Thomas v. Fromherz Engineers

• Decision Date: 16 December 1963
• Docket Number: No. 5992,5992
• Citation: 159 So.2d 612
• Parties: J. B. THOMAS, Plaintiff-Appellant, v. FROMHERZ ENGINEERS et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 612

159 So.2d 612

J. B. THOMAS, Plaintiff-Appellant, v. FROMHERZ ENGINEERS et al., Defendants-Appellees.

No. 5992.

Court of Appeal of Louisiana, First Circuit.

Dec. 16, 1963.

Rehearing Denied Jan. 27, 1964.

Writ Refused March 11, 1964.

Brunfield, Turner & Cooper, by Sylvia Roberts, Baton Rouge, for appellant.

Lemle & Kelleher, by Carl J. Schumacher, Jr., New Orleans, for appellees.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

ELLIS, Judge.

This suit was instituted April 13, 1960 by J. B. Thomas against Fromherz Engineers and Singstad & Baille employed by the State of Louisiana to supervise and direct the construction of an underwater tunnel at Houma, Louisiana. Other defendants were sued but are not presently before this court. The plaintiff was an employee of the project contractor when he was injured as a piling fell from the lead line of a pile driver and struck him. The alleged cause of the accident was that the 'lead line was not equipped with an end unit.'

Other parties involved were joined as defendants, but the said consulting engineers and their liability insurers are the only appellants. An exception of vagueness was filed by attorneys for said engineers and their liability insurers. This exception was aimed at two defects in plaintiff's pleadings. It attacked plaintiff's failure to allege any details of the contract of employment. It also set forth that plaintiff's petition failed to allege 'with particularity, as required by Code of Practice Article 172.1, the basis of the alleged duty on the part of exceptor to inspect or control the operation of the equipment used by the contractor to accomplish its work.' After hearing the exception, the trial court ordered the plaintiff to 'produce the contract relied upon.'

After the written employment contract between said consulting engineers and the State of Louisiana was introduced, a motion for summary judgment or alternatively, an exception of no cause of action was filed on behalf of the consulting engineers and their insurers. The motion for summary judgment was duly heard and a summary judgment was rendered dismissing plaintiff's suit against the consulting engineers. Plaintiffs filed a motion for rehearing which was denied. Thereafter, plaintiff perfected a devolutive appeal to this court from the summary judgment dismissing his suit against Fromherz Engineers and Singstad and Baille.

On appeal, plaintiff's counsel contends the case of Day v. National U.S. Radiator Corporation, 241 La. 288, 128 So.2d 660, relied upon by counsel for appellant is inapposite for the following reasons:

'* * * The Supreme Court found (1) that the Particular contract in the Day case, imposed no duty on the architects to know of, and make an inspection of the installation of the boiler, (2) expert testimony showed the architects had fulfilled the obligations of the contract with reference to inspections of the work site; (3) the architects were guilty of no fault Proximately causing the accident. No general rules was laid down concerning duties imposed on all architects and/or consulting engineers having a contract with the State. More importantly, the court did not say that duty springing from the contract was indispensable to plaintiff's recovery; * * *'.

The contract in question sets forth the following requirements concerning appellant's contractual responsibilities in regard to the project in question:

'The Engineers shall perform general supervision and shall furnish at their expense a resident engineer who is experienced in tunnel construction with the Project Engineer and his assistants supplied and paid by the Department.

'The Engineers shall assist the Department in the review and tabulation of bids received, investigation of bidders and similar functions connected with the receipt of bids and the award of contracts. After the award of a construction contract or contracts, the Resident Engineer shall be available at all times for consultations with the Project Engineer and other engineers of the Department.

'The Engineers shall receive shop and construction detailed plans from contractors, manufacturers or others, review and amend if necessary and approve such plans.'

Clearly, these duties are not identical to nor apparently as stringent as those set forth in the employment contract in the Day case, to-wit:

'* * * 'adequate supervision of the execution of the work to reasonably insure strict conformity with the working drawings, specifications, and other contract documents', and this supervision was to include, among other things, '* * * (b) inspection of all samples, materials, and workmenship * * * (d) checking of all shop and setting drawings (c) frequent visits to the work site * * *'.'

However, the observation made in the Day case concerning the extent of the architects supervision duties is applicable to the case at bar:

'Under the contract they as architects had no duty to supervise the contractor's Method of doing the work. In fact, As architects they had no power or control over the contractor's method of performing his contract, unless such power was provided for in the specifications. Their duty to the owner was to see that before final acceptance of the work the plans and specifications had been complied with, that proper materials had been used, and generally that the owner secured the building it had contracted for.' (Emphasis ours.)

The pertinence of the above holding in the Day case is apparent in the case at bar. The pertinent negligent acts complained of by plaintiff in his petition were as follows:

'That the said accident was caused by the negligence of defendants FROMHERZ ENGINEERS AND SINGSTAD & BAILLIE, CONSULTING ENGINEERS, in failing to inspect said equipment; in permitting said pile driver to operate without the proper safety appliances, particularly an end unit to securely hold the pilings which were being set.'

These are faults in the equipment and/or operation of plaintiff's employer's independently owned and operated equipment, over which the consulting engineers had no apparent contractual or actual control. Facts giving rise to a duty, contractual or otherwise, on the part of the appellee are neither alleged in plaintiff's petition, nor supplied by other proof available on a motion for summary judgment, as provided by LSA-Civil Code of Procedure, Article 966:

'The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.

'The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith If the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.' (Emphasis added.)

Accordingly, in the absence of proof concerning an extension of the duties of the appellees in this case to supervision of the contractor's equipment or construction methods, there is no such duty at issue. This proof could, if available, have been introduced under the procedure set forth for summary judgment. Therefore, in this respect and under the circumstances presented herein, the Day case is reliable authority for upholding the summary judgment granted herein.

Counsel for plaintiff also complains that the District Court's erroneously resolved factual issues by summary judgment citing several cases in support of this contention. Wilkinson v. Husser, La.App., 154 So.2d 490; Vallier v. Aetna Finance Company, La.App., 152 So.2d 112; Kay v. Carter, 243 La. 1095, 150 So.2d 27; McDonald v. Grande Corporation, La.App., 148 So.2d 441; Freyou v. Marquette Casualty Company, La.App., 149 So.2d 697. Counsel for plaintiff urges two issues of fact were erroneously resolved herein:

(1)...