Walker v. Wittenberg, Delony & Davidson, Inc. , 242 Ark. 97 ( 1967 )

412 S.W.2d 621 (1966)

Robert T. WALKER, Appellant,
v.
WITTENBERG, DELONY & DAVIDSON, INC., and Harter Marblecrete Stone Company, Inc., Appellees.

No. 5-4008.

Supreme Court of Arkansas.

December 5, 1966. On Rehearing March 6, 1967.

Howell, Price & Worsham, Little Rock, for appellant.

Cockrill, Laser, McGehee & Sharp, and Rose, Meek, House, Barron, Nash & Williamson, House, Holmes & Jewell and Robert M. McHenry, Jr., Little Rock, for appellees.

HARRIS, Chief Justice.

Sometime prior to December, 1961, Ruebel and Company, Little Rock funeral directors, decided to construct a funeral home on West Markham Street. Wittenberg, Delony and Davidson, Inc., Little Rock architects, were employed to design the building, and in furtherance of the employment, these architects prepared plans and specifications. In doing so, they designed the outer walls to be built from pre-cast concrete slabs. The architects then sent their proposed design to Harter Marblecrete Stone Company, Inc., the proposed manufacturer, for suggestions. Harter made some suggestions for change in the design of the slabs, and thereafter manufactured them in accordance with these changes. The architects let the contract for construction to Cone and Stowers, and agreed with Ruebel, for an additional fee, to supervise and inspect the construction. The exterior walls of the building were to be these pre-cast slabs, 10 feet high, 8 feet wide, and 3 inches thick.

Robert Walker, appellant herein, was a brick mason, who had been engaged in the task of laying light aggregate blocks behind the pre-cast concrete slabs. After these blocks had been laid on the east wall of the building, nearly to the top, the bracing, which had been holding the slabs upright, was, at the direction of the assistant superintendent for Cone and Stower, removed in order for the top two courses of blocks to be laid. Walker was standing on top of the wall, and when the last brace had been removed, the wall fell outward, and appellant suffered the injuries for which he subsequently brought suit. Complaint was instituted against the architects,^[1] it being alleged that said architects were negligent in failing, under their contract, to prepare proper plans, and in failing to supervise construction after award of the contract. Subsequently, the complaint was amended to make Ruebel and Company a defendant, it being alleged that this company was negligent in failing to have a licensed architect to supervise the work as provided by Little Rock Ordinance No. 204,^[2] and still later, Harter Marblecrete Stone Company, Inc., was made a defendant, it being alleged that the pre-cast stone panels were of faulty design; that Harter negligently failed to warn of the inadequacy of the design and the danger created thereby, and also negligently failed to submit specifications for the use and erection of said panels to prevent them from falling during construction. After the filing of answers, amendments and interrogatories, the case proceeded to trial, and at the conclusion of appellant's evidence, the court instructed the jury to return a verdict for both appellees. From the judgment so entered, appellant brings this appeal.

We think the court erred in directing a verdict for the architects. In the first place, an architect's liability for negligence which results in personal injuries or death may be based upon his supervisory activities. 5 Am.Jur.2d 688, Paragraph 25. It is undisputed that Wittenberg, Delony and Davidson, in addition to preparing the plans and specifications, were also employed to supervise the construction, and for this they received a special fee. The employment of the architects was done under Little Rock City Ordinance No. 204, which requires that an owner engaged in the erection of a building where the estimated value exceeds $25,000.00, shall employ a registered architect, or a licensed engineer, to supervise the construction of the building. The A.I.A.^[3] General Conditions were explicitly made a part of the specifications in the contract (with the Construction Company), stating, "A.I.A. Document No. A-201, 1952 Edition of the American Institute of Architects, are hereby made a part of this specification to the same extent as if bound herein." Article 38 of the A.I.A. General Conditions of the contract provides, inter alia:

"The Architect shall have general supervision and direction of the work. He is the agent of the Owner only to the extent provided in the Contract Documents and when in special instances he is authorized by the Owner so to act, and in such instances he shall, upon request, show the Contractor written authority. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract."

