Wellston Co. v. Sam N. Hodges, Jr., & Co.

• Decision Date: 07 October 1966
• Docket Number: No. 42225,No. 3,42225,3
• Citation: 114 Ga.App. 424,151 S.E.2d 481
• Court: Georgia Court of Appeals
• Parties: The WELLSTON COMPANY v. SAM N. HODGES, JR., & COMPANY et al

Page 481

151 S.E.2d 481

114 Ga.App. 424

The WELLSTON COMPANY v. SAM N. HODGES, JR., & COMPANY et al.

No. 42225.

Court of Appeals of Georgia, Division No. 3.

Oct. 7, 1966.

Syllabus by the Court

The plaintiff's cause of action to recover damages in tort arising out of the alleged negligent design and construction of a building by the defendants under contract with the plaintiff accrued and the statute of limitations started to run when the negligent acts were committed resulting in damage to plaintiff, and not when a portion of such building later collapsed as a result of the defendants' negligence in improperly designing and constructing it.

The plaintiff filed this suit on February 18, 1965, against Sam N. Hodges, Jr. & Company, a general contractor, and Charles W. Boroughs, an architect, seeking to recover damages in the amount of $154,683.93 allegedly sustained as the result of the negligent design and construction of a building by the defendants for the plaintiff. The petition as amended alleged that the construction contract was executed on February 12, 1957, and that construction of the building was completed in the latter part of 1957; that by reason of the negligent preparation of the plans and specifications and the negligent designing of the roof and building by the defendant Boroughs and by reason of the defective and improper construction of the building by the defendant contractor as specified with particularity in the amended petition, 'within a few months after completion of said building and during the first year after completion of construction of the said building, the roof slab began to sag and shift and began to be subjected to abnormal stresses and strains, all of which was unknown to plaintiff until February 19, 1961, 'when a portion of the roof slab at the southwest corner of the building collapsed and fell in.'

The defendants demurred generally to the petition on the ground that it affirmatively disclosed that the plaintiff's action was barred by the four-year statute of limitation applicable to actions for injuries to property and these grounds of demurrer were sustained and the petition dismissed. The plaintiff has appealed to this court, contending that its cause of action did not accrue until the roof collapsed on February 19, 1961, and that its suit was properly brought within the statute of limitation.

Westmoreland, Hall & Pentecost, Donald E. O'Brien, John L. Westmoreland, Jr., Atlanta, for appellant.

Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, John T. Marshall, Tindall & Tindall, Joseph D. Tindall, Jr., Atlanta, for appellee.

JORDAN, Judge.

Contrary to the contention of the plaintiff, its right of action against the defendants accrued when the defendants committed the negligent acts complained of and not when the building ultimately collapsed as a result of such negligence. The alleged negligent design and construction of the building in and of itself constituted a legal injury to the plaintiff, however slight the actual damages may have been at the time; this is true, notwithstanding the fact that the plaintiff had no knowledge of such wrongs having been committed until the roof collapsed some four years later. Mere ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitation. Crawford v. Gaulden, 33 Ga. 173, 188; Davis v. Boyett, 120 Ga. 649, 48 S.E. 185, 66 L.R.A. 258; Barrett v. Jackson, 44 Ga.App. 611, 162 S.E. 308; Mobley v. Murray County, 178 Ga. 388, 173 S.E. 680; Silvertooth v. Shallenberger, 49 Ga.App. 133(2), 174 S.E. 365.

As stated by the Supreme Court in the Mobley case, (Headnote 1), 'When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is 'to ascertain the time when the plaintiff could first...