*1 STRAKOS, Petitioner, John Respondent. GEHRING,
John H. Petitioner, INC., HUBBARD,
N. M. Strakos,
John John H. GEHRING and Respondents.
No. A-8422.
Supreme Texas. Court of
June
Rehearing 3, 1962. Denied Oct.
NORVELL, Justice.
upon jury findings,
Based
Strakos
John
judgment against
recovered a
G.
John
Hubbard,
Hub-
Gehring and N.
Inc.1
M.
against
bard
indemnity
was awarded
over
Appeals
Gehring. The Court of Civil
judgment against
affirmed the
Hubbard
against
nothing
decreed that Strakos take
Gehring.
granted
L. Huffman which was James Hubbard, Houston, Inc. Road ated into the State Farm-to-Market System. County Harris secured addi- Brown, Hill, Regnier, & Scardino way right agreed tional to relocate Abraham, Steely, Robert L. & Kronzer along both road. fencing sides Houston, for Strakos. county contracted with the to re- Kucera, place Lay along & them Painter move the fences Painter & Houston, Gehring. lines. right-of-way new did Lightfoot, findings court, party in the trial and this need rendered favorable ant 1. The Company, a noticed. third defend not be further Austin Road “practical acceptance” there was removal by the holes left fill June 19th, 1956, in when work was 18th or line. fence posts from the approved by spected county officials. meantime, Texas State In the *3 case, to Company apparently supra, The Austin Road Gorsline with the tracted en- authority Austin in primary the for the doc- and widen the road. Texas resurface the independent to do re- as a trine that an contractor is Hubbard subcontractor gaged road necessary prepare any duty general to the lieved of care to the dirt work to public acceptance by the road after of his his surfacing. The State doctrine, during employer. construc- public together This the kept open for use at erected rule that a manufacturer to tion, warning barricades were was not liable of the eight-mile general public the the section from defec- each end by the sup- products through and covered tive sold under construction intermediate road pliers, developed to have the contract. seems from Austin case of Wright, (1842) Winterbottom 2, 1956, had finish- July Gehring after On 109, M 415, & Eng.Rep. W L.J.Ex. upon had commenced and Hubbard ed 402. that there was dicta the ef- to involved, eight-mile road stretch of the only parties fect that to a re- contract could a the fence approached gate in Strakos negligent performance cover for of the con- to farm, he was Matthews where I. C. the Thus, “privity tract. of contract” became carpentry This fence do some work. earliest rationale for denial of Gehring ten moved about feet back been types in both of cases. Comment, See a hole Strakоs fell into contract. his Baylor 420, Law Rev. 37 Tex.Law Rev. 354. way to along entrance the border feet distant gate about ten Matthews developed this No sooner had doctrine hole had not filled therefrom. applied and been to the of cases two classes give sign or device to erected other nor mentioned, began than the en- courts to completed its warning of existence when graft exceptions upon regards them. As boundary moving along fence products liability for manufacturers and ap- farm. hole was the Matthews processors, exceptions largely swallowed depth feet proximately three in and virtu- Judge opinion the rule. With Cardozo’s by grass vegetation. ally hidden and other Co., MacPherson v. Buick Motor 217 N.Y. permanent shortening suffered Strakos it 1916F, N.E. L.R.A. permanent aggravation of an leg his became established a manufacturer has condition arthritic of his back. affirmative those who be rea- sonably expected products use Appeals, relying of Civil Court vicinity be in the of such usage, and hence the case of Mansfield Construction Co. duty by production breach of this 1067,2 Gorsline, Tex.Com.App., 288 S.W. safеty that are articles to human den., reh. 292 S.W. exonerated being reasonably used, while will establish liability on holding from all that Gehr- See, liability. Annotation, tort A.L.R. duty, ing no either owed contract 569. law, protect public traveling after acceptance County. the MacPherson case was work Harris rule of not Despite applied immediately the fact the contractor cases. formal apply payment by Instead, work and courts Gehring’s continued to Com doctrine, 12, 1956, giving July “accepted missioners Court until work” several not privity of Civil in addition to the justifications the Court found sufficient Annotation, support See 13 A. jury finding evidence rationale. adopted Although judgment Supreme opinion 2. not nor were expressly holdings the Commission Gorsline was rendered Supreme Commission, approved recommendation Court. however, general Gradually, Seemingly L.R.2d this Court has cited nonliability away opinion Gorsline except trend in Driver v. Worth evident, primary Co., but the Construction this area became 154 Tex. 273 S.W. of well- 2d group only this trend was vehicle for then general prop rule exceptions established osition that there can be no See, repudiation. without outright instead of its duty. spe breach of The Court Annotation, 865, 2(d). cifically 58 A.L.R.2d observed in the Driver § case
there was no contention made that the con think in the interest however, We tractor’s work had accepted and that law, clarity should statement we all the evidence roadway showed the in *4 exceptions not concern ourselves with volved there was still under construction. liability, which, products in the cases of as largely rule but should emasculated the A number of Court of Civil disapprove set forth now the doctrine opinions Gorsline, have cited but none of be Gorsline that a cannot in 1926 contractor “accepted these involved the work” doctrine. occurring injuries in tort held liable Usually, support the case is cited in by after of his work general rule that negligence presupposes injury was employer although the cause of duty a or to sustain proposition left condition in which the contractor a while still performing high- completion upon premises work, way owes care to the travel- this particular facts of work. Under public. ing Gehring calls our attention to reasonably antici case it could have been Taylor, Tex.Civ.App., Lewis v. 339 S.W.2d pated leaving hole near the of a However, no wr. hist. the issue there approach gate a farm access could cause employer involved was whether injury unfilled for a com if the hole be left responsible person to a third paratively period diffi short time. It is by caused defective work which ordinary why cult to see a failure to use accepted from the contractor. Such cases protect using the farm access care to those as this are not determinative the con- agreement road would terminated an be liability pre- tractor’s under the situation Why parties. contracting between the present sented A few cases record. an a distinction be made between should “accepted have considered the work” doc- accept day occurring the before injury citing trine case, without the Gorsline county of the contractor’s work ance may as insofar statements therein conflict time) (considering liability to exist at that here, they with what is said longer should no day injury occurring an after the and considered authoritative.3 contractually