*1
v.
T. Walker
Wittenberg,
Robert
Delony
Inc.
Davidson,
&
2d 621
412 S. W.
5-4008
6,
March
delivered
Opinion
1966,
The trial court, at the conclusion of evi- dence, directed a architect, verdict favor of the hence light appel- the facts, viewed in the most favorable to they though lant, will be stated if were true even some of them were controverted. giving litigation
The facts rise to this show that Company employed design Ruebel and the archit*ect a funeral home on Markham Rock. West Street Little design precast for outer con- called for walls panels high, eight crete ten feet wide and three feet light aggre- thick, inches be backed on inside gate adopted design blocks. This after was preliminary drawings comments to submitted panels the manufacturer of the of the latter’s because pur- superior design knowledge, revised and then Upon suggested changes. suant manufacturer’s specifications, plans Com- Ruebel and architect’s & pany Stowers, construction Cone let the contract for appellant’s employer. laying appellant accident,
At the was time negligently 1 Appellant the contention that architect has waived panels support precast adequate provide failed to Baker, Ark. argue appeal. Fancher v. same on failure 2d 280. S. W. light aggregate precast pan- behind blocks concrete els. After the blocks had been laid on the east wall of top, within two courses of the the braces holding panels permit upright were removed top two to be laid. While the braces courses appellant standing top removed, wall, was plumbing it. As the last brace the wall removed, causing appellant’s injuries. fell outward, supervisor Appellant immediate both stated and his. they braces, did not know that the wall, without the *3 dangerous the wall, or unstable. The west identical to be- east wall removed and from which the braces were days matter of fore the involved stood a here, accident falling. the wall which without The architect admits appellant standing wall standing without was. free was it would have e., the tendency and braces., stable, i. de- wall was fall toward the outside. The to signed stability. for to later tied into the roof the braces that the architect knew
It not contended is ad- architect wall. The from removed the activities, performed supervisory in connec- mittedly no Apparently, building funeral home. of the with the tion inspect premises time to time. from the did appellant that the architect It the contention of inspect supervise the agreed and with the owner to duty paid á building, had definite and it, fee was responsibility including supervise the the steps taking of workmen to secure duty was appellant. that his contention The architect’s com- when supervise end that and plans pleted building conform would Building Code, specifications Little Rock and duty over upon control him exercise there was no did which adopted by contractor ineans methods upon no there was e., i. result, the end affect mot reference to him the contractor direct control support temporary precast panels of the during con- struction. agreement actual between the owner and the Wittenberg,
architect was oral. Gordon a member Wittenberg, Delony architectural firm of & Davidson, George Wittenberg, Inc., and a brother an officer part Company, owner of Ruebel and testified there was agreement no formal written between the architect furnishing the owner for architectural He services. prepara- stated that the architectural services included plans specifications periodic inspection tion of while under construction, and that prepared plans specifications, while his firm contract let the owner. The architect per price, was to six receive cent of the contract per which one and one half cent was allocated to special supervision required by engineering Section Building City Code of of Little Rock.
George Wittenberg, Company, of Ruebel and when employed Company asked whether Ruebel and had comply architect Section *4 Code, stated: Wittenberg, employed Delony
“We & Davidson, perform all of the an us duties of architect for and in our behalf.” Building provides: 204 of
Section Code Special Inspection Engineering “Section 204. Supervision. Inspector building
“The or cause to shall inspected at during be intervals erec- various enlarging, repairing, tion, construction, alteration, moving, occupancy and un- demolition, conversion, structures, derpinning buildings all referred City in this Rock, Code located in the of Little inspection every a final shall be made build- ing prior and structure hereafter erected is- specified Occupancy suance of the Certificate of in Section 206. repair building alteration, or construction,
“No permit requiring building be demolition shall com- permit agent menced or until the holder shall his posted conspic- building permit in have card permit place premises. uous card on the front position by permit shall be maintained in such Occupancy holder until the Certificate of has been Inspector. Building issued Inspector upon Building notification from “The permit shall the fol- the lowing holder or make ap-
inspections buildings and either shall prove completed portion as agent construction permit notify the where- holder shall comply in the fails to law. same Inspection-. made after trenches be “Foundation To necessary erected, forms steel are excavated and samples representative placed ma- all and when job. the* foundation delivered terials for the are Inspection: roof, all after the To made “Frame be place bracing fire-blocking framing, complete. pipes, chimneys are vents all Inspection: after be made “Final To completed occupancy. ready for part “No work be done on shall point beyond indicated each suc- or structure obtaining inspection written first without cessive Inspector. approval Such written inspection given approval after step in the made of successive been each *5 shall have in- above each of the indicated construction spections. reinforcing framework of structural steel or
“No building, part any cov- any or structure be shall of any ered or concealed in manner whatsoever with- approval obtaining out Building first the of In- the spector.
