*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
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
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