General Tel. Co. of Southwest v. Bi-Co Pavers, Inc.

• Decision Date: 05 September 1974
• Docket Number: No. 18347,BI-CO,18347
• Citation: 514 S.W.2d 168,73 A.L.R.3d 978
• Parties: GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Appellant, v.PAVERS, INC., Appellee.
• Court: Texas Court of Appeals

Page 168

514 S.W.2d 168

73 A.L.R.3d 978

GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Appellant, v. BI-CO PAVERS, INC., Appellee.

No. 18347.

Court of civil Appeals of Texas,

Dallas.

Sept. 5, 1974.

Rehearing Denied Oct. 3, 1974.

R. L. Middleton, Jr., Dallas, for appellant.

James K. Peden, III, Strasburger, Price, Kelton, martin & Unis, Dallas, for appellee.

GUITTARD, Justice.

In this suit by a telephone company against a paving contractor for severing a telephone cable buried in conduit under a public street, the jury found no negligence on the part of defendant contractor and also found that plaintiff's negligence contributed to the occurrence. On these findings the trial court rendered judgment for defendant, and plaintiff appeals on the ground that other findings of the jury establish a trespass, to which contributory negligence is no defense. We affirm on the ground that no trespass or other ground of liability has been established.

The findings which plaintiff asserts as establishing a trespass are that plaintiff did not give defendant permission to enter its conduit and that defendant cut the conduit in the right-of-way granted to plaintiff by franchise from the city. There was no evidence that defendant intended to cut the cable or intrude into the space where it was maintained, and no issue was submitted on this question.

Plaintiff contends that these findings establish defendant's liability for trespass under Mountain States Tel. & Co. v. Vowell Construction Co., 161 Tex. 432, 341 S.W.2d 148 (1960). In that case the Supreme Court of Texas held that a paving contractor's act of severing a telephone cable lawfully in place under a street was a violation of a property right and, consequently, gave rise to a cause of action without proof of negligence or intent to interfere with the cable.

We conclude that the present record does not establish the kind of tort recognized in Vowell as a 'trespass.' If the 'trespass' recognized in Vowell is interpreted as an intentional tort, we hold that no such tort is established because defendant did not intend to intrude into the space where the cable was maintained. If that 'trespass' is interpreted more broadly to embrace the concept of strict liability, as plaintiff contended in oral argument, we still hold that no tort is established. Strict liability does not apply because plaintiff, unlike the telephone company in Vowell, had notice of the danger to its cable and a better opportunity than defendant to prevent the occurrence.

Intentional Tort

In Vowell the contractor's employee intended to make a cut in the street down to a level below that at which he struck and severed the telephone cable. No similar intent appears here. Defendant's contract with the city required it to stabilize the soil by mixing it with lime down to a depth of six inches below the surface grade, and for that purpose defendant used a heavy machine known as a 'pulvamixer,' which crushed the conduit and severed the cable. Admittedly, the telephone conduit was more than six inches below the surface at the point of severance. Before the occurrence a city engineer had measured the depth of the conduit at a location within twenty feet of the point where the cable was later severed and had found it to be more than eleven inches below the surface. After the occurrence, the contractor's engineer found the conduit at the point of the severance to be more than four inches below the lime work. Thus the evidence, unlike that in Vowell, fails to show that defendant intended to intrude into the space where plaintiff was lawfully maintaining its cable.

Plaintiff insists that a trespass is established because operation of the 'pulvamixer' was an intentional act which resulted in violation of plaintiff's property right. Even though defendant intended to operate the machine, its operation as intended would not necessarily have violated plaintiff's right. A trespass is usually regarded as an intentional tort in the sense that it involves an intent to commit an act which violates a property right, or would be practically certain to have that effect, although the actor may not know that the act he intends to commit is such a violation. First City Nat'l Bank v. Japhet, 390 S.W.2d 70, 74 (Tex.Civ.App.--Houston 1965, writ dism'd); McDaniel Bros v. Wilson, 70 S.W.2d 618, 621 (Tex.Civ.App.--Beaumont 1934, writ ref'd); Cover v. Phillips Pipe Line Co., 454 S.W.2d 507 (Mo.1970); Mountain States Tel. & Tel. Co. v. Horn Tower Construction Co., 147 Colo. 166, 363 P.2d 175 (1961); 1 F. Harper & F. James, The Law of Torts § 2.5 (1956). If the act intended would necessarily violate a property right, whether or not the actor knows it to be a violation, he is nevertheless liable, and that liability may extend to unintended consequences. 1 F. Harper & F. James, Supra at 111; and See Schronk v. Gilliam, 380 S.W.2d 743, 746 (Tex.Civ.App.--Waco 1964, no writ); Carter v. Haynes, 269 S.W. 216 (Tex.Civ.App.--Austin 1925, writ dism'd). However, unless the intended act would violate a property right, the actor's liability for unintended consequences ordinarily depends upon proof of negligence. Parrot v. Wells Fargo & Co. (Nitro-Glycerine Case), 15 Wall. (82 U.S.) 524, 21 L.Ed. 206 (1873); First City Nat'l Bank v. Japhet, 390 S.W.2d 70, 74 (Tex.Civ.App.-- Houston 1965, writ dism'd); Mountain States Tel. & Tel. Co. v. Kelton, 79 Ariz. 126, 285 P.2d 168 (1955). Otherwise, the defense of contributory negligence could be avoided in any case of an intentional act with unintended consequences by treating the act as an intentional tort.