‘‘ plaster pro- buildings, In all for where is used fire purposes permit tection or the holder his notify Inspector lathing shall Building all after place hacking representative and all sam- ples plastering the ap- materials are delivered on plaster job applied and no shall be until proval Inspector Building been received. has “Special Engineering Supervision: Any or agent engaged causing in the erec- erection or tion of or where the estimated structure employ registered value exceeds $25,000 shall supervise engineer con- architect or licensed engineer building.. architect or struction of the Such of Ar- be under the laws of the State shall licensed impor- shall over all kansas and service extend assembly framing, erection, and details tant adequate inspection he render service shall full buildings. supervision on such responsible directly en- shall held “He be applica- same is wherever Code, forcement this upon engaged. He which the structure ble to attempt Inspector Building any notify repair, any patch, ma- defect or cover, conceal, workmanship have materials or before terials Inspector, his. Building been examined responsi- representative. directly held He shall be Building ruling of the the infraction ble for compel authority Inspector, shall have suspend or to materials removal of defective ruling In- stop pending (Emphasis supplied.) spector.” agreement nothing in the is. there was it seen Thus required the which the owner between the architect present continuously during the construc- architect to provisions enforce or to tion of
103 of contractor, the contract between and un- provision less such a in of can found Section 204 Building Code. “supervise”
Nor we extend the words can Building “supervision,” Code, used in 204 of the Section requirement must control that architect exercise adopted by contractor over the means and methods in its result. When read which not affect end do purpose entirety, 204 of it Section is obvious that compliance to exact with the Code was- inspector responsible to the hold in connection therewith. Chicago Lbr. Mill & occasion in Moore
hadWe (1938), Phillips, 197 Ark. 120.S. W. 2d 722 133, Co. v. methods to comment as to control means containing adopted by party lan a third in contracts guage supervision as of such owner’s as “under doing may he and in direct,” said: so appellate of courts “There construing countless decisions are stipulations as here contracts, in such give relating right of owner ‘to involved, regarding ‘instructions’ directions’ —‘orders’ and phrases progresses; as ‘in work it such as accordance- directed’—‘in with instructions’ —‘as supervi as. such manner be directed’—‘under agent, may ‘un sion direct’—and owner’s ’ supervision. cases all of the the direction der In some it is held of which are examined, cited, phrases man do the method not relate to physical govern ner do the details performed. The- means which work is to be. Supreme has so held Court States the United point. Brown, 148 directly v. two cases Casement ; v. U. S. 13 L. 615, U. S. S. 37 Ed. Ct. 582 96 24 L. Ed. Driscoll, U. 847.” S. the Con- Conditions
Article General Edition A-201, A. No. tract, A. Document I. provides: American Institute Architects, “ARCHITECT’S STATUS general supervision “The Architect shall have *7 of direction work. He is of the Owner provided to the extent Docu in the Contract special ments and when in he author instances by ized Owner so instances act, and such upon request, shall, he show the written Contractor authority. authority stop He has work when stoppage necessary may ever such to insure proper execution of the Contract.