It is the contention of appellant that, since the architects agreed with the owner to supervise, and inspect, and were paid a fee for it, they had a definite duty to supervise the work, including the responsibility of taking steps to secure the safety of the workmen. Witnesses for this appellee admitted that the owner had no one else to inspect the work and see that it complied with ordinances, regulations, etc., and it was further admitted that no one from the architectural firm performed any supervisory activities. Mr. Tom Gray, an employee of Wittenberg, Delony and Davidson, testifying for these appellees, agreed that a free-standing wall, i. e., a wall that does not have any lateral support is not stable, and when braces are removed, such a wall will not stand.

The architects defended primarily on the contention, and they argue here, that their duty was to supervise and inspect only to the end that when completed the building would conform to plans and specifications, and they were also to determine that the construction was in compliance with the Little Rock Building Code. They assert that there was no duty upon them to direct or control the contractor in reference to the temporary support of the panels during construction. It is further contended that they were only required to make periodic visits to the job site (as a matter of determining that, when completed, the building would conform to the plans and specifications); that they were not responsible for the "on the spot" directions given by the assistant supervisor for the contractor, Henry Bowden, who directed that the braces be removed from the east wall; they were not present when the order to remove the bracing was given, had no knowledge thereof, and accordingly, cannot be held legally responsible.

It is true, of course, that if there was no obligation upon the architects to be present during construction, this argument would be valid. The contention that the sole duty of the architects was to supervise to the end that the building would conform to plans and specifications when completed, was likewise the principal defense in Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869, but we upheld a judgment against the appellant architects in that case. These appellees say there is a distinction between the present case and Erhart, for there, in setting out the duty of the contractor to shore and protect walls of excavations, there was additional language, "or as directed by the architects," and here, there is no specific reference to the architect in Article 12 of the General Conditions.^[4] We do not agree that these particular words preclude any possible liability on the part of architect appellees, for under A.I.A., as heretofore stated, the jury could have found that there was a responsibility on Wittenberg, Delony and Davidson to supervise in a manner consistent with appellant's contention. Appellant, and architect appellees, apparently are far apart in their interpretation of the meaning of the word, "supervise," and it is interesting to note that Webster's Third New International Dictionary shows the word, "supervise," (among other definitions as meaning), "To look over, inspect, oversee, * * * to coordinate, direct, and inspect continuously and at first hand the accomplishment of."

The architects insist that they were not derelict in any duty that they owed to the owner, but we stated in Erhart:

"* * * The issue here, we think, is not whether the architect breached any duty to the owner, but whether there was a breach of duty owed to the workmen by the architect arising out of the safety provisions of the contract."

Appellee cites cases (nearly all from other states) in support of the position taken, but, as stated, we think Erhart is applicable.

We hold there is a fact question here as to the duties imposed upon the architects under the term, "supervision." Does this term prescribe only such supervision as contended by appellee? Is there significance in the omission of the phrase appearing in the contract in Erhart, "or as directed by the architects," or, on the other hand, was there a duty, as contended by appellants, upon the architects, under the term, "supervision," to take positive steps to insure the safety of workmen during the construction? To some extent, the agreement is ambiguous, and where a contract is ambiguous, a question of fact is created to be passed upon by the jury. El Dorado Real Estate Co. v. Garrett, 240 Ark. 483, 400 S.W.2d 497. We think sufficient evidence was offered to submit the question to the jury.

We agree with the trial court that appellant's proof was insufficient to make a jury question as to the liability of appellee Harter Marblecrete Stone Company, Inc. There is no proof that the slabs were defectively designed or manufactured, and, in fact, this question (which was an allegation in the complaint) is not argued in the brief; as a matter of law, we agree with the trial court that these slabs were not inherently dangerous, nor was it reasonably foreseeable that a use would be made of the slabs which would cause injury to some individual. Similar contentions are discussed in our case of Lilly v. J. A. Riggs Tractor Company, 238 Ark. 1027, 386 S.W.2d 488. There, Roy Lilly was killed while endeavoring to repair a broken cable on a Caterpillar machine. His widow instituted suit against the tractor company, alleging that proper warnings were not given as to the safe manner for unsnarling a broken cable, and that the failure to give proper instructions and warnings constituted negligence on the part of the company, its agents, and employees. On trial, the court directed a verdict for the company, and Mrs. Lilly appealed. After discussing the function and manner of operation of the Caterpillar, this court, in affirming the action of the trial court, said:

