Hewitt Contracting Co. v. State Highway Department

Nichols, Presiding Judge. The defendant correctly concedes that the ground of demurrer wherein the question of governmental immunity was raised was without merit. Therefore, the trial court erred in sustaining this ground of general demurrer. See State Hwy. Dept. v. W. L. Cobb Constr. Co., 111 Ga. App. 822 (1) (143 SE2d 500). It is contended that there was a nonjoinder of parties plaintiff inasmuch as the contract was between the State Highway Department as one party and Hewitt Contracting Company and Sowega Contracting Company as the other parties while the sole plaintiff named in the petition is Hewitt Contracting Company. In support of this contention the defendant cites cases exemplified by Wagner v. Biscoe, 190 Ga. 474 (9 SE2d 650), and Sowell v. Sowell, 212 Ga. 351 (92 SE2d 524), where it was held that in equity relief cannot be obtained against a party not before the court and therefore such party is an indispensable party. The present case is not in equity and the reason Sowega Contracting Company is not a party is shown by the — 772 — plaintiff’s petition and the stipulation, which was made a part of the petition, to be that Sowega Contracting Company has no further interest in the contract, having been paid in full for its performance under the contract. Under such circumstances, as shown by Bernstein v. Fagelson, 38 Ga. App. 294 (143 SE 237), Sowega Contracting Company was not a proper or necessary party to the case. As to the consideration of the stipulation in passing upon the demurrers see Cordell v. Metropolitan Life Ins. Co., 54 Ga. App. 178 (3) (187 SE 292). Under the same stipulation the demurrers attacking the petition for failure to attach the contract and other documents, as well as those attacking the petition for attaching as exhibits correspondence and so forth which showed compliance with the provisions of the contract and documents incorporated therein by reference, requiring formal claim, requests for arbitration and so forth were without merit and should have been overruled. The remaining question for decision is whether the allegations of the petition dealing with the actions of the State Highway Department present facts to make a jury question as to the actions of the State Highway Department’s engineers “whose decision in the matter it had by contract agreed to be final, was so tainted with bad faith, gross mistake, or failure to exercise honest judgment as to amount to fraud.” State Hwy. Dept. v. W. L. Cobb Constr. Co., 111 Ga. App. 822, supra. See also State Hwy. Dept. v. MacDougald Constr. Co., 189 Ga. 490 (6 SE2d 570). The defendant, in support of its contention that the trial court correctly sustained its demurrers to the allegations of the plaintiff’s petition showing the decision of the engineers, argues that such decisions were, under the terms of the contract, final and that under the allegations of the petition the plaintiff had no further delays “after he complied with the conditions required by the engineers.” Such argument does not answer the question presented by the defendant’s demurrers, for it is recognized by the plaintiff, and is indeed the law as shown by the above decisions of the Supreme Court and this court, that the decisions of the defendant’s engineers are in fact final, and the sole question is whether such decisions were “so tainted with bad faith, — 773 — gross mistake, or failure to exercise honest judgment as to amount to fraud.” Obviously, when the plaintiff complied with all the engineer’s demands he suffered no further delays. The petition alleges that certain demands were made by the “engineer” which resulted in extensive delays and unnecessary expenses in the completion of the plaintiff’s work under the contract. It is further alleged that such demands did not relate to the quality of the work to be performed by the plaintiff. The demands dealt with repairs to the machinery used to manufacture asphalt and with the contamination of one of the ingredients used in such process. As to the quality of the ingredients it is alleged that after the plaintiff was delayed it was admitted by the defendant’s representatives that supposed “contamination” was of no moment, would not affect the quality of the asphalt being produced, and could only be detected by the use of an ultraviolet ray machine which had been used for the purpose of this one project only to substantiate the claim that the “contamination” existed when such claim could not be substantiated by the commonly used test then being employed on other projects. And as to the machinery used to manufacture such asphalt it was alleged that repairs were required to be made which in no wise affected the product to be manufactured. These allegations, if true (and on consideration of demurrers it must be assumed that they are true), authorize a finding that the decisions of the “engineer” were of the category referred to as “so tainted with bad faith, gross mistake or failure to exercise honest judgment as to amount to fraud.” Accordingly, the trial court erred in sustaining the defendant’s demurrer and in dismissing the plaintiff’s petition. Judgment reversed. Bell, P. J., Frankum, Jordan and Deen, JJ., concur. Felton, C. J., Hall, Eberhardt and Pannell, JJ., dissent.