*1 filling out forms. There is medical testimo- ny that, to inju- the effect because of his Larry BEALL, Jr., al., Appellants, et

ries, plaintiff perform is unable to work requiring prolonged standing walking or time, more than one or two hours at a LO-VACA GATHERING COMPANY al., Appellees. doing et that he should avoid even work which required long him periods to sit of time. No. 980. City doctors, relies on letters from ad- Court of Civil Appeals Texas, City officials, indicating that plain-

dressed Corpus Christi. tiff refused to follow medical advice and 16, Oct. 1975. to that he able return to his normal duties. There also testimony City Rehearing Denied with Dissenting employees plaintiff to the effect Opinion Dec. 1975. change bandages regularly not his legs dirty bandages and often worked with his pajamas

or with under his trousers.

Both and his wife testified that he

followed the his directives of doctor. clear that the evidence con

cerning impairment plaintiff’s earn sharp capacity was conflict. This properly

factual issue was submitted

jury verdict resolved the issue

plaintiff’s favor. In view of the evidence

relating inju severity plaintiff’s

ries, capacity perform his diminished (the

physical only type labor of labor

which he is fitted in view his limited

education and intellectual ability), and concerning unsatisfactory per

evidence his assigned

formance duties him aft

er returned to work his following injury, say

we cannot that the award shows that it passion, prejudice

was the result of or other motive,

improper the amount

awarded result of a deliberate

and conscious conviction in the minds of

jurors, or that so the amount awarded is

excessive as to shock a court’s sense of

justice. Grocery Company H. E. Butt Quick, (Tex.Civ.App. — San e.). n. r.

Antonio writ ref’d have

Since we concluded that award excessive, City’s point asserting

was not

as error the failure of the trial court remittitur,

order a must be overruled. judgment of the trial af-

firmed. *2 Wilde,

Company, Edwin Walter Wilde indi- vidually and as Executor Independent the Estate of Fenton A. Burkie L. Jimmy Harlow and Hall. February 28,1975,