accepted? The work was authority rejection “accepted only cited in Gorsline Our work” imposition an a statement from doctrine is not holding now issue was absolute simply contractors. employer reject to an on We the effect that R.C.L. although public responsibility to the the notion generally incurs accepts performed negligent to have after he it from found work or for defective work in an premises unsafe condition The fact that one who as left the contractor. action or is found to control over a condition such sumes injury, cause of he must may proximate in never- by a contractor be liable for left liability solely held immune from therefrom does not neces theless be juries resulting completed has been danger that he who creates the because sarily mean accepted in an unsafe condition. escape liability. should ref.; Tex.Civ.App., See, Trout, wr. Hartford Werner 109 S.W.2d Co., Tex.Civ.App., Coolidge-Locher ref.; wr. Nedler v. Neece S.W.2d Co., Tex.Civ.App., no wr. hist. Lumber hist.; Tex.Civ.App., Beck, no wr. Jones v. consequences cling injurious the would render should urged that we It is leaving premises in reason an unsafe condition "“accepted doctrine for work” example wholly in this unforeseeable. For that, despite practical harshness its simpler jury reasonably might hold that unsoundness, it affords theoretical problem. view the circumstance that Hubbard approach to the and more workable obligated as simplicity Company Austin Road were regard if we were Even grade, defining legal pave road, and finish the paramount consideration could occurring be com- after foresee would nevertheless principles, we completion during effect finishing this reject suggestion. pelled process him Gehring within of which the holes left bring is to holding of our ordinarily litigation, where would have been filled and ren- rules of tort pro- dered questions harmless. Hubbard’s the basic resolve will posed subject cause, premises, action in and trial well Company, as those of Austin Road are and review guidance the usual problem retention circumstances bear appellate courts. foreseeability. in- may would doctrine also “accepted work” be true cases, unwieldy results certain factors or evitably yield thе same conditions *5 completion work, arise after virtually every other the in- have come about the formally lapse to the cluding period adhered the of a that has substantial jurisdiction time, envel- eventually compel becomes such as would finding that The rule rule. independent exceptions cover such complex pro- causes had intervened to oped nuisance, danger, injury. Torts, duce hidden See Restatement of as situations re- Supp., injury An dangerous suffered about inherently § conditions. having years case, after two after the that in each contractor’s work had be sult would acceptance accepted an been was that was involved in Werner v. decided there first Trout, Tex.Civ.App., to decide work, we would then have wr.ref. of the exceptions Court, applying “accepted all involving the various work” issues exception were any in case doctrine said: rule and to the negli- the basic issues applicable,
found liability “As of a affecting re- still proximate cause would gence tractor, believe that We consideration. main for party operates the other to thе oft-repudiated and rejection
outright independent as the intervention of an restore both doctrine would emasculated agency human which breaks the chain simplicity to the law.4 logic preclude as to of causation so a third cases, party asserting any that at the time relying in some on may be work, certain completion part of the on the of the contractor to expected reasonably safety to occur may care his in the construc- be use events time, passage of which, coupled with the the work.” tion of (cid:127) saying example, found that between that here is little difference 4. For gate reasonably Matthews which the hole was calculated hole near “inherently , harm and that could have cause left reasonably injury dangerous.” foreseen that re term was defined would That leaving “something the unfilled in and of itself is rea sult from and un which guarded sonably For a harm.” hole. discussion of this to cause Con calculated matter, position sidering see Annotation 58 and nature of the A.L.R.2d pointed approach therein, proximity As out hole, to the l. c. 871. its approach outright surrounding veg simpler gate lies with the and the Matthews “accepted repudiation dispute etation, of the work” difficult to doc it would be adoption “inherently finding and the of one which hole was dan trine ognizes rec “liability recog gerous.” should issue from This would involve danger accepted exception in the face work doc others nized reasonably practical purpose trine, foreseen.” there in agreement
While we are not with the also, Note, 37 Tex.Law. 62 Har Rev. arbitrary operation and mechanical vard Law Rev. 143. “accepted applied work” doctrine as in that jurisdictions courts of other case, suggests language quoted above legal numerous writers have reconsidered proper analysis, although question “accepted work” doctrine controls (foreseeability) causation the many exceptions slowly which have liability facts should determined from the emasculated it. editors particular each circumstances Restatement suggested, of Torts in section except cannot where reasonable minds 385, that one who erects a structure or differ, Ab- jury. is one for the issue creates оther condition on land is “sub- sence cause is not established ject liability to others within or without simply premises as a matter of law because the land bodily harm caused to them in a a contractor’s condition or the dangerous character of the structure or accepted. defective work has been It should condition accepted has been after perhaps circum- be noted that facts and possessor same rules as present stances of before the case us do * * * determining those involving injury a situation suffered one who as independent manufacturer or graded, after a road had surfaced and contractor makes a chattel for the use finally completed by another nor (Italics others.” supplied) leading Two re- in which an occurred some one writers in the field of torts have noted with period
