PIKE v. HOWELL BUILDING SUPPLY, INC

MILLS, JUSTICE, FOR THE COURT:

¶ 1. In her complaint, plaintiff alleged both breach of contract and simple and gross negligence in the construction of a convenience store. At trial, defendants were allowed an "assumption of the risk" instruction, in effect precluding recovery. The jury found in favor of the defendants, and judgment was entered accordingly. The Court of Appeals reversed and remanded, finding the instruction to be improper, but also finding that all of the factors of assumption of risk should be set out on re-trial. This was error. Furthermore, the facts presented established that there was insufficient proof of negligence or breach of contract to submit to a jury in this case, and a directed verdict should have been granted for the defendants. Therefore, we reverse the judgment of the Court of Appeals with the result that the judgment of the Leake County Circuit Court is reinstated and affirmed.

¶ 2. On May 13, 1987, Doris Strong entered into a construction contract with Howell Building Supply, Inc. and Howell Construction Company, Inc. This contract provided for the construction of a convenience store on Highway 35 North in Leake County, Mississippi. The convenience store was to have gas tanks and pumps. Construction and installation of these items were contracted separately by Doris Strong with Winstead Petroleum Equipment Company. Howell subcontracted the pouring of the concrete for the store to George "Bud" Burnside.

¶ 3. When the time came to pour the concrete directly above the gas tanks, Burnside expressed concern about how the tanks had been installed. His opinion was the dirt placed around the tanks was not of the right type to be sufficiently compacted to provide adequate support for the concrete on top. He expressed his concerns to Doris Strong and her husband B.L. Strong, as well as Clark Howell, owner of Howell Building Supply, Inc. and Howell Construction Company, Inc. B.L. Strong then asked Burnside if extra steel in the concrete would make any difference. Burnside responded in front of Doris Strong that adding extra steel would not hurt but in the end the concrete would still not hold up. Howell was aware of the problem and B.L.'s suggestion of extra steel.

¶ 4. Burnside went ahead and added the extra steel and poured the concrete, apparently with Howell's knowledge. However, as predicted, over time the concrete gave way causing a gas line to rupture. As a result, Doris Strong brought suit in the Leake County Circuit Court against Howell Building Supply, Inc., Howell Construction Company, Inc., United States Fidelity and Guaranty Company, and Winstead Petroleum Equipment Company. Doris Strong eventually assigned her interest in this case to the Estate of B.L. Strong. After deliberations, the jury returned a verdict for the defendants, and judgment was entered accordingly. On appeal, Doris maintains that the following instruction submitted by the defendants improperly instructed the jury regarding the assumption of risk defense:

If you find from a preponderance of the evidence in this case that Doris Strong, before the pouring and finishing the concrete, was informed of the fact that the underground fuel tanks had been improperly compacted and, that she chose to have the concrete poured and finished anyway, then Doris Strong assumed the risk of damage and Plaintiff cannot recover from the Defendants, Howell Building Supply, Inc., Howell Construction Company, Inc., for any damages resulting therefrom.

¶ 5. The use of the language "assumed the risk" in this instruction was a poor choice of words, leading the trial court and the Court of Appeals through an incorrect application of the law of assumption of risk. The assumption of risk defense applies to personal injury tort actions. While the appellant did charge negligent construction, this is primarily a contract action, and assumption of risk is inapplicable to this case.

¶ 6. Quite simply, this case deals with notice and waiver. Regarding this issue, we have previously said that

[A] contractor who knows, or should know of a defect in a particular subsoil does not perform his contractual obligations in a workmanlike manner if he fails to notify the owner of the existence of the condition.

Annotation, Duty of Contractor to Warn Owners of Defects in Subsurface Conditions, 73 A.L.R.3rd 1213, 1215, (1976).

