Faubion v. Piedmont Engineering & Construction Corp.

342 S.E.2d 718, 178 Ga. App. 256, 1986 Ga. App. LEXIS 1636
CourtCourt of Appeals of Georgia
DecidedFebruary 26, 1986
Docket71464, 71465, 71466
StatusPublished
Cited by9 cases

This text of 342 S.E.2d 718 (Faubion v. Piedmont Engineering & Construction Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faubion v. Piedmont Engineering & Construction Corp., 342 S.E.2d 718, 178 Ga. App. 256, 1986 Ga. App. LEXIS 1636 (Ga. Ct. App. 1986).

Opinions

Pope, Judge.

After a fire damaged a warehouse owned by Jack A. Faubion, he engaged Piedmont Engineering & Construction Corporation (Pied[257]*257mont) to repair the warehouse. In turn, Piedmont subcontracted the roof repairs to Chattahoochee Contracting, Inc. (Chattahoochee) which subcontracted the roof welding work to Tom’s Ornamental Iron Company, Inc. (Tom’s). On December 11, 1979, while the repair work was in progress, a second fire occurred which destroyed an inventory of mechanical and electromechanical parts for discontinued NCR accounting machines and cash registers. Faubion brought suit against Piedmont, Chattahoochee, and Tom’s alleging breách of contract against Piedmont, and negligence against all three. The jury returned a verdict in favor of Faubion in the amount of $11,000 against Piedmont and $22,000 against Chattahoochee and Tom’s. The cross-claims of the defendants were submitted to the court alone, and the court found against each defendant on its cross-claim. We will consider each appeal in turn.

1. In Case No. 71464, appellant Faubion argues that a new trial is necessary because the trial court erred in refusing to allow Victor Paliuca to testify as an expert witness in regard to the marketability of the lost inventory. At issue in the trial was the value of the NCR parts destroyed in the fire. A corollary to that issue was the extent of the market which was available to appellant in which to sell the parts. Appellant offered Paliuca not as an expert on value, but rather as an expert on the marketability of the parts; that is, the extent of the market for such parts and how long it would take appellant to sell the inventory. Paliuca’s qualifications were that he had been in the business of rebuilding, reconditioning and retailing office machines for 35 years, and thus had bought many of these parts over the years. On voir dire in regard to his qualifications, Paliuca conceded that he had never been in the parts business but had retailed machines only. Appellant argues that as a buyer of parts, Paliuca was the market and qualified as an expert on the market for such parts. The record shows that after the trial court refused to consider Paliuca an expert, it offered to let Paliuca testify as a non-expert stating facts he knew about the market for refurbished machines, the number of such machines in existence, if he knew, and then to give his opinion based on this on how long such machines would last. Appellant did not avail himself of this opportunity.

“An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which his testimony relates. The question of whether a witness is qualified to give his opinion as an expert is one for the court. His determination will not be disturbed except that it be manifestly abused.” (Citations and punctuation omitted.) Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219, 220 (312 SE2d 386) (1983). “ ‘While expert witnesses may give their opinions as to facts, principles, and rules involved in the science [or trade] in which they are [258]*258learned, they are not, as to questions lying out of the domain of the science, art, or trade in which they are experts, exempt from the restriction of the rule which requires witnesses to state facts and not opinions.’ [Cit.]” Southern R. Co. v. Cabe, 109 Ga. App. 432, 443 (136 SE2d 438) (1964) (trial court abused discretion in allowing witness, qualified as mechanical engineer, civil engineer, and registered land surveyor, to give opinion on optical illusions).

We do not find that the trial court abused its discretion in not allowing Paliuca to testify as an expert. Appellant argued below that one who has bought Fords for 35 years would be qualified to give an opinion on the market for Fords; that one need not be a Ford dealer to give a market opinion. While we agree that one need not be a dealer in a particular item in order to be an expert in the marketing of the item, it does not follow that merely being a buyer of the item over a period of time qualifies one as an expert on the market. Paliuca conceded that he had no experience in marketing parts. Therefore, it is clear that the opinion testimony sought was not within his expertise. Appellant declined the opportunity afforded by the trial court to allow Paliuca to testify to that which he did know, the market for refurbished machines. For the reasons stated, we find no error in the trial court’s ruling.

2. In Case No. 71465, Piedmont appeals the trial court’s failure to grant its motion for directed verdict in regard to Faubion’s breach of contract claim against it. Before the case went to the jury, Faubion withdrew his allegations of negligence against Piedmont and proceeded solely on the theory of breach of contract. No one refers us to a written contract between Faubion, or his predecessor in interest, and Piedmont, nor does our review of the record show one. Faubion alleges that Piedmont violated its contractual duty to see that the work to repair the warehouse was done skillfully, carefully, diligently and in a workmanlike manner. Although Faubion alleges in his complaint that this was an express provision of the contract, he points to no evidence in the record to support this contention, nor do we find any. Piedmont denied any such express provision and put up no evidence at trial.

The contractual duty alleged here is implied in every contract for work or services. Howell v. Ayers, 129 Ga. App. 899 (1) (202 SE2d 189) (1973). Faubion argues that the destruction of the contents of the warehouse through the negligence of Piedmont’s subcontractors in performing the repairs breached this duty owed to it by Piedmont under the contract. Piedmont argues that it breached no duty owing to Faubion because the work which was the subject of the contract was completed with no defects; and that it cannot be held under contract for the collateral torts of its subcontractors when they are independent contractors and there exists no express contractual provision [259]*259holding it liable for such torts. We agree with Piedmont that the trial court erred in denying its motion for directed verdict.

Faubion does not argue on appeal that Chattahoochee and Tom’s were not independent contractors. Therefore, absent an express contractual duty, Piedmont cannot be held liable for damage caused by the collateral torts of independent contractors. See Fields v. B & B Pipeline Co., 147 Ga. App. 875 (250 SE2d 582) (1978); OCGA § 51-2-5 (3). In Fields, plaintiff granted an easement to the Clayton County Water Authority to construct a sewer across his property. The Water Authority subcontracted the work to B & B Pipeline which, in turn, subcontracted a portion of the work to Gause Construction Company. While performing its work, Gause damaged walnut trees owned by Fields outside the area of the easement. Fields sued the Water Authority and B & B Pipeline for trespass and breach of contract. The easement sued upon contained language that “ ‘grantee . . . shall exercise reasonable diligence in doing the necessary work in connection therewith so as to avoid damaging the property . . .’” Id. at 876. The court held that this language was not sufficient to impose upon the general contractor liability for the collateral torts of the independent contractor.

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Faubion v. Piedmont Engineering & Construction Corp.
342 S.E.2d 718 (Court of Appeals of Georgia, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
342 S.E.2d 718, 178 Ga. App. 256, 1986 Ga. App. LEXIS 1636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faubion-v-piedmont-engineering-construction-corp-gactapp-1986.