Waddey v. Davis, 57190
| Decision Date | 13 March 1979 |
| Docket Number | No. 57190,57190 |
| Citation | 149 Ga.App. 308,254 S.E.2d 465 |
| Parties | WADDEY v. DAVIS et al. |
| Court | Georgia Court of Appeals |
Hull, Towill, Norman, Barrett & Johnson, David E. Hudson, Augusta, for appellant.
Martin, Snow, Grant & Napier, George C. Grant, Macon, Landau & Davis, Edmund A. Landau, Jr., Perry, Walters, Lippitt & Custer, Jesse W. Walters, Burt, Burt & Rentz, Don D. Rentz, Albany, Reinhardt, Whitley & Sims, Glenn Whitley, Tifton, for appellees.
1. We agree with the appellee that the third party complaint against him is based primarily upon the breach of an oral contract, the statute of limitations for which is four years from the time of the breach. Code § 3-706; Benton v. Roberts, 35 Ga.App. 749(3), 134 S.E. 846 (1926). The breach of the duty, not the time the special damage results, is the beginning period for the right of action. Riser v. Livsey, 138 Ga.App. 615, 227 S.E.2d 88 (1976). Davis had no contractual relation with the owners or tenants of the stores involved here; his only contractual obligation was with the architect, that he would furnish him with plans for plumbing and other specified technical requirements for the project. Failure to prepare these plans in a workmanlike manner would indeed constitute a breach of an implied warranty as between these parties, and the breach occurred, if at all, when the plans were completed, accepted, and paid for. All these acts occurred more than four years prior to the filing of Waddey's third party action. Davis' contention that he was entitled to a summary judgment by reason of the statute of limitations is therefore valid. Cf. PPG Industries, Inc. v. Genson, 135 Ga.App. 248, 217 S.E.2d 479 (1975).
2. The architect contends, however, that he is a defendant in a tort action, that the tort, if any, is not his but that of the third party defendant, and that the right to contribution among joint tort-feasors is limited only by a twenty-year limitation, as held in Independent Mfg. Co. v. Automotive Products, Inc., 141 Ga.App. 518, 520, 233 S.E.2d 874 (1977); Champion v. Wells, 139 Ga.App. 759, 762, 229 S.E.2d 479 (1976). Analysis of the pleadings, answers to requests for admission and affidavit, however, reveal that regardless of what the legal situation may be as between the various plaintiffs and the defendant architect (that is, regardless of whether or not failure to install a sprinkler system constituted a tort on the part of the architect) the subcontractor is not a named defendant in the plaintiffs' complaints, and whether or not the appellant might look to him for contribution in the payment of any judgment against the appellant must depend on whether the latter can establish negligence on the part of the third party defendant which proximately caused damage to him. A tort is by definition an unlawful violation of the legal right of another "other than a mere breach of contract, express or implied." Code § 105-101. Where there is no special relationship beyond the mere contractual one, a failure to perform in accordance with its terms will not constitute a tort as to the other contracting party. Thomas v. Phoenix Mut. Life Ins. Co., 142 Ga.App. 550, 236 S.E.2d 510 (1977). The appellant here contends that there was a mutual understanding in the oral contract between these parties that the plans submitted should conform to the expertise of the subcontractor and that the architect was relying upon this expertise, so that it was up to Davis to determine whether a sprinkler system was needed in the shopping plaza, whether it was required by law, how it should be installed, and so on.
The undisputed facts of the case, however, contravene this position. Davis, while engaged in preparation of the plans, inquired of Waddey whether a sprinkler system should be included and Waddey replied that the owner stated sprinklers were not required. Waddey further informed Davis that he had been informed by the city building inspector on inquiry that sprinkler systems were not...
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