Swarthout v. Beard

• Decision Date: 18 May 1971
• Docket Number: No. 3,Docket No. 7887,3
• Citation: 190 N.W.2d 373,33 Mich.App. 395
• Parties: , 59 A.L.R.3d 858 Arlen SWARTHOUT, Administrator of the Estate of Leonard F. Clak, Deceased, Plaintiff-Appellee-Cross-Appellant, v. Leland BEARD, d/b/a Beard's Welding & Erection Company, Defendant, and Lewis J. Sarvis, d/b/a Lewis J. Sarvis, Architect, Defendant-Appellant- Cross-Appellee. *
• Court: Court of Appeal of Michigan — District of US

Page 373

190 N.W.2d 373

33 Mich.App. 395, 59 A.L.R.3d 858

Arlen SWARTHOUT, Administrator of the Estate of Leonard F Clak, Deceased, Plaintiff-Appellee-Cross-Appellant, v. Leland BEARD, d/b/a Beard's Welding & Erection Company, Defendant and Lewis J. Sarvis, d/b/a Lewis J. Sarvis, Architect Defendant-Appellant- Cross-Appellee. ^*

Docket No. 7887.

Court of Appeals of Michigan, Division No. 3.

May 18, 1971.

Released for Publication Oct. 7, 1971.

Charles E. Starbuck, Stratton, Wise, Early, Starbuck & Lennon, Kalamazoo, for Sarvis.

John L. Collins, Foster, Campbell, Lindemer & McGurrin, Lansing, for Beard, for appellant.

Harvey E. van Benschoten, van Benschoten & van Benschoten, Saginaw, for appellee.

Before FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.

HOLBROOK, Judge.

Plaintiff's decedent, Leonard Clark, was killed on July 29, 1963, when the west wall of an excavation caved in on him. At the time, he was working in the excavation as an employee of Nordstrom-Myers, Inc., the general contractor, putting in footings for the library building at Alma College.

This is a wrongful death action naming Beard's Welding & Erection Company, the excavator, and Lewis J. Sarvis, the architect, as original defendants. Nordstrom-Myers, Inc., was later added as a third-party defendant. All defendants were charged with negligence. The action against Nordstrom-Myers was dismissed, without prejudice by the Court on a theory of workmen's compensation immunity. After trial, the jury returned a verdict in the amount of $25,000 against Lewis J. Sarvis and found no cause of action as to Beard's Welding & Erection Company.

On appeal, defendant Sarvis contends that he owed no actionable duty to the plaintiff's decedent; loss of companionship and support for decedent's family are improper damage considerations; it was error to allow plaintiff to orally amend his pleadings and thereby change his theory of the case; the motion to dismiss should have been granted at the close of plaintiff's proofs; and the third-party complaint against Nordstrom-Myers, Inc., should not have been dismissed.

On cross-appeal, plaintiff contends that the Court erred in refusing to instruct that conscious pain and suffering should be considered as an element of damages, and that plaintiff would be entitled to interest from the date of death to the date of the verdict.

The Court denied Sarvis' motion for a directed verdict at the close of plaintiff's proofs. The general rule with respect to directed verdicts is that the proofs and reasonable inferences therefrom must be viewed in the light most favorable to plaintiff on review. Humenik v. Sternberg (1963), 371 Mich. 667, 669, 124 N.W.2d 778; Holpainen v. American Motors Corporation (1970), 25 Mich.App. 124, 181 N.W.2d 38; Cusumano v. The Stroh Brewery Company (1970), 26 Mich.App. 549, 182 N.W.2d 787.

Nordstrom-Myers, Inc., as general contractor, was required by contract to take all the necessary safeguards for the protection of workmen and the public.

Sarvis, as architect, was contractually bound to be the owner's representative, to inspect with authority to stop the work, and to use his powers under the building contract to enforce faithful performance.

Defendant Sarvis takes the position that its contract with the owner did not obligate it to insure, inspect, or supervise the project for the safety of workmen on the project, or to supervise and oversee the general day-to-day work of contractors and subcontractors, and that the general contractor was solely responsible for the safey of workmen.

A favorable-to-plaintiff view of the evidence indicates that defendant Sarvis is not a complete 'outsider' to the general building contract. Trial testimony clearly establishes that 20 percent of the architect's fee was specifically allocated for the supervision of the project.

Defendant Sarvis's project architect in charge admitted that the architect had authority as Alma College's representative to stop the job. It could be stopped, he said, if the architect felt it was necessary to stop the work for the purpose of enforcing any of the provisions of the contract between the owner and the general contractor. He also admitted that to maintain the excavation in a safe condition was one of the provisions of the construction contract to be enforced by the architect. The architect had the right to stop the job if he deemed it necessary to enforce safety requirements.