"Mr. Lewis (the contractor) had a duty to volunteer information as to the contents of the fill and underlying soil." Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1198 (Alaska 1975); Rippy v. Phipps, 475 P.2d 646 (Colo.App. 1970); Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (1967); Greneaux v. Castle I, Inc., 404 So.2d 309 (La.App. 1981) ("For the contractor has expert knowledge of such things, or should have, and he must bring these things to the attention of the owners, who have no knowledge of such affairs." 404 So.2d at 311) (quoting Wurst v. Pruyn, supra; Luxurious Swimming Pools, Inc. v. Tepe, 177 Ind. App. 384, 379 N.E.2d 992, 996 (1978); Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978).

¶ 7. We have also found that

In 17 C.J.S., Contracts, § 491, p. 992, it is said "A party to a contract may waive provisions for his benefit; and likewise there may be a waiver of conditions precedent or severable stipulations." See also Moore v. Yazoo M.V.R. Co., 176 Miss. 65, 166 So. 395; Tower Underwriters, Inc., v. Culley, 211 Miss. 788, 53 So.2d 94; Oden Construction Co. v. Helton, 218 Miss. 41, 65 So.2d 442; 12 Am.Jur. pg. 918, Sec. 354. A waiver may be inferred from the actions and conduct of the parties. Waiver usually results when there is an intentional relinquishment of a known right. 17 C.J.S., Contracts, § 492, p. 995. . . .

¶ 8. In this case, a directed verdict for the contractor would have been appropriate under this notice and waiver analysis. As previously pointed out in George B. Gilmore Co. , supra, this Court held that a contractor has a duty to warn as to the content of the fill and underlying soil. In the case sub judice, it is clear that the contractor, via its subcontractor, warned the owners of the unstable soil fill around the gas tanks, and that the concrete would not be adequately supported. The duty to notify the owners was fulfilled. Thereafter, the actions of the Appellants in instructing the contractor to proceed constituted a waiver of any defect in the pouring of the concrete caused by the insufficient fill and compaction of the underlying soil. Judge McMillin, writing the Court of Appeals dissent in this case, aptly addressed this premise as follows:

. . . In this case, we have an issue of an act by the contractor that, in itself, is neutral in terms of negligence. Pouring concrete over poorly compacted soil, knowing that the concrete will not last as long as it would if the underlying soil were better compacted, is not, in itself, a negligent act. It may be a poor decision from a business standpoint if one hopes to enjoy the use of the poured concrete for an extended period of time, but that does not necessarily make the act negligent.

In the same context, an owner's decision, in the midst of a construction project, to forego the added expense of further soil compaction efforts and merely hope that adding steel reinforcement to the overlying concrete will provide the usability the owner desires — even in the face of informed opinion that this is not the likely result — does not invoke considerations of competing negligence that is a necessary consideration in a comparative negligence case.

¶ 9. The case went to the jury. The jury found for the contractor. Even if the instruction which "caused" the Court of Appeals to reverse was not proper, it was not reversible error. In Wallace v. J.C. Penney Co., 236 Miss. 367 , 109 So.2d 876 (1959), this Court found that an assumption of risk instruction was error because it eliminated any distinction between assumption of risk and contributory negligence. This Court affirmed despite the error because "[N]o judgment shall be reversed on the ground of misdirection to the jury . . . unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice." 236 Miss. at 373, 109 So.2d at 878 (quoting Miss. Sup. Ct. R. 11). As the Court explained, "[E]rror in instructions is not prejudicial as against an unsuccessful plaintiff who has no cause of action, who is not entitled to recover in any event, or who fails in his evidence to support the cause of action. . . ." 236 Miss. at 373, 109 So.2d at 878 (quoting 3 Am. Jur. Appeal Error § 1112). See also M.R.C.P. 61.

¶ 10. In the instant case, the jury's verdict is not a miscarriage of justice. As also pointed out by Judge McMillin in his dissent, what else could the subcontractor, and hence the contractor, do? The owner was told — the duty was satisfied — and the owner chose to proceed. The owner failed to prove that the contract was wilfully breached and failed to show that the contractor was negligent or grossly negligent.

¶ 11. For these reasons, we reverse the judgment of the Court of Appeals with the result that the judgment of the Leake County Circuit Court is reinstated and affirmed.

¶ 12. REVERSED.