"Appellant asserts that the Caterpillar was inherently dangerous, but we do not agree. Black's Law Dictionary, Fourth Edition, Page 921, defines ``inherently dangerous' as ``danger inhering in instrumentality or condition itself at all times, so as to require special precautions to prevent injury, not danger arising from mere casual or collateral negligence of others with respect thereto under particular circumstances.' Of course, no citation of authority is necessary to support the statement that the mere fact that one is injured by a machine, or instrument, does not mean that the machine or instrument is inherently dangerous. It has been said that a product is inherently dangerous where the danger of injury stems from the nature of the product itself. An automobile, driven at a high rate of speed—or without proper brakes —or if at night, without headlights—or if operated by one who is intoxicated— can certainly become a highly dangerous instrument, capable of causing death and crippling injuries. Yet, there is a general agreement among the jurisdictions that motor vehicles are not inherently dangerous (Annot. 74 A.L.R. 2d 1111). Numerous articles or substances, which have been held not to be inherently dangerous within the meaning of the rule, include an electric body-vibrating machine, an electric stove, a chain, a haybaler, a flat iron, a gas stove, a porch swing, a sofa, a refrigerator, and others too numerous to mention. See Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846. Still, all of the articles or instruments named can, by particular use, cause death or severe injury. In fact, as this court stated in Reynolds v. Manley, 223 Ark. 314, 265 S.W.2d 714, ``It is possible to use most anything in a way that will make it dangerous.' Of course, certain substances or articles are inherently dangerous, such as dynamite, nitroglycerin or other explosives, poisons, and many others. In the case before us, we are definitely of the opinion that the Caterpillar itself was not inherently dangerous; it was the manner of repairing that created the danger, i. e., it was the fact that the cable was deliberately cut, causing the spring to pull the ejector sharply back, that caused Lilly's death, rather than the fact that the Caterpillar was equipped with a cable and spring."

We think the reasoning in that case is applicable to this phase of the present litigation. It was not a manufacturing defect that caused the east wall to fall—rather the collapse of the wall was occasioned by the fact that the bracing, which had been holding the manufactured slabs upright, was removed. The designed wall met all requirements of the building codes of the city of Little Rock. Nor do we think that Harter could have foreseen that the bracing would be removed from the slabs while the wall was still being worked on. After all, Harter sold these concrete panels to a licensed and experienced contractor, and there was no reason to assume that the panels would not be handled with ordinary care and in accordance with good construction procedures. As Harter states in its brief: "This panel is no more an inherently dangerous object than a ladder which will fall if not placed against a steady object." As stated, there is no evidence that the panels contained any latent defects, nor any proof that they were in any manner dangerous when used in a manner consistent with the use for which they were made. We find no showing of negligence on the part of this appellee.

In accordance with what has been said, we affirm the holding of the Pulaski County Circuit Court (Second Division) in dismissing appellant's complaint against Harter Marblecrete Stone Company, Inc., but that portion of the judgment dismissing the complaint against Wittenberg, Delony and Davidson, Inc., is reversed and set aside, and the cause of action against this defendant is remanded back to the trial court, with directions to proceed in a manner not inconsistent with this opinion.

AMSLER, J., disqualified.

ON REHEARING

BYRD, Justice.

The original opinion in this case was delivered December 5, 1966, Walker v. Wittenberg, Delony & Davidson, Inc., 241 Ark. 525, 412 S.W.2d 621. Appellee, Wittenberg, Delony & Davidson, Inc., hereinafter referred to as "architect," is the only petitioner for a rehearing. The only issue^[1] before us is whether there was a contractual obligation upon the architect to be present continuously during construction of the funeral home where appellant, Robert Walker, a brickmason, was injured. We hold that the architect had no such contractual duty and that he had no duty to prescribe safety precautions for the contractor or to enforce performance of the safety provisions contained in the contract between the owner and the contractor, to which he was not a party.