By judgment rendered granted the trial court Lo-Vaca’s motion summary judgment pleas and sustained privilege filed on behalf of all other defendants, County, residents of Tom Green except for Hall. general He filed against denial and the cause him was sev- ered and retained for trial in Nueces Coun- ty. appeal judgment. The Bealls from that 27, 1972, February younger On Beall injured while riding his motorbike west down a to east “turn row” on the property Young Wilde. Beall was attend- a motorbike being contest held on an airstrip abandoned owned Walter Wilde and leased to Harlow and Hall for motor vehicle and motorbike races. The property upon racing which the events were being directly adjacent held is to that owned by and, fact, Edwin Wilde portions of the airstrip abandoned extend onto Edwin property. Wilde’s airstrip The itself was shaped “N”, like an paral- inverted with the Henderson, Hope, Hoh- Hope, James E. running lel sides from north to south. Run- Antonio, appel- Georges, man San & and ning parallel north south and near to lants. westernmost runway top is a hard sur- face known as Cemetery Road. The desig- Redford, Burnett, Dyer, Wray Dyer, S.E. nated access to the race facilities ex- Jr., Meredith, Corpus Woolsey, & M. W. from Cemetery tends Road to the southern Hanz, Christi, Angelo, for Marvin C. San However, edge runway. of the the “turn appellees. open Cemetery row” is also Road along edge the north runway. There was OPINION testimony that the “turn row” was also gain used to access area. race YOUNG, Justice. upon young “turn row” Beall was and summary judgment This combination injured was east and west across the north- injuries case arose from plea privilege parallel edge portion ern of the run- year motorbike by a sixteen old sustained way approximately on the border between moving his rider he was wrested from when adjacent tracts owned the Wildes. his a cable hitting motorbike high August be- July road about neck of 1970 the private across a Concho origi- action Electric poles. Valley Company erected two 32' tween two personal injuries brought the center utility poles approximately as one for nated Beall, Sr., next individually pole edge and as with one each by Larry Beall, Jr., son, Larry apart minor “turn-row” about 40-50' to supply of friend of his Gathering electricity grain storage bins owned against defendants Lo-Vaca Thereafter on Edwin Wilde. October ceased upon the acceptance of the 1970, Lo-Vaca leased ten acres of land from property by the landlord Edwin Wilde. storing for the purpose Edwin Wilde primarily relies on the case welding pipe. The ten acres included the Gehrig, Strakos v. (Tex. runway por- and that edge northern Sup.1962). In Strakos a contractor em *3 “turn tion of the row” the ployed by the State to improve widen and In utility poles were located. order to allow eight an mile section of road. After com large gain storage trucks access to the pleting the improvements the contractor welding graded areas Lo-Vaca and the left open post several by holes covered spread row” and caliche over “turn the along weeds an old fence line. The contrac To deter truck graded surface. traffic tor’s accepted by work was the county. going poles, between Lo-Vaca appellant Thereafter Strakos fell into possession while in of the ten acres a one of these unmarked holes and suffered poles or the utility ap- wire cable between injury. severe In its decision the Supreme ground. 40"-50" proximately off rejected of the lower decision appellant Larry this cable which Beall court which relied the case of T. J. inju- and which was the cause of his struck Gorsline, Mansfield Const. Co. v. 288 S.W. expired in April The lease of 1971 at ries. (Tex.Comm’n App.1926) for propo possession which time Lo-Vaca returned of sition that contractor owed no ten acres to Edwin Wilde. injuries third persons for suffered on prop alleges points of error: erty where worked, the contractor had once (1) that the trial granting court erred in the property was returned accepted by and Lo-Vaca’s motion for summary defendant contracting other In party. holding (2) judgment; and that trial court erred rejected Strakos pleas privilege of sustaining of de- “accepted work” doctrine and held that a fendants Edwin Walter Wilde indi- negligent contractor remained liable for vidually as of Independent and Executor work done or unsafe conditions left on and Estate of Fenton Wilde Burkie Harlow. premises premises even after are ac appellants’ of A determination the merits of cepted by the contracting other party. point ap- of error will also determine first mean, however, Strakos does not that point second of error. pellants’ contractor becomes strictly liable to third precisely, appellants’ first of More parties any negligent work or defective grant- is that trial court erred in error left premises on the after it had summary judg- Lo-Vaca’s motion for accepted. contrary, To the this deci- prove ment because Lo-Vaca as a sion only brings gen- contractors within the genuine that matter of law there was ho litigation. eral of rules tort as or issue of fact to one more essential of cause of action. In plaintiffs’ elements regard, it that was stated the Su- summary judgment Lo-Vaca its motion for preme Court page at 791 in the Strakos alleged the appellant proven that had no decision: against it. basis for cause of action cases, “. . .in certain con- factors or this motion was Lo-Vaca had vacated may completion ditions arise after the premises eight some months before work, including lapse sub- con- accident Lo-Vaca period time, stantial such as would clusively that their landlord and co- proved compel finding independent causes Wilde, was advised of the appellee, produce had injury. intervened readily accept- between the cable Lo-Vaca, in this condition. ed

therefore, holding as a applies contends that matter of law basic Strakos as it anyone coming onto the one temporary their this case who is in subject to the land, qualification as a rule is control such possession and lessee, grantee will all liabili- must disclose latent defect or not have contractor caused acts done to condition he knows or ty injury should grantee. know will not discovered upon relinquishment land terminate land. practical For all Lo-Vaca stood purposes position grantor of this in the same as and 353 of the Restatement

Sections 352 it the land to their land when returned Law, (2d), clearly set out the Torts lessor, During Edwin Wilde. the six-month land. upon transferring liability one has period preceding the termination their out the sets transferor’s Section 352 right had the exclusive lease Lo-Vaca existing time of conditions at possession, use and control over this land. transfer: lease, therefore, Upon termination it subject “. vendor of land is not . .a *4 reconveyed the land to Edwin Wilde in physical to his to harm caused grantor same much the manner as a would others while vendee or upon the land convey grantee. land to his possession by has vendee taken after the Strakos, In- condition, applying holding whether natural In any dangerous mon artificial, which the time above quoted or existed at section case, Restatement (Em- it vendee took to the facts of this possession.” that is properly granted clear that the trial phasis supplied.) court appellee summary Lo-Vaca’s motion for 353(1) exception an 352 to Section Section though This is even judgment. so under con- there are undisclosed where Strakos, ruling Court’s Lo- known to vendor: ditions liability for the escape could not of- Vaca or vendor of land who conceals “(1) A fending instrumentality simply by re- to his condi- fails to disclose vendee turning possession of the land to Edwin artificial, tion, natural whether or Wilde; and under Sections 352 and 353 of persons unreasonable risk to involves the Restatement Lo-Vaca had to land, subject instrumentality this disclose others vendee upon the land with the Wilde. vendee of the or his subvendee consent summary judgment proof Lo-Vaca’s physical harm caused eighteen excerpts consisted possession, vendee has if after the taken appellee deposition of Edwin Wilde. Some have (a) the vendee does not know or testimony is deposition of Edwin Wilde’s as to know of or the reason the condition follows: involved, and risk Well, "Q up let’s to fall of back has reason to (b) the vendor knows or upon your Lo-Vaca came when first condition, and realizes or know of premises. you give Can me some idea involved, and has realize the risk should of months after their in times arrival will believe that the vendee reason to you first became aware there the condition or realize not discover that we was that horizontal cable have (Emphasis supplied.) risk.” talking about? Further, holding Ap- of the Court guess I . A If months . . States United peals the 5th Circuit in A I’d say my That’s months. estima- Inmon, (1953) applicable 205 F.2d 681 . tion. Inmon held that this case. Yes, Q sir. Then answer would grantee your grantor land to the liability of put that the cable across the south- for the or defec- persons or third utility poles ern and northern sometime of the land ceased tive conditions year This in the 1970. possession and control. transfer A End of 1970. defendant negate must the plaintiff’s