mote of time. approval approach modern is to place contractors the same footing Comparatively squarely courts few goods manufacturers and apply the same distinctions, any, prevent considered if what *6 general principles negligence even after 1916, rule, announced in the MacPherson acceptance Prosser, Torts, the work. 2d applying to contractors. In Travis from Ed., 85; Harper Torts, James, 2, Vol. § Bridge Co., 79, 188 v. Rochester Ind. 122 18.5. § 1, Trout, supra, quoted in Werner v. N.E. Fletcher, In suggested is that Hanna v. U.S.App.D.C. the distinction manufactur 97 310, 231 469, product 847, over F.2d ers have more control their 58 A.L.R.2d cert. den. 989, 1051, supervision by others than 351 76 with less do con 100 U.S. S.Ct. L.Ed. 1501 a tenant sued landlord generally should therefore be and a contractor tractors general repair public stairway who had undertaken to responsible more for Thus, injured. which he work. in the Wer- was The trial the results that court contractor, noted that the dismissed the suit as ner Court hold “exactly ing that liability there could no performed the work as instructed be as a mat employer.” ter of law because his work had Further, accept work been “the done, and, prior In there ed to the accident. perfectly if was reversing the court, plans and not in the trial the Court of defect, it was in reconsider 525, repudiated “accepted 2 c. ed and execution of them.” l. work” doc trine, expressly overruling that such facts as these one of the We bеlieve lead 527. doctrine, question ing supporting cases properly negligence, relate to the Ford v. 361, Sturgis, App.D.C. duty. 253, If contractor’s work has been 56 14 F.2d not 52 619, curiam, performed, per there a certificate dismissed negligently should be A.L.R. 584, 126, as liability just there is for manu 266 U.S. 45 S.Ct. 453. In basis for L.Ed. opinion, analyzed the MacPherson rule. the course of its the Court Ac facturers rejected major ceptance of defective should three of rationales not be doctrine, viz., privity contract, negligent performance excuse legal work, prem general policy limiting leaving ground liability, nor Note, acceptance dangerous theory condition. See ises question to the em- operates a matter cause or intervening cause as as ployer’s the work said, negligence accepting cause must “The of law. Court legal remedy condi- failing fiction facts, decided on the up The ul- tion. set to bar a factual decision.” holding
timate as to the of the Court Inc., Booth, of Krisovich case v. John expressed language: tractor was in this 5, Pa.Super. 890, 121 A.2d also involved bridge “The Mac- resulting alleged described in the Pherson case bеtween manufacturer connection with a ditch near excavating user, public of an party judgment article and its third affirming sidewalk. privity not in man- liability of contract with the the Court ufacturer, rejected “accepted same that between work” doctrine and repairman a landlord’s contractor or support Relying cases cited it. repaired; and the tenant of the premises Torts, 385, Restatement of Grodstein § McGivern, each case conduct 154 A. Pa. expected often in- Foley Co., to result in Pittsburgh-Des Moines reasonably to one as a forseen Pa. 68 A.2d that the the Court stated probable “epochal” user.” MacPherson decision has engrafted practically juris- on the law of all Whittcomb, In Russell v. Inc., N.H. dictions. It was held that the contractor Supreme A.2d Court care, had a “social-legal” duty of and that Hampshire New reversed the trial court charged properly judgment, liability against which had denied failing guard against dangers foreseeable the defendant contractor on the basis to a being. reasonable human “accepted work” in- doctrine. The case volved alleged negligence improperly re- recent cases legal writings Other filling an city excavation in a street. announcing criticizing the modern rule and took note of the rule of non- the old rule are listed in the Annotations after and observed appearing in 58 A.L.R.2d § “the reasons advanced in its behalf not been entirely satisfactory indicated present case, In the other among *7 exceptions the fact that various flexible jury findings, Gehring the has found that developed.” The Court then question, posthole failed to fill the that he announced the rule that contractors “should place any warning object failed to in the be held to a standard of reasonable hole, grass that he failed to clear care protection parties of third who weeds from around the hole he and that foreseeably be endangered by the con- place failed to a barricade around hole.5 tractor’s even after Each of these omissions was found to be of the work.” It should be noted that the negligence and a cause the in of “qualification” went on to add á juries Gehring suffered Strakos. While employer if the discovers it danger law, he was not liable asserts as matter of becomes him, obvious to responsibility his specifically it is not contended here “supersedes” that of the contractor. We support there is no evidence record to cannot proposition. subscribe to this latter that, findings. several We hold these cannot employer’s The danger law, awareness of injury of as matter Strakos has bearing no on the duty contractor’s he was not foreseeable when could, course, care. postholes material to the unguarded along the road. left the jury 5. plans specifications answered “We do not” to an with the cordance inquiry they ordinary person prudence as to whether or not found as a thereof 19, 1956, Gehring that on ordinary or before June care would in the exercise comjjleted “had all work under his have done the same or similar County, tract with Harris Texas in ac- circumstances.” 794
Clearly to cor in and Hubbard’s failure devices around Hubbard’s the holes. condition, argument or warn rect basic is that he no was under noticed, auto which is was not at hereinafter care the time because accident matically a Strakos’ superseding cause of facts show that he had over no control Torts, In injury. Restatement 452. situs accident at time it oc- § stead, present the facts of a situa curred. The had this case found that Hubbard op negligence” “right tion of “concurrent which control” where land Tex-Jersey question produce injury. hole in erated was located and we believe Corporation 541, Beck, special exception Tex. 305 the absence of Oil v. 157 Walker, 162, 166, 1062; comprehended issue pleadings. S.W.2d 68 A.L.R.2d 603, Burgdorf, argues Hubbard Inc. 150 Tex. S.W. that his created contract 506, 509; no right 2d McAfee v. Travis Gas Cor condition of the poration, way except particular S.W.2d as to Tex. units or divi- Ballew, Gulf, Ry. C. & F. Tex. sions of S. area Co. over which Com.App., ap actually holdings assumed S.W.2d control and where he was proved by Supreme working; In such a that he brought Court. had not the hole persons being, “all into begun contributed had not on the whose acts therefor, segment or neg past unit of are liable and the road which ran ligence negli Matthews farm. of one does not excuse the gence of the other.” v. Texas & Atchison argument Hubbard’s rests these Co., Ry. P. Tex. facts: The section roadway covеred 231. Company’s Road Austin contract runs approximately
Gehring’s defense that contract did north his and south between Crosby and postholes Huffman filling eight not mention the vacant and is about long. accepted. plans miles Gehring’s Highway cannot of the State Department “stations”, filling divide prohibited neither the road nor into apart feet postholes, each designated by of these event his num- liability lies in bers. The stations tort and is not contractual. start at with No. 905 Liability grounded public policy progressively Huffman continue is higher numbers until behind the law station is dictates No. 1328 person Crosby. reached at every responsible injuries Matthews I. C. farm reasonably which are the Station foreseeable con- No. 1060. Hubbard’s sequence actual work commenced on acts or omissions. June Huffman, He started at Station No. anyone
Hubbard
if
farm,
asserts that
is which is north of the Matthews
intersection,
liable
Strakos’
Gulley
it is
also at
Gum
road
*8
responsi
1133,
he (Hubbard)
that should
held
be
Station No.
