Gehring v. Strakos

• Decision Date: 02 March 1961
• Docket Number: No. 13632,13632
• Citation: 345 S.W.2d 764
• Parties: John H. GEHRING et al., Appellants, v. John STRAKOS, Appellee.
• Court: Texas Court of Appeals

Page 764

345 S.W.2d 764

John H. GEHRING et al., Appellants, v. John STRAKOS, Appellee.

No. 13632.

Court of Civil Appeals of Texas, Houston.

March 2, 1961.

Motions for Rehearing Denied March 30, 1961.

Second Motion for Rehearing Denied April 20, 1961.

Painter & Painter, J. H. Painter, Jr., Kucera, Lay & Lightfoot, Bennett Lay, Houston, for appellant, John H. Gehring.

James G. Sargent, Houston, Graves, Dougherty, Gee & Hearon, Austin, (on motion for rehearing), for appellant, N. M. Hubbard, Inc.

Robert L. Steely, W. James Kronzer, Houston, Hill, Brown, Kronzer & Abraham, Scardino & Regnier, Houston, of counsel, for appellee.

COLEMAN, Justice.

This is a suit for damages for personal injuries. Judgment in the trial court was for plaintiff, and this appeal follows. Appellee, John Strakos, was plaintiff in the trial court. Appellants, John H. Gehring and N. M. Hubbard, Inc., were defendants along with the Austin Road Company, who is not a party to this appeal. For convenience, the parties will be referred to as Strakos, Hubbard and Gehring. The judgment awarded Strakos $437 for medical expenses and $50,000 in damages for pain and suffering, mental anguish and loss of earnings, past and future. Hubbard was awarded indemnity against Gehring.

A brief general statement of the facts is required. In order to have a section of the road, commonly known as the Crosby-Huffman Road, incorporated into the State Farm-to-Market Road System, in accordance with normal procedure, Harris County agreed to secure the necessary additional right of way and to have the fences moved back to the new right of way lines. Right of way deeds were secured in the name of the State of Texas and Harris County entered into a contract with Gehring to remove and relocate the fencing along both sides of the road. On or about the 15th day of May, 1956, Gehring and his employees began the removal of the fences and the relocation of those fences in accordance with the contract. In doing this work Gehring did not fill any of the holes left by the removal of the posts along the original fence line. There was no mention of post holes in his contract with Harris County. On May 2, 1956 the State of Texas entered into a contract with the Austin Road Company to resurface and widen the road, and on May 4, 1956 the Austin Road Company contracted with N. M. Hubbard, Inc., to do the work necessary to get the right of way in condition for surfacing. Except for the installation of certain concrete culvert structures, Hubbard's obligations all preceded the later work to be done by the Austin Road Company. Both Austin Road Company and Hubbard had commenced actual work under their contract prior to July 2, 1956, and barricades had been erected at each end of that part of the road to be improved. The State required that the road be kept open for public use. On July 2, 1956, Strakos approached a gate in the fence at the I. C. Matthews farm, which had been moved by Gehring under the terms of his contract with Harris County. On stepping out of his car, his left leg went into a post hole about three feet deep, causing injuries to his right leg resulting in permanent disability. The hole into which he stepped was one left by Gehring when he moved the fence. It was so obscured by grass as to be very difficult to discover. The County made its final inspection on June 18, 1956, and the work was accepted by the County Engineer on June 19, 1956, but formal acceptance by the Commissioners' Court and final payment occurred on July 12, 1956. Both County and State inspectors knew that the holes left by removal of fence posts had not been filled.

Gehring contends that he should have been relieved from liability for the injuries to Strakos for the reasons that: (1) he had completed his work for Harris County in accordance with the plans and specifications; (2) his work had been accepted by Harris County with knowledge on the part of the county and the State of Texas that the post holes had not been filled, and that by reason of such acceptance and the consequent loss of control of the premises on his part his conduct in failing to fill the hole or to properly warn the public of the concealed hole was not negligence in that he was under no duty to Strakos or, if his conduct did constitute negligence, it was not the proximate cause of the injuries he received. Aappellee replies that Gehring's performance under the contract had not been formally accepted by the County, and if the doctrine of 'practical' acceptance applies in Texas, it does not apply in this case because of contract provisions; that (admitting arguendo) acceptance of the work by the County before the injury to Strakos, nevertheless Gehring is not relieved of liability by the general rule of law that the acceptance of a contractor's work by the contractee relieves the contractor of future liability to third persons because the rule does not apply in the case of concealed or hidden defects, nuisances or inherently dangerous conditions and that a common law obligation to use due care for the safety of the public arose from his contract with Harris County.