possibility recovery by offering summary judgment proof which shows that the de Q in late 1970 noticed you When fendant is prevail entitled to as a matter of horizontal cable between the two Therefore, law. the defendant must show erected, what, if anything, uncontrovertedly that cannot you do? win the lawsuit because will he be protected A lives with anything. Not prove unable to recovery element in his going them around it. . cause of action but also that as to that element the defendant Q prevail. must you’re saying you Then did not Glenn Prestegord, unofficial, 901 (Tex.Sup. any protest, make official or 1970). anybody? here totally has failed to prove negligence, any, if No, A sir.” appellee Lo-Vaca proximate was the cause Appellee Edwin Wilde further stated that injuries. of his There is absolutely no evi- up Lo-Vaca cleaned the land to his satisfac- dence that Lo-Vaca failed to disclose the April May tion and in of 1971 left the offering existence of the instrumentality to and never returned. Therefore, its landlord Edwin Wilde. Lo- *5 by appellee This evidence offered Lo- Vaca’s liability upon ceased acceptance of support Vaca in of its motion for summa- the land any Edwin Wilde and cause of ry judgment clearly shows that as a matter has, appellant action that any, if must law, discharged duty Lo-Vaca had against land, lie the owner of the Edwin upon disclosure to Edwin Wilde and vacat- Wilde. premises April May in 1971 Appellants’ summary judgment proof any liability terminated it had for con- consists of the sworn affidavits Larry cable. Its liabili-

structing the horizontal Beall, Beall, Larry Jr. and Sr. Taken in a as matter of law ty ceased a at this time. light most favorable to appellants, these pointed