which is south of the
any way,
place.
judgment
ble
should have
July
Matthews
From
until
June
against Gehring
accident,
over
for common
in
law
the date
the
Hubbard’s
demnity. However, his essential
him
had taken
down the
Huff-
contention
road from
undisputed
Crosby,
is that under the
facts
the case man toward
as far as Station No.
Thus,
no
by
although
there was
working
owed Hubbard
care
he had been
and hence no
supporting
to Strakos
evidence
farm,
op-
on both sides of the Matthews
findings of
jury’s
part
brought
the
on
had not
erations
him to within a
place
of Hubbard.
mile of the
accident
the time
it occurred.
found that Hubbard was negli-
gent
scrape
in that he failed to
and
relevant
provisions,
clean
As to the
contractual
by
area around the
holes caused
Austin Road
re-
Com-
posts,
moval
the fence
to
with
failed
fill the
undertook
its contract
pany,
and
up signs
safety
holes
failed to set
warning
provide
to
travel-
State
provision of
this contract
public.
example,
guarantee
and to
and
ing
For
one
save
Party
harmless
stated:
of the First Part from
the contract
all
damage
claims and
suits whatever
and
provide
“The
shall
Contractor
nature, arising in connection there-
barricades, warning
adequate
maintain
(Italics
with.”
supplied)
flares,
at such
signs,
flags,
flagmen
and
Stressing
points
periods
phrase
time
the italicized
and for such
the con-
abovе,
tract
out
required
provide for the
set
argues
be
Hubbard
here
public
although
travel
safety
convenience of
he assumed the
re-
and
“entire
sponsibility”
and as di-
personnel,
and
obligations
Contractor’s
contractor’s
Flagmen
original contract,
shall
under the
Engineer.
including
rected
courteous,
safety
above,
detailed
speaking,
responsibilities
well
English
related
informed,
mentally
responsibility
able
physically
only
par-
and
attached to the
and
units
effectively
perform
actually
their duties
ticular
of work
being done
traffic
Hubbard
directing
and
and not
safeguarding
project.
overall
work,
protecting
and shall
and
scope
We cannot ascribe such a limited
at all times
neatly
groomed
attired and
provisions.
to these
Previous Texas cases
Flagmen,
direct-
duty.
when
while on
construing
pro
almost identical contractual
flags
ing traffic
the standard
shall use
safety responsibilities
visions on
indicate
in Instructions
signals
and
shown
provisions place
that such
a broad
High-
Flagmen published
the Texas
provide
contractors to
safety
way Department.”
public within the area under construction.
Com-
The contract between Austin Road
See
F. Buckner
Allen,
& Sons v.
Tex.
John
and
pany and the
was referred
State
Civ.App.,
272 S.W.2d
wr. dism. on
Austin
made a
of the contract between
part
hist.;
appeal,
second
289 S.W.2d
no wr.
contract, Hub-
Hubbard.
In the latter
City
and
of Austin
Schmedes,
Tex.Civ.App.,
generally
the dirt work
agreed
bard
to do
all
part,
reversed in
154 Tex.
contract,
such
the former
52 A.L.R.2d
shoulders;
re-
scraping
cleaning
Schwalbe,
Eubanks v.
Tex.Civ.App., 55 S.
trees, shrubs,
vegetation; wi-
moving
point
W.2d 906 affirmed on this
United
dening
roadway
moving
the ditch
Eubanks,
Fidelity Guaranty
States
&
Co. v.