The project engineer, Joseph Sugar, testified that at least six days before the cave-in, he personally showed architect employee Clement that the west wall of the excavation was neither shored nor sloped and was cracking because of wet clay. Mr. Clement agreed that the condition was dangerous and would have it corrected. Mr. Sugar also testified that the architect and only the architect had authority to shut down the job to correct the condition.

'An architect may be held liable for negligence in failing to exercise The ordinary shall of his profession, which results in the erection of an unsafe structure whereby Anyone lawfully on the premises is injured. An architect's liability for negligence resulting in personal injury or death May be based upon his supervisory activities or upon defects in the plans. * * * the modern view is that Privity of contract is not a prerequisite to liability. As in other negligence cases, however, there can be no recovery against the architect unless it can be established that his negligence was the proximate cause of the personal injury or wrongful death sued for.' (Emphasis supplied.) 5 Am.Jur.2d, Architects, § 25, pp. 688, 689.

The responsibility of an architect may be similar to that of a lawyer or a physician; the law requires the exercise of ordinary skill and care common to the profession. Chapel v. Clark (1898), 117 Mich. 638, 76 N.W. 62; Bayne v. Everham (1917), 197 Mich. 181, 163 N.W. 1002; Ambassador Baptist Chuch v. Seabreeze Heating and Cooling Co. (1970), 28 Mich.App. 424, 184 N.W.2d 568.

It is the contention of the defendant that even though Sarvis may have had notice of a hazardous condition in the excavation, he had no duty to take official action to warn workmen or to shut down the job.

The trial judge answered this argument in his opinion denying the motion for a new trial as follows:

'While it is true that the general contractor had the contractual duty to take necessary precautions for the safety of employees, it is likewise true that defendant Sarvis had the authority to enforce the proper execution of the contract, and it would appear to the Court that this would include the general contractor's obligation to provide for the safety of employees.

'The Court is not persuaded by the argument that Defendant Sarvis owed no duty of care to plaintiff's decedent. It is not necessary that there be a contractual relationship before a duty of care arises. It would appear to the Court that plaintiff's decedent was within the zone of risk created by defendant Sarvis' failure to act; Elbert v. City of Saginaw (1961), 363 Mich. 463, 479 (109 N.W.2d 879).'

We agree with the determination made by the trial court. Plaintiff's decedent was, as an employee, lawfully on the premises and privity of contract under these circumstances is not a prerequisite to liability. 38 Am.Jur., Negligence, § 14, p. 656. The defendant was paid a fee to supervise the general construction. The dangerous condition of the west wall was brought to the attention of the architect, and he had authority to stop the work and make the necessary correction. He had knowledge that employees were working in the area of the wall and were in the zone of peril; injury could be foreseeable. Elbert v. City of Saginaw, Supra; May v. Goulding (1961), 365 Mich. 143, 153, 111 N.W.2d 862.

The question is whether defendant Sarvis used the reasonable care which would be exercised by a person of ordinary prudence under all the circumstances, in view of the probable danger of injury. There was evidence from which the jury could find that defendant Sarvis had actual knowledge of the dangerous condition of the wall and that he had sufficient time and authority to effect a correction of the condition. The jury could conclude that failure to act constituted actionable negligence and was a proximate cause of the resulting death.

The evidence from both expert and lay witnesses is sufficient to establish a Prima facie case of negligence. The issues of due care, duty, and breach are factually doubtful and all reasonable men would not probably agree.

'Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in in each particular case. The question then is what the reasonable man would have done under the circumstances. Under our system of procedure, this question is to be determined in all doubtful cases by the jury, because the public insists that its conduct be judged in part by the man in the street rather than by lawyers, and the jury serves as a shockabsorber to cushion the impact of the law.' Prosser On Torts (3d ed), Negligence: Proof, p. 208.

The trial court did not err in denying Sarvis' motion for a directed verdict at the close of plaintiff's proofs. There is sufficient evidence from which a jury could reasonably infer that defendant Sarvis did not meet the prudent man test required by the specific factual circumstances of this case as revealed by the testimony of the witnesses and the other evidence.

On appeal, defendant alleges that the factors considered by the jury in awarding the plaintiff a $25,000 judgment are inconsistent with the principles set forth in Breckon v. Franklin Fuel Company (1970), 383 Mich. 251, 174 N.W.2d 836.

In the instant case the Court gave the jury the following instruction:

'As damages plaintiff claims that the Clark Estate, on behalf of the children of the decedent, should be fairly compensated for...