*1 аgainst Sheppard ceed compensation under workmen’s stat- cause of action Johnsons’ qualifies injuries, by utes barred the personal for an thereun- was award for der, compensa- year cause of action statute of limitations. two tion carrier not against does acсrue claim of the minor Insofar as the party third until amount of plaintiff Tommy is concerned by award made Accident Industrial Johnson by bar Limitations there is no limitations. by Board paid carrier until against claim until will not run his the claimant obtains a judgment final Farm, adjudged majority. reaches State in a competеnt jurisdiction court of $1,500, to him in the liable amount against such insurance carrier. When against claim subrogated to his enforceable occur, either of events these the cause of Sheppard. of a non-suit did taking His against action party matures the third in the assertion of prejudice either him by the suit authorized 6a Section asserting it as his Farm claim State must be filed such ei- cause of action correctly subrogee. The trial by ther carrier or insured judgment in Farm rendered favor State within years two from that date.” Sheppard against the amount found gives statute which State Farm represеnt jury damages rights as against to the claim Johnsons’ Tommy Sheppard liable which Sheppard is Tex.Ins.Code art. 5.06- Ann. Johnson. V.A.T.S., 1(3) (1967), provides: which af- judgment of the court is “(3) In the payment event of except as amount the re- firmed to the person coverage under the required against Sheppard. cоvery Farm Section and to the terms and so The trial court’s is reformed conditions coverage, of such insurer adjudge Farm recovery as to making payment shall, such extent against Sheppard $1,500 amount thereof, proceeds be entitled to interest from date of the trial resulting settlement or judgment. court’s from the any rights exercise of recov- ery of person against any person
organization legally responsible
bodily injury, disease, sickness or
death for payment which such is made.”
There is nothing in that statute or oth- er statute prevented the Johnsons Texas, Appellant, The STATE of from against proceeding Sheppard both and State Farm at the same time. There Judyth vir, Appellеes. no statutory provision that effected a waiv- TENNISON er of the against claim Johnsons’ No. 12042. Farm against Shep- because their suit Texas, Court pard before a disposition final successful Austin. of their against claim State Farm. May 30, 1973. bases Courts held that a compensation workmen’s carrier’s Rehеaring Denied June action, cause of subrogee as of a workman against a party, third until does not accrue is adjudged subrogor liable to its do not action,
exist as to State Farm’s as cause of
subrogee Shep- Johnsons, against
pard. claim, Its as subrogee adult *2 Gen., Hill, Atty. Harry L. C. John
Green, Gen., Austin, Atty. appel- Asst. for lant. Weldon, Davis,
Terry Byrd, L. Eisen- Clark, Austin, berg appellees. for & PHILLIPS, Chief Justice. Appellees brought suit under Tort prоvisions of the Texas terms and 6252-19, Act, Ann. Claims Article Vernon’s The trial court rendered Statutes. pursuant appellees, to which judgment for appeal in this perfected Court. affirm.
We
points
six
of
us on
The State
before
error,1
four,
re-
together,
the first
briefed
plead and
appellees
late to the failure
appel-
prove
duty
appellees by
owed to
points.
these
lant. We overrule
Tennison, while
Appellee, Judyth S.
State, fell in an anteroom
employee
entry
building on the
a state
near the
This
Camp Mabry in Austin.
by the
building
and maintained
is owned
required
Appellee’s injury
of Texas.
and short-
laminectomy
performed,
to be
iliofemoral
ly
she contracted
thereafter
plaintiff-appellee
entering judgment
trial court
No. One: The
Point of Error
pleading
overruling appellant’s
no
of violation
because there is
motion for
erred in
duty
18b of article
owed under sec.
failure
based
plead
gross
willful,
prove any
wanton or
appellee
6252-19 of
violation
omission;
ly negligent
appellee by appellant;
Point of
act or
owed to
trial
erred
Error No. Four: The
The trial court
of Error
Two :
Point
No.
plaintiff-appellee
entering
of law numbеr
erred in its conclusion
quoted
viola
no
because there is
evidence
is that
in that the rule of law used
second, torts,
under sec. 18b of
by restatement,
tion
sec. 342
any willful,
wanton
article
6252-19
law this state
is not the
occupier’s
grossly negligent
licensee;
act
omission
or
appellant.
Point
court erred
The trial
Error No. Three:
law the
conclusion
again
its second
which she
thrombophlebitis for
liability as li-
spi-
State’s
court established
consequence
As a
hospitalized.
phle-
censor as follows:
complications of
surgery
nal
and the
bitis,
seriously
and will
appellee is
disabled
liability for
2. “A licensor
the rest of
treatment
require medical
caused
personal
a licensee
injuries to
*3
her life.
if:
premises
a
the licensor’s
condition on
duty
this
owed
gist
The
lawsuit is the
has reason
A. The licensor knows or
appellee,
Tenni-
Judyth S.
the State to
realize
to
condition and should
know the
son,
according
Texas Tort Act
under the
risk of
that it involves an unreasonable
The trial court
to the facts before us.
licensees,
ex-
harm to
and should
overruled the State’s motion
pect
not
that such licensees will
discover
pleadings
failure
or
based on the
danger,
realize the
proof
duty and found
of a violation of this
measured
duty
that
of a licensor is
B. And
to exercise
the licensor fails
care,
ordinary
a
to warn the li
standard of
to
reasonable care
make the condition
condition or make the condi
censee of the
safe or to warn the
licensee
the con-
tion
The standard of
involved,
safe for the licensee.
dition and the risk
and
duty
the trial
is that found
used
C. The licensee does not know or
Second,
Torts,
the Restatement of
Section
have
to
reason
know of
condition or
342 .2
the risk involved.”
maintains
appellee,
that
Ju-
the
It is well sеttled
Tennison,
dyth
the host of
licensee
invitee
duty
only
owes him a
an-
to warn
and that under the doctrine
correct known
Inc.,
conditions,
Weingarten,
nounced in
but
Carlisle v. J.
also a duty of reasonable
220,
inspection
(1941)
to dis
Tex.