The trial court, at the conclusion of appellant's evidence, directed a verdict in favor of the architect, hence the facts, viewed in the light most favorable to appellant, will be stated as if they were true even though some of them were controverted.

The facts giving rise to this litigation show that Ruebel and Company employed the architect to design a funeral home on West Markham Street in Little Rock. The design for the outer walls called for precast concrete panels ten feet high, eight feet wide and three inches thick, to be backed on the inside by light aggregate blocks. This design was adopted after the architect submitted his preliminary drawings and comments to the manufacturer of the panels because of the latter's superior knowledge, and then revised the design pursuant to the manufacturer's suggested changes. Upon the architect's plans and specifications, Ruebel and Company let the contract for construction to Cone & Stowers, appellant's employer.

At the time of the accident, appellant was laying light aggregate blocks behind the precast concrete panels. After the blocks had been laid on the east wall of the building to within two courses of the top, the braces holding the panels upright were removed to permit the top two courses to be laid. While the braces were being removed, appellant was standing on top of the wall, plumbing it. As the last brace was removed, the wall fell outward, causing appellant's injuries.

Appellant and his immediate supervisor both stated they did not know that the wall, without the braces, was dangerous or unstable. The west wall, identical to the east wall and from which the braces were removed before the accident involved here, stood a matter of days without falling. The architect admits the wall on which appellant was standing was a free standing wall without the braces, i. e. not stable, and that it would have a tendency to fall toward the outside. The wall was designed to be later tied into the roof for stability.

It is not contended that the architect knew the braces were being removed from the wall. The architect admittedly performed no supervisory activities in connection with the building of the funeral home. Apparently, the architect did inspect the premises from time to time.

It is the contention of appellant that the architect agreed with the owner to supervise and inspect the building, was paid a fee for it, and had a definite duty to supervise the work, including the responsibility of taking steps to secure the safety of workmen such as appellant. The architect's contention is that his duty was to supervise and inspect only to the end that when completed the building would conform to the plans and specifications and the Little Rock Building Code, and there was no duty upon him to exercise control over means and methods adopted by the contractor which did not affect the end result, i. e., there was no duty upon him to direct or control the contractor in reference to the temporary support of the precast panels during construction.

The actual agreement between the owner and the architect was oral. Gordon Wittenberg, a member of the architectural firm of Wittenberg, Delony & Davidson, Inc., and a brother to George Wittenberg, an officer and part owner of Ruebel and Company, testified there was no formal written agreement between the architect and the owner for furnishing architectural services. He stated that the architectural services included preparation of plans and specifications and periodic inspection while the building was under construction, and that while his firm prepared the plans and specifications, the building contract was let by the owner. The architect was to receive six per cent of the contract price, of which one and one half per cent was allocated to the special engineering supervision required by Section 204 of the Building Code of the City of Little Rock.

George Wittenberg, of Ruebel and Company, when asked whether Ruebel and Company had employed an architect to comply with Section 204 of the Building Code, stated:

"We employed Wittenberg, Delony & Davidson, to perform all of the duties of an architect for us and in our behalf."

Section 204 of the Building Code provides:

"Section 204. Inspection and Special Engineering Supervision.

"The building Inspector shall inspect or cause to be inspected at various intervals during the erection, construction, enlarging, alteration, repairing, moving, demolition, conversion, occupancy and underpinning all buildings and structures referred to in this Code and located in the City of Little Rock, and a final inspection shall be made of every building and structure hereafter erected prior to the issuance of the Certificate of Occupancy as specified in Section 206.

"No building construction, alteration, repair or demolition requiring a building permit shall be commenced until the permit holder or his agent shall have posted the building permit card in a conspicuous place on the front premises. The permit card shall be maintained in such position by the permit holder until the Certificate of Occupancy has been issued by the Building Inspector.

"The Building Inspector upon notification from the permit holder or his agent shall make the following inspections of buildings and either shall approve that portion of the construction as completed or shall notify the permit holder or his agent wherein the same fails to comply with the law.

"Foundation Inspection: To be made after trenches are excavated and the necessary forms erected, steel placed and when representative samples of all materials for the foundation are delivered on the job.