packing
back;
sprinkling and
rolling,
Further,
126 Tex.
location bard certain alleged relating raises errors familiar with same.” thoroughly and is to two for a motions mistrial overruled general nature clear that court, It seems the trial and a motion supplement resulted, would have of Hubbard’s work the record in this case overruled later, correcting the condition Appeals. sooner Civil given We have Thus, had here. consideration, caused these issues due but in order area cleaned and unduly lengthen opinion, the entire not to we outset, injury to scraped Strakos simply state that the Court of Civil undisputed prevented. It is correctly disposed have been has these contentions. cleaned could have been that the entire road most, argument Hubbard’s final day or, is that if scraped in half at the maintains, however, entirely liable for day. Strakos’ Hubbard
full injury, business, he should at least be customary ad- in his to con more it is judgment tribute to the economically, proceed Hubbard. vantageous section, right contribution among He as he did. tortfeasors section the work established in Aus- was Texas provision in contract with the enactment cites Art. Vernon’s By involved would be con- Ann.Civ.Stats. that the tin terms, sequence Party its own this statute apply as First does not “in such ducted
797 contribution and statutory than rather of contribution any right case where the offender, Glazer, being principal the already by statute indemnity exists guilty species negli- policy, aggravated of a public more common law. reasons For among gence high than a failure to de- exercise contribution the common law denied care, position However, exception gree of was in no to com- joint tortfeasors. plain give of the failure court to the tortfeasors did was allowed where the “high In degree of each other. care” instruction. pari stand in delicto with allowed indem such the law cases common Lewis, In Drug Renfro Co. Tex. v. Lewis, Tex. nity. Drug Renfro Co. 507, plaintiff 235 S.W.2d was in- Re 609; & Humble Oil jured drug- a fall at the entrance of a Martin, Tex. 222 S.W. fining Co. v. store. He sued both the lessor lessee Glazer, Tex. 2d Wheeler v. premises, negligent found both were Article S.W.2d 140 A.L.R. failing keep premises in a reason- application if the situation has no here ably deciding safe condition for use. In indemnity exists under the is one where indemnity that the lessee was entitled to common law. lessor, from the this Court used the follow- ing test: 341, 153 Glazer, In 137 Tex. Wheeler plaintiff 1301, the 140 A.L.R. “Where injury forming the basis injured
was she when the streetcar which judgment against joint tort- riding was at a street collided with truck feasors results a violation of a truck jury duty intersection. The found the which one of the tort-feasors owes respects, negligent driver other, several latter, law, at common acquitted company the strеetcar is entitled to indemnity contribution or negligence. acts of trial court had de- from the former.” jury clined to that instruct the the streetcar found The Court that the lessor had breach- company “very degree high was under a lessee, ed as well as to the protection passengers care” for of its plaintiff, lease, because the terms of their that breach extraordinary this lessor had joint reserved at least appeal, would negligence. On the truck trol over entrance and expressly had complained driver of the trial court’s ac- obligated keep itself to the lessee to the en- tion, arguing jury might that repair. trance Since a common-law found company streetcar had existed, indemnity right Art. 2212 was apprised it been higher duty. of this In inapplicable. to be held event, that argued truck driver that City would be Smith, entitled to contribution under Ar- of San Antonio v. 94 Tex. ticle 2212. Rejecting argument, 1109, plaintiff this city S.W. sued the Supreme jury damages Court held that as the had recovered for nuisance. company found that the city’s streetcar exer- alleged system had that sewer ordinary emptied upon cised care and that the truck driver city; its sewer farm below the not, that the sewer farm had the fact bordered on that the trial Peidra court had creek; city negligently permitted charge upon failed to high degree sewage to discharged passen- care owed into the common carrier to a creek River; and thence into the ger was immaterial San Antonio Glazer, insofar as pollution truck, this resulted in concerned, owner of the had damage plaintiff’s premises company found that water sit- the streetcar city on the degree care, failed to uated river. answered high exercise a past place years, the immediate two company pari would not delicto possession farm had been in the sole with Glazer truck driver had failed sewer whose Hildebrand and Hamilton as ordinary to exercise tenants of care. The case was city; the tenants therefore exclusive indemnity one common-law *11 during sewage care, control of the waters and owed the other the same due pro- involved; city each duty ordinary the time that the had owed the to exercise sewage could care safety injured party. vided a tract of land for the where normally Both consumed without to violated these duties. Conse- tenants, quently, plaintiff; guilty and that the without each was the same city’s quality into authority, negligence the waters diverted toward in- river, damage jured resulting they workman. creek Thus stand in pari plaintiff. appeal, must, held that it was delicto On with each other and vicariously might statute, although city (Art. still 2212) share plaintiff equally arising liable to the for breach burdens from their protection, wrongful indem- it would be entitled to conduct.” tenants, nity the active from its who were language application This has the case wrongdoers. also, hand. Ry. See Dallas Terminal & approaches These cases illustrate three v. Harmon, Tex.Civ.App., Co. 200 S.W.2d right in- used to establish a common-law 854, error refused. demnity. concept of One involves the qualities” negligence; “different another stated, For the reasons ren- judgment is involves a breach of tort- between dered as forepart indicated in the of this feasors; gives indemnity the third opinion. vicariously only tortfeasor who is liable judgment Ap- of the Court of Civil operation pres- We believe that the law. peals is judgment reversed. The susceptible any ent case is not of these trial modified, court is modified and is approaches and that nor neither Gehring affirmed. indemnity. There- Hubbard is entitled to fore, provisions of Art. 2212 become WALKER, J., concurs in