“As is, the Architect in the first in- instance, the conditions, terpreter. of the of the Contract and the judge performance, of its he shall neither with side the Owner nor with the but Contractor, shall use powers under the contract its. faith- enforce performance by ful both.' employment “In case of the termination appoint capable the Architect, shall Owner reputable against and Architect whom the Contrac- objection, tor no un- makes whose status reasonable der the shall contract be that of the former Archi- dispute appoint- tect; in connection with such subject ment shall be to arbitration.” provides: Article 12 continuously
“The shall Contractor maintain ade- protection quate damage of all his work from protect property injury shall from or Owner’s arising loss connection this. Contract. He good any damage, injury shall make such loss, or except may directly such due to errors in the as Documents, agents Contract or caused or em- ployees beyond of the Owner, or causes due negli- Contractor’s control and not to his fault adjacent prop- protect gence. adequately He shall erty provided by law and Contract Docu- as ments. precau- necessary
“The Contractor shall take all employees on the tions applicable provisions'' Fed- comply with all shall bnilding Municipal safety laws State, eral, persons codes, injury on, prevent accidents premises work adjacent where the about or properly performed. He shall erect required by conditions as all times, maintain at safeguards necessary progress work, all public protection workmen and the against warning post danger signs the hazards shall features, protrud- construction created hatchways, elevator holes, well ing nails, hoists, falling stairways openings, scaffolding, window responsible designate and he materials.; *8 organization duty the whose work, member of his on prevention of accidents. The name shall be the position person designated re- so shall be ported by to Architect the Contractor. emergency affecting safety an of life or
“In adjoining property, Contractor, work or special instruction or authorization from without permitted hereby act, to Owner, the Architect or prevent loss discretion, his such threatened at to appeal, injury, if so or he shall so act, without compensation, Any claimed authorized instructed. by emergency Contractor account agreement by shall be or Arbitration.” determined pro 38, under When architect’s status Article only viding to that he “is the of the Owner provided .,” in the Contract Documents. . extent read provision safety of Article connection with the apparent given au no 12, it is at the architect was once except provisions thority see that the to over the responsible employee designated a whose contractor prevention duty and whose name and accidents reported position the architect. agreement
Construing with the own- architect’s 106 light
iner of the circumstances which it was under made, the contract between the owner and the contrac- requiring designate tor, the contractor someone organization prevention whose of acci- certainly expecting dents, owner indicates the was not supervise pre- day-to-day safety also cautions. This is illustrated fact contract that the required person designated the name of the re- so to he ported architect, owner, the fact that the by requiring person pre- the contractor furnish paid already prevention vent accidents, had once for the accidents in contract Cone Stowers. presumption parties is that contract
themselves, and a contract will not be hav- construed as ing party been made benefit of third it unless appears clearly parties. that such was the intention of Knox v. Ball, Tex. S. W. 2d 164 A.L.R. (1945). Before an have can be said to architect agreed with control exercise direct over re-spect day-to-day safety supervision contractor with agreement ap- of a clearly contract, must pear agreement, from terms conduct of the parties, performed. the nature of the work
Appellant argues
by
that
this case is controlled
Hummonds,
Erhart
334
2d 869
v.
Ark.
S. W.
(1960),
disagree.
involving
but we
There
had work
we
special danger
by
a
to
archi-
others which
known
the
inherent in
tects to be
the construction of the J. C. Pen-
ney
Company building,
and
the
Restatement
Law
of
of
specificially
Torts, 2d,
427; the architects were
em-
§
ployed by
guard
supervising
the
interests
its
construction of the
m addition to their archi-
present danger
duties;
tectural
and furthermore,
the
injured parties
was known
the architects.
negligence
injury
causing
Here the contractor’s
the
performed,
was in the
in which
manner
the work was
the risk was not inherent in the
and the architect
contemplate
negligence
had no reason to
contractor’s
the
negligence
the
here
i.e.,
when
contract was
the
made,
doing
was collateral to
risk
Restatement
the work.
the
Torts,
the Law
2d 426.