"Frame Inspection: To be made after the roof, all framing, fire-blocking and bracing is in place and all pipes, chimneys and vents are complete.

"Final Inspection: To be made after building is completed and ready for occupancy.

"No work shall be done on any part of the building or structure beyond the point indicated in each successive inspection without first obtaining the written approval of the Building Inspector. Such written approval shall be given only after an inspection shall have been made of each successive step in the construction as indicated by each of the above inspections.

"No reinforcing steel or structural framework of any part of any building, or structure shall be covered or concealed in any manner whatsoever without first obtaining the approval of the Building Inspector.

"In all buildings where plaster is used for fire protection purposes the permit holder or his agent shall notify the Building Inspector after all lathing and backing is in place and all representative samples of plastering materials are delivered on the job and no plaster shall be applied until the approval of the Building Inspector has been received.

"Special Engineering Supervision: Any owner or his agent engaged in the erection or causing the erection of a building or structure where the estimated value exceeds $25,000 shall employ a registered architect or a licensed engineer to supervise the construction of the building. Such architect or engineer shall be licensed under the laws of the State of Arkansas and his service shall extend over all important details of framing, erection, and assembly and he shall render full inspection service and adequate supervision on such buildings.

"He shall be held directly responsible for the enforcement of this Code, wherever same is applicable to the structure upon which he is engaged. He shall notify the Building Inspector of any attempt to cover, conceal, patch, or repair, any defect in materials or workmanship before such materials have been examined by the Building Inspector, or his representative. He shall be held directly responsible for the infraction of any ruling of the Building Inspector, and shall have the authority to compel the removal of defective materials or to suspend or stop work, pending the ruling of the Building Inspector." (Emphasis supplied.)

Thus it is seen there was nothing in the agreement between the architect and the owner which required the architect to be continuously present during the construction of the building or to enforce the safety provisions of the contract between the owner and contractor, unless such a provision can be found in Section 204 of the Building Code.

Nor can we extend to the words "supervise" and "supervision," used in Section 204 of the Building Code, the requirement that the architect must exercise control over the means and methods adopted by the contractor which do not affect the end result. When read in its entirety, it is obvious that the purpose of Section 204 was to exact compliance with the Building Code and to hold the architect responsible to the building inspector in connection therewith.

We had occasion in Moore and Chicago Mill & Lbr. Co. v. Phillips, 197 Ark. 131, 133, 120 S.W.2d 722 (1938), to comment on the control as to means and methods adopted by a third party in contracts containing language such as "under supervision of owner's agent, as he may direct", and in so doing said:

"There are countless decisions of appellate courts construing stipulations in contracts, such as here involved, relating to the right of the owner ``to give directions'—``orders' and ``instructions' regarding the work as it progresses; and phrases such as ``in accordance with instructions'—'as directed'—``in such manner as shall be directed'—``under supervision of owner's agent, as he may direct' —and ``under the direction and supervision', are frequently construed. In all of the cases examined, some of which are cited, it is held that such phrases do not relate to the method or manner and do not govern the details or the physical means by which the work is to be performed. The Supreme Court of the United States has so held in two cases directly in point. Casement v. Brown, 148 U.S. 615, 13 S. Ct. 672, 37 L. Ed. 582; United States v. Driscoll, 96 U.S. 421, 24 L. Ed. 847."

Article 38 of the General Conditions of the Contract, A. I. A. Document No. A-201, 1958 Edition of American Institute of Architects, provides:

"ARCHITECT'S STATUS

"The Architect shall have general supervision and direction of the work. He is the agent of the Owner only to the extent provided in the Contract Documents and when in special instances he is authorized by the Owner so to act, and in such instances he shall, upon request, show the Contractor written authority. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract.

"As the Architect is, in the first instance, the interpreter of the conditions of the Contract and the judge of its performance, he shall side neither with the Owner nor with the Contractor, but shall use his powers under the contract to enforce its faithful performance by both.

"In case of the termination of the employment of the Architect, the Owner shall appoint a capable and reputable Architect against whom the Contractor makes no reasonable objection, whose status under the contract shall be that of the former Architect; any dispute in connection with such appointment shall be subject to arbitration."