As our out in these affidavits state that Lo-Vaca v. Motors 450 Corp., Gibbs General S.W.2d the property leased from Edwin Wilde and (Tex.Sup.1970), appeal 827 on that Lo-Vaca constructed the cable across summary judgment in a case “is not wheth They the road. fail to state basis summary judgment proof er the raises fact which this can find Lo-Vaca liable issues with reference to the essential ele after it returned the land to Edwin Wilde. plaintiff’s a claim a cause of ac ments of Additionally, there is no conflicts between tion, summary judgment but is whether the appellants’ appellee affidavits Lo- establishes as a matter of law that proof summary judgment proof Vaca’s genuine there is no issue of fact as to one or inconsistency which an over a fact issue is plain more of the essential elements Hamman, 618, raised. Gaines v. 163 Tex. tiff’s cause of action.” See also Schrader v. (1962). For the reasons set Garcia, (Tex.Civ.App 516 690 out above appellants’ point first of error is . —Cor writ); Holzapfel no pus Christi therefore overruled. (Tex.Civ.App Brueggman, 404 S.W.2d Appellants’ second of error e.). n. r. Corpus Christi writ ref’d . — appellant also overruled because has failed When a defendant moves for sum requirements to meet the of Tex.Rev.Civ. he must show as a matter mary judgment (1964). In Stat.Ann. art. 1995 4 order to § law, there prevail that he will since is no maintain venue under 4 of Art. 1995 there § to at least one essen genuine fact issue as are three essential elements which must be First, plaintiff. cause of action. established plaintiff’s tial element of purpose driving trucks from keeping one of the defend must show that plaintiff poles. two The lease county expired where suit between the in the resides ants Second, allege April, returned prop- must 1971. Lo-Vaca plaintiff brought. erty the wire still action between resident the owner with joint cause of intimately utility poles. connected between two be action so can or cause of against summary judgment purposes the nonres assumed for cause of action with the may joined two that the created a situation that the wire ident defendant multiplici to users of the land. intended avoid under rules Third, must show plaintiff ty suits. accepted property Wilde this condi- against resident de of action a cause tion and was aware of existence of Maples, Stockyards Nat. Bank fendant. cable between at opinion (1936, Tex. 95 S.W.2d property back from accepted time he Co., Socony Inc. v. Mobil Oil adopted); pos- After Wilde had come into Lo-Vaca. Co., Bell Tel. 518 S.W.2d Southwestern Larry property, session of the 1974, writ (Tex.Civ.App. Corpus Christi — Beall, injured Jr. was when struck e.). r. As was stated earlier in this ref’d n. riding wire cable while his motorbike has not opinion established property. Wilde’s against the defend cause of action resident original opinion af- This Court our Therefore, Lo-Vaca. the trial court ant granting trial action in firmed the court’s privi granting pleas was correct in summary judgment Lo-Vaca’s motion for Wilde, lege appellees Walter 1) Lo-Vaca, upon and held that: transfer- Wilde, individually independent and as ex had back ring estate of Wilde and ecutor Fenton the existence of to disclose to Wilde Burkie Harlow. condition”; 2) “dangerous that Lo-Vaca had judgment of the trial court there- and, 3) duty; that in view of satisfied that fore affirmed. *6 by the accept- such disclosure Lo-Vaca and Wilde, property by of Lo-Vaca’s ance the NYE, Judge (dissenting Chief on motion liability plaintiff as a to the ceased matter rehearing). for at I of law that time. am now convinced we were in error. dissent. in his respectfully Appellant I rehearing the of points out error motion question with The law in Texas raises a recognizing that the in not Su- this Court legal by to effect respect given Wilde’s adopted Court of Texas has not preme knowledge or awareness the existence 353, Torts, 352 or Sections Restatement dangerous at time he ac- condition recogniz- of this in not the error Court and cepted majority back. The property expressly Supreme Court has ing that the continues to assert the existence of holdings to the of this Court. contrary held (as knowledge acceptance) such factors and exists in A facts general statement liability plaintiffs, causes to Lo-Vaca’s to and, therefore, de- opinion majority as law cease a matter of at the time Wilde un- of the facts becomes statement tailed possession property. of the in took rule However, summary of necessary. a short is Texas that such factors do not cause facts is set forth as follows. pertinent cease, to as a matter of Lo-Vaca’s contrary, such factors ma- (hereafter law. On the are Gathering Company Lo-Vaca (10) question of whether Lo-Vaca) ten acres terial to fact to leased as referred 21, dangerous creation of the it was Lo-Vaca’s Edwin Wilde on October of land from condition, accept- in negligence or Wilde’s purpose leasing 1970. Lo-Vaca’s this and fail- welding ing property condition storing pipe. and was for condition, remedy that was the ing property, Lo-Vaca on the While plaintiff’s injuries. poles for cause of proximate or wire between cable 368 majority gerous 352 and applies Sections 353 condition left may contractor

of the Restatement of the Law of Torts be for injuries liable resulting therefrom (Second) and holds Lo-Vaca was under does mean not who creates the duty the dangerous to disclose condition danger escape liability. should The Su (wire strung between poles) to Wilde at preme Court held that of lia Wilde possession, time retook and hav- bility should determined or controlled so, done its termi- the fact of causation (foreseeability). The ipso nated facto as a of law. matter court proximate stated: “Absence of cause is not established as a matter simply of law