§
rule as to
Erhart case states the correct
While
prevailing,
that
think
there
we
circumstances
prevailing
covering
correct
here
rule
circumstances
Corp.,
Day
v. National
Radiator
stated
U. S.
(1961).
architects
La.
“As we view matter, of this provision impose obligation duty was to architects insure to the that before acceptance final of the work the would completed specifi- plans in accordance with the cations ; and to insure this result the were architects visits, ‘frequent during, make to the work site’ progress they of the work. Under the contract as supervise duty had no architects the contractor’s doing method of the work. fact, In architects contractor’s, they power had no or control over the performing pow- method of unless such contract, provided specifications. er duty Their in. acceptance to the owner towas that before final see plans specifications of the work the had been complied proper that with, materials been used, had generally that the owner secured the it had contracted for. we do think
“Thus that under the contract in charged the instant case the architects were obligation inspect duty the methods em- ployed by the contractor or the subcontractor fulfilling the contract or the subcontract. Conse- agree quently Appeal we do not with the Court of duty Day, that the had a architects the deceased employee sys- of Yince, to the hot water they tem during its or that installation, charged knowing with the boiler installed.” For the reasons stated, the directed verdict in favor of the architect affirmed.
Harris, C. J. dissents, dissenting. Chief Justice, Harris, CarletoN this, opinion handed down case on December *11 expressed my as those of the court, views as well conforms, reasoning my thinking therein set still to the in the made However, out. because some statements present opinion, majority a addi- I few desire to make comments. tional y majorit is “whether
The state that the issue upon obligation contractual there was during emphasis) present continuously (my construc- * though, agree the issue, I do that this is tion* not question, I would like commenting on before further period- point even that not record out that the reflects archi- done, the made, and if this had been were ic checks free-standing west certainly have noticed the tect would employee Gray, the architectural Mr. Tom wall. agreed other testifying firm, behalf of the firm, free-standing does i.e., a wall that Avail, that a witnesses support, wall stable. The west have is not support lateral apparently standing without been had days, period wall at the east the time of week ten surely (which periodic If a check had been made fell. days) the once in a week ten would have included free-standing discovered, have been west wall would contractor’s attention have the architect would called dangerous admittedly condition. this imposed were the duties is, “What I think issue ‘supervision’?” upon term, the architects under Architects) (American General Con- Institute of A.I.A. part specifically contract, made a ditions in full set out conditions of these and Article quote opinion, I as follows: majority from which precau- necessary all shall take Contractor “The employees and shall work, on the tions provisions State, applicable Federal, comply with all pre- Municipal safety codes to laws adjacent persons injury about or on, vent accidents premises being performed. He where the work properly erect and maintain all at as re- times, quired by progress conditions all *12 necessary safeguards protection of workmen public post and the danger signs warning and shall against the hazards by created of con- features protruding struction as nails, hoists, elevator holes, well hatchways, scáffolding, openings, stairways window falling designate responsible materials; and he shall organization member shall whose prevention position be the accidents. name and person designated reported Archi- so to the emphasis]” [My tect the Contractor.
Referring portion, to the italicized I like to should why necessary ask it was that the the man re- name of sponsible given safety be architect unless charged responsibility architect was ty¶ with some for safe- majority only responsibility Under the view, the Wittenberg, Delony super- and Davidson, Inc., “was to completed, vise and that, the end when speeifica- plans would conform to the ** *” tions and the Little Rock I Code. re- supervision clearly iterate that, if sole responsibility of the contractor, what interest would necessary safeguards architect have in whether were provided for the workmen? At least, what interest that (as required contract) demand would notifica- tion? saying
Bear in that I am mind that the architects original opinion majority are nor liable, did the so state. simply saying jury am I that, cited, under facts question presented relative whether the archi- supervision charged of the work to the tects safety regulations would end be observed. respectfully I therefore dissent.