Article 12 provides:

"The Contractor shall continuously maintain adequate protection of all his work from damage and shall protect the Owner's property from injury or loss arising in connection with this Contract. He shall make good any such damage, injury or loss, except such as may be directly due to errors in the Contract Documents or caused by agents or employees of the Owner, or due to causes beyond the Contractor's control and not to his fault or negligence. He shall adequately protect adjacent property as provided by law and the Contract Documents.

"The Contractor shall take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hoists, well holes, elevator hatchways, scaffolding, window openings, stairways and falling materials; and he shall designate a responsible member of his organization on the work, whose duty shall be the prevention of accidents. The name and position of any person so designated shall be reported to the Architect by the Contractor.

"In an emergency affecting the safety of life or of the work or of adjoining property, the Contractor, without special instruction or authorization from the Architect or Owner, is hereby permitted to act, at his discretion, to prevent such threatened loss or injury, and he shall so act, without appeal, if so authorized or instructed. Any compensation, claimed by the Contractor on account of emergency work, shall be determined by agreement or Arbitration."

When the architect's status under Article 38, providing that he "is the agent of the Owner only to the extent provided in the Contract Documents * * *," is read in connection with the safety provision of Article 12, it is at once apparent the architect was given no authority over the safety provisions except to see that the contractor designated a responsible employee whose duty was prevention of accidents and whose name and position were reported to the architect.

Construing the architect's agreement with the owner in the light of the circumstances under which it was made, the contract between the owner and the contractor, requiring the contractor to designate someone in his organization whose duty was prevention of accidents, certainly indicates the owner was not expecting the architect to also supervise day-to-day safety precautions. This is illustrated by the fact that the contract required the name of the person so designated to be reported to the architect, and by the fact that the owner, by requiring the contractor to furnish a person to prevent accidents, had already paid once for the prevention of accidents in his building contract with Cone and Stowers.

The presumption is that parties contract only for themselves, and a contract will not be construed as having been made for the benefit of a third party unless it clearly appears that such was the intention of the parties. Knox v. Ball, 144 Tex. 402, 191 S.W.2d 17, 164 A.L.R. 1453 (1945). Before an architect can be said to have agreed with an owner to exercise direct control over a contractor with respect to day-to-day safety supervision of a building contract, such agreement must clearly appear from the terms of the agreement, the conduct of the parties, or the nature of the work being performed.

Appellant argues that this case is controlled by Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (1960), but we disagree. There we had work involving a special danger to others which was known by the architects to be inherent in the construction of the J. C. Penney and Company building, Restatement of the Law of Torts, 2d, § 427; the architects were specifically employed by the owner to guard its interests by supervising construction of the building in addition to their architectural duties; and furthermore, the present danger to the injured parties was known to the architects.

Here the contractor's negligence causing the injury was in the manner in which the work was performed, the risk was not inherent in the work, and the architect had no reason to contemplate the contractor's negligence when the contract was made, i.e., the negligence here was collateral to the risk of doing the work. Restatement of the Law of Torts, 2d, § 426.

While the Erhart case states the correct rule as to the circumstances there prevailing, we think that the correct rule covering the circumstances here prevailing was stated in Day v. National United States Radiator Corp., 241 La. 288, 128 So. 2d 660 (1961). There the architects had prepared plans and specifications for a building which included a domestic hot water system. After installation of a boiler by the mechanical subcontractor, one of his employees lighted the boiler to test its operation. An explosion resulted, killing one of the subcontractor's employees standing nearby. The contractor had failed to equip the boiler with a thermostat and safety relief valve required by the specifications. The architects' contract required them to exercise "adequate supervision of the execution of the work to reasonably insure strict conformity with the working drawings, specifications, and other contract documents." This was to include inspection of samples, materials and workmanship and frequent visits to the worksite. The trial court and Court of Appeal (117 So. 2d 104) held that the architect was negligent, both in failing to inspect the hot water system during the course of installation and after completion and in approving the subcontractor's shop drawing which did not have a pressure relief valve for the boiler, and that such negligence was the proximate cause of the explosion. The Supreme Court held that if the case were one where the architects visited the site after completion of the installation and, knowing that the boiler was to be tested, failed to observe that the boiler was not equipped with the specified safety devices, they would not hesitate to say that the architects breached a duty and reasonably should have foreseen that the breach would cause damage. In reversing the Court of Appeal and directing dismissal of the suit by deceased's personal representative, however, they said:

"As we view the matter, the primary object of this provision was to impose the duty or obligation on the architects to insure to the owner that before final acceptance of the work the building would be completed in accordance with the plans and specifications; and to insure this result the architects were to make ``frequent visits to the work site' during the progress of the work. 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.