Since the present case contains no finding and no evidence that defendant's employee intended to operate the 'pulvamixer' at the depth where he severed the cable, it is not like the case of the innocent trespasser who intends to make excavations on certain land in the mistaken belief that he has a right to do so, and is liable without proof of negligence. See Whitehead v. Zeiller, 265 S.W.2d 689 (Tex.Civ.App.--Fourth Worth 1954, no writ); Shell Petroleum Corp. v. liberty Gravel & Sand Co., 128 S.W.2d 471 (Tex.Civ.App.--Beaumont 1939, no writ); Restatement (Second) of Torts § 164 (1965). It is more like the case of a motorist who intends to keep on the road and inadvertently runs over adjacent land. In such a case, liability depends on proof of negligence. First City Nat'l Bank v. Japhet, 390 S.W.2d 70 (Tex.Civ.App.--Houston 1965, writ dism'd); Smith v. Pate, 246 N.C. 63, 97 S.E.2d 457 (1957); Restatement (Second) of Torts § 166 (1965). Consequently we hold that no trespass, in the sense of an intentional tort is established.

Strict Liability

We recognize that the scope of the Vowell decision may not be limited to the intentional tort theory above discussed. Although in Vowell Justice Norvell uses the term 'trespass,' he indicates doubt concerning propriety of that term by observing: 'The particular appellation or classification to be given the particular act is not of controlling effect.' 341 S.W.2d at 150. Since in Vowell the contractor did not know the exact position of the cable, and did not intend to make contact with it, the 'trespass' in that case does not fall within the concept of 'trespass to personalty' as defined by such authorities as Restatement (Second) of Torts § 217, Comment b at 417 (1965); 1 F. Harper & F. James, The Law of Torts § 2.5 (1956); W. Prosser, Handbook of the Law of Torts 77 (1971); Comment, A Comparison of the Conduct Required in Trespass to Chattels and Negligence, 33 Rocky Mt.L.Rev. 323, 328 (1961). However, the tort recognized in Vowell may rest upon the broader concept that one who digs in a public street has a strict duty to avoid disturbing public utility lines buried in it and is liable for any damage to them caused by his digging, whether or not he actually intends to dig into the area where the lines are maintained. This concept is supported by policy considerations which seem to be the basis for Now York Steam Co. v. Foundation Co., 195 N.Y. 43, 87 N.E. 765 (1909), one of the authorities cited in the Vowell opinion. Consequently, we must consider the extent of such strict liability and determine whether it applies in this case.

The Vowell opinion itself limits the tort recognized in that case to a situation in which the public utility company has no notice of the danger to its lines. Justice Norvell points out that in that case no request had been made to the telephone company to check its lines and lower them if necessary before paving operations were undertaken, and he adds:

The owner of conduit lines lawfully in a street or alley can hardly be expected to know that their existing location is unsatisfactory in view of contemplated street surfacing or other improvements Unless notified to that effect. (341 S.W.2d at 151, emphasis added.)

This limitation of the tort recognized in Vowell is confirmed by the later opinion of the Supreme Court in Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.1963). There an earthmoving machine operated by a paving contractor was destroyed by fire when it struck a natural gas pipeline under a public road. In the contractor's suit for damages, the jury found negligence on the part of the pipeline owner and also found that the contractor was not negligent in operating the machine, even though the contractor could have found out the location of the line from the highway department and had not done so. Judgment for the contractor on these findings was affirmed by the intermediate court, and on writ of error the pipeline owner contended that it was not liable because the contractor was a trespasser under Vowell. In reversing and rendering judgment in favor of the owner, the Supreme Court did not reach the trespass issue, but observed that the question of constructive knowledge, or duty-to-know, in trespass to chattels is a field of law both difficult and unsettled. Instead of resolving that question, the court...