S.W.2d 1073
cover
conditions,
only
and that such a
duty that licensor owes to
licensee
host is charged in law
knowledge
with
injure
willfully, wantonly
not to
her
what a
inspection
reasonable
through gross negligence.3
would reveal.
Genell,
Flynn,
Inc. v.
163 Tex.
358 S.
further
contends that the Act W.2d
(1962);
Halepeska v. Callihan
imposes
duty
no
due
to a limi-
Interests, Inc., 371 S.W.2d
(Tex.1963).
tation
18(b)
contained
Section
V.C.S.,
of art.
6252-19
to
“As
to
followed
wit:
the trial court in
premise defects,
government
this
the unit
case is
much narrower. The com-
shall
ments
owe to
claimant
Section
Restatement Torts
by private persons
expressly
to a licensee on
withhold the duty
inspec-
private
tion
property .
.”
from the host
is,
of a licensee. That
(b)
occupier’s duty
2. “The rule
lie
to
fails
exercise reasonable care
Restatement,
safe,
make the
licensees
formulated in
condition
or to warn the
Second,
licensees of the
as
condition
follows:
and the risk in-
‘Dangerous
volved,
Conditions
Known to Pos-
(c)
sessor
the liсensees do not
know
reason to
know
condition
possessor
liability
A
of land is
”
risk involved’
physical
harm caused
licensees
if,
only if,
on the
condition
land
but
3. Also see Chekanski v. Tex. & N. O. R. R.
(a)the
possessor
Co.,
(Tex.Civ.App.1957,
has
knows or
reason
S.W.2d 935
e.) ;
Knights
writ
know of
ref. n.
condition
and should
r.
Mendez v.
Hall,
(Tex.Civ.
realize
involves an
Columbus
unreasonable
W.2d 737 shall government “. . . unit of e.) the San Antonio Court only any owe to claimant Pope stated speaking Judge privatе on private persons a licensee rule as follows: in the question .” property . . The then, duty owed defining the a licensor case is one of general that “The refer- a licensee. owes a licensee a with licensor to Mabry. No. The trial of Error Six: Five: The Point Points Error No. failing findings in to find as triаl court erred of fact number court erred finding requested 11, appellant’s number fact in that there is no evidence 1, support finding of Texas nor neither such record any agent employee had actual thereof thereof of Texas servant dangerous con- slick or condition had Mаbry. Camp Camj) building at dition of the floor 14 at floors
223 concluded, injury. likely and the ma- of the condition to cause jority States, 272 agreed, this Court has Ford 200 F.2d See United v. Cir., Berger (U.S.Ct. App., 1952), to warn a licensee 10th condition 89, Shapiro, 20(1959), arises if the licen- A.2d . v. 30 152 N.J. 525, Prosser, seq., see or has know Law knows reason to 55 A.L.R.2d 60, in- p. (4th 1971). shоuld realize that and 380 ed. § volves unreasonable risk of harm duty imposed by 342 of Re licensees, expect and should that such espoused statement of Torts and licensees will not discover realize effect, majority, obliterates the common 1 danger.” (emphasis added) licen law distinctions bеtween invitees and occupiers imposes
I
agree
sees
on owners and
am unable
the above
single duty
statement is
law
of reasonable care under
gener
Texas.
Christian,
al rule is that a
circumstances. See Rowland v.
licensor owes a licensee
97,
duty only
active,
wilful,
Cal.Rptr.
69
.2d
70
P.2d
Cal
references to
negligence.
(1968).
wanton
states the courts
Carlisle v.
some
Wein
J.
garten, Inc.,
deliberately
those distinc
137 Tex.
abolished
152 S.W.2d
Christian, supra,
tions. Rowland v.
Pick
(1941),
Drug
Lewis,
Renfro
Co.
Honolulu,
City
ard v.
County
Tex.
ants, known of that condi- should have However, inadequate is finding
tion. showing support the since judgment, required. actual support the
record contains no evidence agents knew
finding that the State condition. a licen- law, defining the clear; equally clear by licensor, is
see apply that obligation Court to of this judgment and would reversе
law. I appellant.
render HINOJOSA, Appellant,
L.L. Lopez, Brownsville, ap- Homero M. Appellee. LOVE, E. V. pellant. No. 769. Graham, Brownsville, Franklin Jr., T. appellee. Texas, Court of Civil Corpus Christi.
May 10, 1973. *6 OPINION
YOUNG, Justice. brought against
E. L. Love this suit V. promissory Hinojosa L. to recover aon note. The trial court entered against default the defendant. Defendant’s de- trial was motion for new оverruled appeals. fendant 16, 1972, plaintiff suit. On filed June served on Defendant was with citation filed, so No answer was 1972. June plaintiff sought and a de- granted Au- July fault on On 1972. 8, 1972, gust defendant filed his motion Sep- new trial which overruled overruling the The order tember neither motion for new trial recited that ap- attorney nor defendant’s defendant peared hearing. A at the facsimile into ev- note, was introduced trial, idence follows: at the