"Thus we do not think that under the contract in the instant case the architects were charged with the duty or obligation to inspect the methods employed by the contractor or the subcontractor in fulfilling the contract or the subcontract. Consequently we do not agree with the Court of Appeal that the architects had a duty to the deceased Day, an employee of Vince, to inspect the hot water system during its installation, or that they were charged with the duty of knowing that the boiler was being installed."

For the reasons stated, the directed verdict in favor of the architect is affirmed.

HARRIS, C. J., and JONES, J., dissent.

HARRIS, Chief Justice (dissenting).

The opinion handed down in this case on December 5, 1966, expressed my views as well as those of the court, and my thinking still conforms to the reasoning therein set out. However, because of some statements made in the present majority opinion, I desire to make a few additional comments.

The majority state that the only issue is "whether there was a contractual obligation upon the architect to be present continuously (my emphasis) during construction * * *." I do not agree that this is the issue, though, before commenting further on that question, I would like to point out that the record reflects that not even periodic checks were made, and if this had been done, the architect certainly would have noticed the free-standing west wall. Mr. Tom Gray, an employee of the architectural firm, testifying on behalf of the firm, agreed with other witnesses that a free-standing wall, i.e., a wall that does not have any lateral support, is not stable. The west wall had been standing without support for apparently a period of a week to ten days at the time the east wall fell. If a periodic check had been made (which surely would have included once in a week or ten days) the free-standing west wall would have been discovered, and the architect would have called the contractor's attention to this admittedly dangerous condition.

I think the issue is, "What were the duties imposed upon the architects under the term, ``supervision'?" The A.I.A. (American Institute of Architects) General Conditions were specifically made a part of the contract, and Article 12 of these conditions is set out in full in the majority opinion, from which I quote as follows:

"The Contractor shall take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hoists, well holes, elevator hatchways, scaffolding, window openings, stairways and falling materials ; and he shall designate a responsible member of his organization on the work, whose duty shall be the prevention of accidents. The name and position of any person so designated shall be reported to the Architect by the Contractor. [My emphasis]"

Referring to the italicized portion, I should like to ask why it was necessary that the name of the man responsible for safety be given to the architect unless the architect was charged with some responsibility for safety? Under the majority view, the only responsibility of Wittenberg, Delony and Davidson, Inc., "was to supervise and inspect only to the end that when completed the building would conform to the plans and specifications and the Little Rock Building Code. * * *" I reiterate that, if safety supervision clearly was the sole responsibility of the contractor, what interest would the architect have in whether necessary safeguards were provided for the workmen? At least, what interest that would demand (as required by the contract) his notification?

Bear in mind that I am not saying that the architects are liable, nor did the original majority opinion so state. I am simply saying that, under the facts cited, a jury question was presented relative to whether the architects were charged with supervision of the work to the end that safety regulations would be observed.

I therefore respectfully dissent.

NOTES

[1] Wittenberg, Delony and Davidson is incorporated, but we shall refer to this appellee in the plural.

[2] On trial, the undisputed proof reflected that Ruebel employed Wittenberg, Delony and Davidson in a supervisory capacity, and the complaint as to Ruebel was dismissed without objection.

[3] A.I.A. is an abbreviation for American Institute of Architects.

[4] Article 12 sets out the requirements which are imposed upon the contractor to take necessary precautions for the safety of employees during the construction.

[1] Appellant has waived the contention that architect negligently failed to provide for adequate support of the precast panels by his failure to argue same on appeal. Fancher v. Baker, 240 Ark. 288, 399 S.W.2d 280.