Ga.App. 702, 97 S.E. 111. The appellees in this case having voluntarily dismissed their first suit before PBTB filed a plea in abatement under Code Ann. §§ 3-601 and 3-607, there is no good reason why the second suit should not have proceeded. When PBTB filed its plea in abatement for prior pending suit, there was no prior pending suit.

Moreover, PBTB is not entitled to dismissal of the second suit in any case. PBTB first treated the suits as being brought simultaneously and under Code Ann. § 3-601 moved to have the appellee elect which suit it would pursue. The appellees did so, dismissing their first suit. Only six months later did PBTB file its plea in abatement for prior pending suit, contending it was entitled to have the second suit dismissed as being void ab initio. Of course, in the meantime the statute of limitations had run on the appellees' cause of action. PBTB cannot in the face of these circumstances reasonably contend--even if the second suit should otherwise be void ab initio--that it is entitled to have the second suit dismissed for prior pending suit when the appellees at PBTB's request had already dismissed the prior pending suit.

2. We likewise find the second enumeration of PBTB to be without merit. PBTB contends the trial court erred in denying PBTB's motion for directed verdict at the close of the appellees' evidence in their case against defendants, and in denying the same motion at the close of the evidence, because "the evidence was insufficient to submit the case against PBTB to the jury" and because "the electrical lines presented an obvious hazard which plaintiff should have avoided and his failure to do so is not attributable to any negligence by PBTB."

A directed verdict is warranted only "if there is no conflict ... as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict..." (Code Ann. § 81A-150(a); emphasis supplied). Moreover, it is a cardinal rule that the appellate courts do not weigh the evidence and do not examine the sufficiency of evidence to support a verdict, but look only to see if there is "any evidence" to support it. Lockwood v. Daniel, 194 Ga. 544, 548, 22 S.E.2d 85; Howard Sheppard v. McGowan, 137 Ga.App. 408, 410, 411, 224 S.E.2d 65; and see Balkcom v. Vickers, 220 Ga. 345, 347-348, 138 S.E.2d 868. The evidence in this case showed that Mr. Johnson suffered electrical shock while he and another construction worker were helping unload and stack steel beams which were being lifted and moved by use of a crane. Apparently in some unknown manner, some part of the crane cable or crane, from which was suspended a steel beam being guided or steadied by Johnson, hit a nearby power line. Code Ann. § 34B-203 provides that the handling and storage of any equipment or materials under, over, by or near high-voltage lines is expressly prohibited, if at any time during such operation such equipment, supplies or materials will be brought within eight feet of any such high-voltage line, "except where such high-voltage lines have been effectively guarded against danger from accidental contact by ... (4) de-energizing such high-voltage lines and grounding the same," and that "appropriate arrangements therefor...