relevant. the result. Company Pope, In Austin Road CALVERT,
Tex. Austin was J.,C. and GRIFFIN, J., dis- project pave in sent. subcontractor, city Pope street. was a en gaged to haul materials his truck to GRIFFIN, (dissenting). Justice large mixing concrete machine maintained This is another case in which Pope’s majority area. back While truck was changes of the Court sets aside and a rule pavement ing along strip narrow to law that has well mixer, established in this plain wards the ran many years. subcontractor, jurisdiction tiff, employee of another causing injury. him serious bodily agree I with the Court of Civil Pope counts, found on several releasing Gehring from liability to keep proper including failure to lookout agree and to Hubbard. Strakos I also to sound failure Austin’s horn. liable to Hubbard is Strakos for his failing consisted of to maintain suffered. vicinity a watchman the work. appeal, judgment this Court affirmed a On The case of Mansfield Construction Co. Pope, between Austin and of contribution Gorsline, (Comm. of Appeals) stating findings that there were no facts or 1067, rehearing overruled S.W. 292 S.W. degrees varying establish 187, recognized and established the rule part of the tortfeasors. that, after the of a con Texas said: owner, right one tractor’s owner, possession might pre- fully
“Either one or con both contract, carried out his who has wrong. Neither Each vented did. tractor
799 parties injuries sus (Citing not to third for cease.” numerous liable authorities. work, or completed by virtue of 109 788(3)). tained S.W.2d recognizes majority defects therein. As in Appeals said the Court of Civil that this is correct. the instant case: “It generally held that one is Trout, (Tex.Civ.App.1928), In Werner v. required to foresee action negligent nonliability refused, 525, 2 writ S.W.2d or, put party third it another of the contractor for suffered way, that the chain of is effec causation done, parties third in the work for defects tively broken negligent when the action quotes again recognized. was The Court legal entity another intervenes Roches from the Indiana of Travis v. case thereby producing becomes an efficient Co., 79, as1, 122 N.E. Bridge ter 188 Ind. authorities). injury.” (Citing cause follows: p. . c. top bot. 1st 2nd col. col. l a con- affecting the “As 769 345 S.W.2d 769. tractor, Dietert, In Glade v. Tex. operates party to the other the contract 642 (1956) attempt S.W.2d made to an was independent as the intervention damages recover from an contrac- chain agency human which breaks tor for plaintiff’s premises. destruction of preclude a third of causation so as to contractor, Glade, plain- entered party asserting relying premises tiff’s under circumstances which to use part on the of the contractor trespasser. made him a safety care in the construction for his reversing rendering the two lower 527, top of (2 p. of the work.” S.W.2d judgments courts’ in plaintiff favor of col.). 1st against the trespassing Court held: (Tex.Civ.App.1937), v. Beck Jones refused, S.W.2d writ was where a case generally “The decisions hold that building being workman on a erected was contract a municipality for injured by alleged prior negligence of a the construction public works the contractor in excavating certain holes contractor parties only is liable to third party erecting building. use in A new performance engaged erecting concrete forms the work and not the result usе in concrete making these holes for walls. performed according to the con his suit filed Beck and Jones Daly Co., tract. v. Earl W. Baker & alleging addition to facts Okl., 1114; P.2d Tidewater Con surrounding making of the excavations Corp. Manly, struction 194 Va. excavating alleged that Beck’s work also 500; Municipal Marin 75 S.E.2d Water had been turned over to and had the holes Paving Co., District v. Peninsula accepted by general been Cal.App.2d 404; Yearsley 94 P.2d plaintiff injury. prior general A Jones’ Co., Ross v. W. A. Const. 309 U.S. plaintiff’s peti- sustained demurrer 554; 60 S.Ct. 84 L.Ed. Panhandle affirmed The Court Civil tion. Shireman, Construction Co. v. Tex. said: 461; Civ.App., Swilling v. Tex.Civ.App., Knight, 205 S.W.2d “Furthermore, having the excavation Waldo, Tex.Civ.App., Blair v. 245 S.W. accepted and the construction of been 986.” having forms com- concrete subcontractor, So, in the instant majority another menced holds work, liable for liability of Beck for the man- the results of his work, though completed he had in which he had done his even ner defects, hidden accordance with his contract. the absence of would Texas; see; Utah; Virginia; Washing- Neece Co. See also Nedler v. Lumber ton; juris- total writ of 32 (Tex.Civ.App.1933), no Wisconsin—a 63 S.W.2d recog- Blickman, (Tex. dictions in which rule is history; v. Chilton S. Inc. no Civ.App.1938), 646(1-3), nized. *13 535; p. history; writ 30 Tex.Jur.2d a In 58 is (1958) A.L.R.2d there 534-5, 55; of p. Restatement Sec. Am.Jur. of not to discussion the “modern trend” Torts, Law, p. the Vol. C.J.S. follow the of doctrine. 95b, p. Negligence § says supports reasoning that the better subject discussing In of general the liability the rule of as set of the contractor perform- liability contractor’s for forth in the McPherson case. following contract, the ance find of his we However, sustaining as this statement (1950): Sec.