Although I believe that the law as set out because premises in a Torts, the Restatement Sections 352 or a 353, contractor’s law, defective work have should be the I must also accepted.” (Emphasis supplied.) recognize principle, the rule that when a provision rule or law has been decided The Supreme Strakos, by ex- highest having juris state pressly rejecting the “accepted work” doc- case, particular diction such decision trine, refused to follow and applicable made binding precedent lower courts of rank the rule of law as set out in Section 352 of again when the same presented in a (Second). Restatement of Torts McCain, subsequent Swilley suit. 374 The majority, although agreeing that un- (Tex.Sup.1964); Morriss-Buick der the ruling Strakos Pondrom, 98, Lo-Vaca could Co. v. 131 Tex. 113 S.W.2d (1938, opinion escape liability adopted); offending instru- Metal Textiles, Corporation mentality simply by returning possession Structures Plains Inc., Wilde, (Tex.Civ.App. S.W.2d 93 land to added the exception that — Amarillo e.). writ r. ref 'd n. (Second), under the Restatement Torts Sections 352 and Lo-Vaca had a at Texas has not as transferring time of the property back adopted Torts, yet the Restatement of Sec Wilde disclose condi- tions or 353 as the law in Texas. existing, having so, tion done liabili- its fact, it actually contrary has held to it. ty ceased as a of law matter at that time. Section of the Restatement of Torts may Lo-Vaca’s mitigated disclosure have (Second) “accepted is like the work” doc damages, or the may disclosure have raised trine. This yet doctrine which is to be proximate fact issue that cause of adopted in Texas to the effect that al plaintiff’s injuries rests with though contractor is per found have *7 landowner, but such disclosure not ex- negligent premises formed work or left in original onerate Lo-Vaca from mischief negligence an unsafe condition and such as a matter of law. proximate to be a of injury, found cause must nevertheless be held to be immune (or awareness) The of factor disclosure of liability, solely because his work has by the lessor dangerous condition complete accepted been and has been in the (Wilde) in and its effect was discussed unsafe condition. See T. Mansfield J. the court opinion. Strakos There said: Gorsline, (Tex. Const. Co. v. S.W. (Wilde’s) employer’s “The awareness of rule, App.1926). Comm’n Such like Section bearing the danger has no on the contrac- Restatement, 352 of is not the law in (Lo-Vaea’s) could, tor’s of care. It yet. Texas course, be to the material “accepted The work” specif doctrine was proximate employer’s neg- cause or to the ically overruled by Supreme Court in an ligence accepting in the work failing written Justice opinion by Norvell in Stra remedy a dangerous condition.” Gehring, (Tex.Sup. kos v. There, 1962). held that the fact opinion is clear from the Strakos that that who over a Supreme one assumes control dan Court did not intend that someone work, ed with over a stipulated his control position would be relieved Lo-Vaca’s merely disclosing to Wilde turned where work is over to the owner all condition, dangerous negligently a the existence in manner so defective as in- Supreme Court I believe dangerous [parties].” but inherently be third such or awareness disclosure tended has, therefore, The majority announced considering ques- be a factor in would with single new rule in accord Texas cause; is, was it proximate tion of case, Lo-Vaca, by holding by giving erecting the cable negligence in Lo-Vaca’s notice Wilde utility poles the two was between existing property on the at the time injuries; or plaintiff’s cause of proximate excused property was returned accepting the negligence it Wilde’s was itself of as matter of law. condition and with prevailing abrogated, rule is to If the remedy dangerous condition failing to such prerogative it is the Su- exclusive injured, that was a plaintiff became before mod- to announce the preme Court of Texas injuries? cause plaintiff’s proximate apply prevailing ification. I would majority the United relies on States rule; whether issue exists as to that a fact Appeals case States [United wire erecting negligence Lo-Vaca’s Inmon, (CCA 1953)] as 205 F.2d 681 5th Cir. proxi- between the the law the facts of this controlling under injuries. plaintiff’s I mate cause of general Inmon approves case. The case granting would the trial court’s reverse rules in 352 and 353 of Restate- Sections judgment and remand summary Torts, approval but ment of that court’s case for trial. the restatement does not bind Texas Supreme Court this Court. Restate- Torts,

ment of Sections 352 and was in Supreme

existence at the time the down the

handed decision. Strakos ample to then opportunity adopt

court had restatement, but declined to do so. Sec-

tions 352 and of the restatement are in “accepted identical with the work substance DRAKE, Appellant, L. Millard rejected specifically doctrine” Supreme Court. Before the Court’s decision in MUSE, KOHEN, Appellees. & CURRIE independent rule was that an Strakos No. 18699. injuries was not liable for sus contractor Texas, Appeals Court of Civil parties by third after the contractor tained Dallas. completed and it had the work had accepted over owner. turned 30, 1975. Oct. Company, v. Neece Lumber Nedler See *8 Rehearing Denied Nov. 1975. (Tex.Civ.App. no — Waco writ). To alleviate the harshness of this developed in the exceptions rule numerous exception primary decisions. The

Texas rule stated general San Coolidge- in Hartford

Antonio (Tex.Civ. Company, 314 S.W.2d

Locher writ). no Antonio

App. — San of the con stated “the part after he has is continued even

tractor