The general rule of nonliability of contractors after acceptance of the work by the contractee appears to be followed in Texas. In the case of T. J. Mansfield Const. Co. v. Gorsline, Tex.Com.App., 1926, 288 S.W. 1067, 1068, Rehearing denied, Tex.Com.App., 292 S.W. 187, the Mansfield Construction Company had a contract with Wichita County to construct ten box culverts in a county road. The County was to repair the road after the culverts were in place. Mansfield completed its work and it was inspected and accepted by Wichita County. The County in its work had covered nine of the culverts when Mrs. Gorsline one night drove down the road and into the ditch across the road and into the culvert. In the original opinion the Court held:

'Plaintiff in error's first assignment of error question the correctness of the judgment of the Court of Civil Appeals in holding that the trial court did not err in overruling plaintiff in error's first proposition of law, which was based upon the second assignment of error, this proposition being as follows:

'Plaintiff in error having completed all of the work that it had contracted to do for the county in the construction of said culverts and the county having accepted the work and having prepared and road for the traveling public, save and except at the point where the accident occurred, and the county having full control of said highway long before the accident occurred, plaintiff in error was under no obligation or duty to maintain signals of warning signs on said highway, and therefore not liable for such damages as defendants in error received.'

'This assignment of error, in our opinion, should be sustained and as the uncontradicted testimony establishes the facts in the proposition under this assignment, we are of the opinion that the proposition quoted is a correct statement of the law of the case.'

Further in the opinion the Court said:

'It appears from the contract between the plaintiffs in error and Wichita county that the plaintiffs in error were charged with the duty to do certain things during the performance of the work which under the contract they were to do, and, it having been shown that at the time the accident occurred resulting in the injuries for which damages are claimed the plaintiffs in error were not engaged in the performance of this work, but that it had been completed and the work accepted, there was no duty resting upon the plaintiffs in error the failure to perform which could be made the basis of damages for injuries sustained by Mrs. Gorsline. * * *

'Evidently the negligence which is the failure to exercise that degree of care which persons of ordinary prudence would thus use under the same or similar circumstances was attributable to the failure of the duly authorized agent of Wichita county to use due diligence in filling up the culvert where the accident occurred on Saturday night or the following day before the accident occurred. Had this duty rested upon the plaintiffs in error as a part of their contract with Wichita county, under the facts found by the jury the plaintiffs in erro would have been liable for damages. But, it has been seen that the contract did not require the plaintiffs in error to perform this duty, there being an absence of any affirmative testimony tending to show the existence of such a duty, and, upon the contrary, the testimony affirmatively shows that no such duty rested upon them. So, in our opinion, the defendants in error have not shown any cause of action against the plaintiffs in error.'

Contractual duty is measured by the terms of the contract and ends with completion of work and acceptance unless by the terms of the contract duty is extended. Annotations, 123 A.L.R., pp. 1197/1205; Annotations, 13 A.L.R.2d pp. 195/252; Annotations, 58 A.L.R.2d, pp 869/898; T. J. Mansfield Const. Co. v. Gorsline, supra; S. Blickman, Inc. v. Chilton, Tex.Civ.App., 114 S.W.2d 646; Nedler v. Neece Lumber Co., Tex.Civ.App., 63 S.W.2d 403. There can be no negligence unless a duty is present. However, where no duty is imposed by contract, it may be imposed by operation of law. 65 C.J.S. Negligence Sec. 4, p. 344; T. J. Mansfiedl Const. Co. v. Gorsline, supra; Independent-Eastern Torpedo Co. v. Carter, Tex.Civ.App., 131 S.W.2d 125; Thompson v. Graham, Tex.Civ.App.1960, 333 S.W.2d 663. Violation of such duty is not actionable unless such violation is the proximate cause of damage. Ball v. Gulf States Utilities Co., Tex.Civ.App., 123 S.W.2d 937. It is generally held that one is not required to foresee the negligent action of a third party or, to put it another way, that the chain of causation is effectively broken when the negligent action of another legal entity intervenes and thereby becomes an efficient producing cause of the injury. Hartford v. Coolidge-Locher Company,...