set out in 13 A.L.R.2d Delaware; cited Dis- only cases are from lia- relieving “In contractor of the Columbia; Louisiana; Hamp- trict of New re- persons injured as a bility to third shire; Ohio; York; Pennsyl- New negligence in the construc- of his sult vania; only jurisdictions. for total of very heavily tion, courts relied have recognizes This annotation rule also reasoning line of that where nonliability in majority still rule is knowledge has the defec- owner United States. In addition to the structure tive construction of the set out in anno- states 13 A.L.R.2d accepts such knowl- the work and with in 58 addi- tation 873 adds two A.L.R.2d in persons to come edge, permits third rule, supporting general tional states is therewith, owner himself contact viz., Florida. Arizona and thereby guilty rеndered part be- such discussing application rule In third cause comes processors which holds manufacturers or person’s injury, original negli- and the parties injured of chattels as liable to third gence becomes contractor' article, in defects the manufactured relieving cause him remote thereof p. 106, says, in annotation A.L.R.2d liability.” part: among sets out that same annotation similarity there is “While sufficient given nonliability reasons respect liability per- to such third work, are acceptance of contractor after sons, between the situation of a manu- following: would be no terminal There a building facturer of articles or liability you contractor unless date contractor, to warrant the construction acceptance; no of care is set date of legal princi- latter of application to the party; contractor to third owed liability of the ples governing the independent intervention of former, also material factors there are agency. applicable considerations to one or other, applicable to are not portion which which of thе annotation particular nonliability instance re- rule sets out application of the of non- party quire the rule to a third the contractor liability to a builder or construction pp. seq., cited 201 et cases are found on Connecticut; California; Arkansas; although similar cir- Illinois; liability might a rule of Columbia; Georgia; cumstances District Kansas; Iowa; applied Indiana; Kentucky, Loui- manufacturer Massachusetts; Thus, a processor. manufacturer or Maryland; Michi- siana; or Missouri; Minnesota; manufacturing ; Mississippi; processor articles gan Mexico; Nebraska; Jersey; processing the same does not ordi- New New Carolina; Ohio; act as with York; narily a contractor North Okla- New dealer, and the articles Pennsylvania; intermediate are homa; Oregon; Tennes- persons. prior con- speci- usable all To make according to usually prepared project over the having tractors no control prescribed by the intermediate fications accepted liable after to make dealer, construc- their work is building whereas point. liability continuing all no cut off frequently undertakes tion contractor protected This contracted would have to thing construct the price bid each according with the contractee thereby price cases out specifications. raising In such the total contract latter’s knows, pre- proportion of all present or he is its contractee value. know, sumed to that the structure We find that the between Harris likely tracted for is to result County moving covers *14 damage persons, or and to third resetting aof foot four-strand barbed ordinarily ex- not post wire and cedar along fence the Mat- pected safety and question thews farm and to “cut off the x front 10 60 specifica- soundness his contractee’s feet of the Matthews corral it and add onto is, plans tions or There for the work. * * * the back closing the in front therefore, found the relation of the along the new right-of-way.” a This was contractor and the contractee elements part of an moving overall contract for the lacking in manufac- the relation of a and 41,688 resetting of some feet four- turer and intermediate dealer strand barbed posts wire fence and cedar application would warrant the the fence. There is not one word which doctrine of cause in such required Gehring any post to refill holes. way as to more connect the County The duty was under to secure closely to the contrac- negligence of the right-of-way new and to and remove persons tee in exposing third reset fencing and all remove structures danger faulty sep- specifications and along right-of-way. the new When this arate it from original the contractor’s done, County through with its negligence in constructing danger- obligations. Gehring through was likewise ous structure.” with obligations. his It was the State’s responsibility to take right-of-way, over addition, I would manu- add that the paved and to finish the farm to market facturer processor or chattel of the food or highway. The let State the contract to Aus- product knows that going his is Bridge tin Company part for its of the ultimate consumer change without from the construction as to paved high- so secure the condition in which plant; it leaves there his way. Bridge Austin let the contract is right no contract inter- duty on the preparing the right-of-way surfacing handling product medians his article or and removing the obstructions to Hubbard. make correction or deviation in or It was Hubbard’s to blade the shoulders its change condition—in fact such and right-of-way the rest of the not actual- ordinarily is impossible; he knows his ly occupied roadway place and to product or article will reach the ultimate right-of-way in condition for finished consumer comparatively within a short roadway. Bridge Austin retained for itself time; product part larger is not a aof paving of the actual roadbed. accomplish unified, overall effort to in- tegrated completed product object. jury Gehring completed found that contributes, hand, A on the job 19th, other part 18th or June most, very steps accepted toward the finished few his work was Harris product; County other contractors work on must that date. also was shown product; subsequent are finished contractors his contract in full charged taking compliance jury the contract its with terms. found they charge the condition which receive it that the State Hubbard had 2nd, molding product it right-of-way into finished safe and on July control injured. when fur- Strakos was This holding in existing is accord with the County ther found that Hubbard and Harris law of Texas and thirty some other states. post knеw of the time I the unfilled holes at would not change this I rule of law. County accepted contract as think the permanence law must have if our fulfilled, guilty economy and that Hubbard was is progress. to be able to Before post filling in not holes a rule of law should changed, old prior July rule reasonably 2nd. must be unworkable and proposed new rule should make for There no reason shown in the record result, clearer and more workable lead not man, that Gehring, as a reasonable should to confusion uncertainty as I believe rely Bridge Hubbard Austin is the result of majority opinion herein. doing what their them 5,500 There holes un- post do. were some
filled Had the along the old fence line. CALVERT, J., joins C. in the dissent. these, County it wanted fill Gehring to easily put requirement could ON MOTION FOR REHEARING specifications.
its *15 complied everything with NORVELL, Justice. every- required County him to do and with Our action in holding is Gehring liable County paid him. Un- thing for which the in accord with the American Insti Law contract, anyone der his no to he owed tute’s Restatement of the Law of Torts1 fill and Aus- post to in the holes. Hubbard and what by is described the editors of the fill in the Bridge getting paid tin were to Reports American Law as the “Modern pоst they to do holes and owed liability view of foreseeable harm very thing. by caused negligence.” leaving the Gehring’s I would hold that cause, post open holes not a By way was analogy, may we consider the injury. but a remote cause Strakos’ case of a contractor who negligently affixed possessor nothing antiquated 1. One who on behalf of the suits based on le- any gal concepts hazy land or creates erects a structure and refuted ideas of subject public policy. hardly any other thereon is to lia- condition There can should, bility liability within without to others doubt that issue from by bodily clanger harm to them land for caused to face of dangerous reasonably character of the structure others that foreseen. principle applied ac- or condition after his work has been This has been success- by possessor cepted fully personal property under the same in the case of forty years. equally ap- in to §§ rules as those stated for the last It is determining liability plicable property one and 404 as in the case of real independent who manufacturer con- in avoid this field will the confusion and uncertainty ap- chattel for use of tractor makes a which is inherent in the plication nonliability Restatement of the Law § others. of the rule of with poorly of Torts. its numerous flexible and defined exceptions. adoption of the “modern by building It 2. A.L.R.2d 891. is also stated view” does not burden the con- liability. editors that: the A.L.R. with an absolute tractor Under gains liability rule, plaintiff the modern view more and “As to fin'd is among jurisdic- support leading prove negligence more still part on the predict safe to it seems of the tions contractor to show that rejection privity dangerous of of con- structure has been in fact building rule as to is tract merely contractors erected and that the builder knew that occupancy. matter of time. it to be used for human develop- merely away “It is submitted that such a does with an outmoded fully privilege legal is accord with modern le- ment gal based on an anachronistic justice theory. replaces concept Both reason and re- it with the basic against negligence.” (Italics supplied) a further retention volt old rule with its of the rule potentially unfair re- A.L.R.2d upon contract, aged a home for but arisеs out cir- to bathtubs in of the handrails an cumstance persons. dangerous is unnoticed left This defect building inspector highway. hole in the that the with the result accepted by there is the owner. Is gen- This case the ambit of falls within liability saying basis reasonable eral liability. purposes tort For injured to one analysis only time disregarding and for the defectively fastened hand- use of the employed the methods submitting ele- automatically rail is off the owner’s cut liability ments of under our acceptance negli- premises ? Should special system, issue call attention to the we inspection gent negligent construc- excuse recent article Professor written Leon tion, or should of a structure University Green of the Law School dangerous of a hidden condition because Texas called Relation Is- “The Causal liability? At defect cut off a contractor’s Law,” in Negligence sue 60 Mich.Law least, under such a situation factual points Review 543. Professor Green out exception similar others an thereto that the analysis orthodox of a “acceptance is for. of the work” rule called following case embodies the elements: inherently exception relating Such recognized defects numer- “(1) Did conduct defendant’s jurisdictions. ous A.L.R.2d 882. We tribute injury (the caus- victim’s not, however, upon exceptions need rely (2) al relation issue) Was ? the vic- gen- in this case is fixed protected tim under the law liability. eral rule of tort respect defendant’s conduct (the duty inflicted on him is- applicable prin- We see no difference sue) (3) ? Did defendant violate his *16 ciple hypothetical given between the case duty respect under the law with actually pointed and the one before us. As injury (the negligence issue) victim’s ? opinion, in footnote 4 out (4) What is the money evaluation in jury found from evidence sufficient of the losses suffered the victim as law that the hole “in- by Gehring left was injury result of (the damage is- herently dangerous.” determining sue) ?” “inherently whether a condition danger- is ous” under those before circumstances like The causal relation issue mentioned re- question foreseeability of us lates to cause in fact and not to the techni- clearly resulting “proximate of harm is involved. cal cause.” The Court of Civil Appeals opinion points in its out that on argued contract, It is that under this 2, 1956, July approached Strakos gate up was not fill the holes the fence of the I. C. Matthews farm. On posts. his removal caused fence stepping car, out leg of his went into a agreement is silent as to this matter post hole left Gehring when he moved provisions the contractual thereof are injury fence. Serious disability directory couched in wording of that not disposes resulted. This of the causal rela- certainty require which would a-conclusion tion issue. The cause and effect relation- leaving act of the hole was at the ship leaving between the of the hole and origin of its and thereafter the time act of clearly established. County and not that of Harris the con- tractor, is sometimes issue is to be as case where a resolved merely plans follows specifi- matter of law. 60 Mich.Law builder Review 562. problem. Anyone which have been handed to there is no cations him Here work contracting party using highway other with or ing is instruc- under a literally creating that the same be to refrain from tions followed. conditions Liability Gehring dangerous persons to Strakos is not are to other based same, using efficiently dispos- to warn of tentiоns raised have opinions be created. ed either by conditions should the same this Court’s opinion Appeals. Court Civil issue, per- it As to would two into haps be clearer to divide same The motions for filed rehearing herein e., reasonably pru- parts, i. the test are overruled. foreseeability man and the dent test of This, Texas under the of harm. because practice, of fore-
special element issue incorporated
seeability usually Clearly
definition cause. opinion, a could in the original
stated reasonably prudent person would
find have road as left the hole foreseeability is question as to did. GUTHRIE, Appellant, D. E. posi- Considering the similarly answered. vegetation sur- tion the hole FLOCK, Appellee. Delbert D. same,3 taken rounding it would have No. 7176. anticipated prophetic ken to little actually injury similar to that which some Appeals Court of Civil Texas. occurred. Amarillo. suffered There is no doubt Strakos Sept. 17, 1962. bodily injuries and the serious passed upon conten- Civil has ex- damages the amount
tion
cessive. appears accordingly that the facts same within the bring case accordingly we
rule tort the find- holding that under our
adhere to *17 was liable to jury Gehring
ings
Strakos. fur- this discussion need extend
We rehearing What has been said
ther. repetitious of matter discussed
somewhat was, opinion. writing Further
however, interest advisable deemed clarity vigorous and able motions and the rehearing filed herein. perhaps point also out should
We Appeals Civil numerous mat-
the Court -in by Gehring were substance -raised
ters raised Like- those Hubbard. same as urged the Court of Civil points some
wise argu- than much broader were
Appeals However, all thereunder. made
ments describing very (345 as to difficult discover.” of Civil 3. The 767) time of Strakos’ hole at the grass that, “It obscured was so stated