Kelley v. General Telephone Company of the Southwest

• Decision Date: 19 November 1973
• Docket Number: No. 72-2318.,72-2318.
• Parties: Max Franklin KELLEY, Plaintiff-Appellee, v. GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Defendant, Third-Party Plaintiff-Appellant-Appellee, v. Vernon L. CLARK, d/b/a Clark Enterprises, Third-Party Defendant-Appellant, Pacific Indemnity Company, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

485 F.2d 1315 (1973)

Max Franklin KELLEY, Plaintiff-Appellee, v. GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Defendant, Third-Party Plaintiff-Appellant-Appellee, v. Vernon L. CLARK, d/b/a Clark Enterprises, Third-Party Defendant-Appellant, Pacific Indemnity Company, Intervenor-Appellee.

No. 72-2318.

United States Court of Appeals, Fifth Circuit.

October 17, 1973.

Rehearing and Rehearing Denied November 19, 1973.

COPYRIGHT MATERIAL OMITTED

Thomas W. Hathaway, Tyler, Tex., for General Telephone.

Otto A. Ritter, Rex A. Nichols, Longview, Tex., for Clark and Pacific Indemnity Co.

W. R. Barnes, Odessa, Tex., for Max Franklin Kelley.

Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 19, 1973.

INGRAHAM, Circuit Judge :

The issues in this Texas diversity case concern the liability of an occupier to an invitee, in this case an employee of an independent contractor hired by the occupier to work on the occupier's land. We affirm the district court's judgment, entered on the jury verdict, for the employee. In the third party action based on an indemnity agreement between the occupier and the independent contractor, we reverse the district court's judgment in favor of the occupier.

I.

The facts are basically undisputed. In July 1967 Max Franklin Kelley, the plaintiff-appellee, was working as a lineman for Clark Enterprises, an independent contractor. On July 21, 1967, General Telephone Company contracted with Clark for the dismantling and removal of a telephone line near Jacksonville, Cherokee County, Texas. Although the line was old and there is testimony that it might have been necessary to dismantle it in the near future, this particular work was necessitated by the relocation of a highway.

The accident giving rise to this suit occurred around noon on July 26. Max Kelley had ascended a telephone pole and was in the process of removing the crossarm when the pole fell, pinning him beneath it. He suffered serious injuries to his right leg and ankle, as well as his back. The reason the pole fell with Kelley is that it was rotted through four to six inches below ground level. For this reason it would not support Kelley's weight once the wires connecting the pole to other poles in the line had been removed.

Kelley filed this diversity action against General Telephone asserting various theories on which General was liable in tort for his injuries. General filed a third party action against Kelley's employer, Clark Enterprises, seeking recovery on the basis of an indemnity clause in the construction contract between General and Clark. This action was severed from the tort suit and tried to the court. Kelley's action against General went to the jury on the court's general charge, and the jury returned a verdict in favor of plaintiff. In answer to special interrogatories submitted by the court, the jury said that its verdict was founded on defendant's negligence in failing to inspect the defective pole prior to the work and also in failing to warn plaintiff of the defective condition of the pole. The jury necessarily rejected defendant's defensive theories which were submitted in the court's charge. These were that defendant was not negligent, that plaintiff was contributorily negligent, that the sole proximate cause of the accident was the conduct of the independent contractor, Clark, and that the accident was unavoidable. The district court entered judgment on the jury's verdict and General appealed. Clark has appealed from the trial court's entry of summary judgment in favor of General in the third party action.

II.

The duties owed in Texas by an occupier of premises to an invitee are well established. In Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454 (Tex. 1972), the Texas Supreme Court said:

"* * * The duty is that which is summarized in Restatement (Second) of Torts § 343 (1965) :

§ 343. Dangerous Conditions Known to or Discoverable by Possessor

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The occupier is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects and to make safe any defects or to give an adequate warning. Restatement (Second) of Torts § 343, Comment b (1965)."

See City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.1969) ; Halepeska v. Callahan Interests, Inc., 371 S.W.2d 368 (Tex.1963). As the owner of the easement on which the telephone line was located, General is an occupier under Texas law. Kelley is an invitee because he was employed by an independent contractor hired by the occupier to do work on the premises. See Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950).

Because the evidence is undisputed that General did not inspect the telephone line or warn Kelley of any dangerous condition in the line and because the jury found that this conduct was negligent, General advances three theories to support its contention that it owed "no duty" to plaintiff under Texas law. The trial court declined to give jury instructions embodying these theories, and General asserts error in this regard.

General argues first that the defective condition of the pole was "open and obvious," and thus there was no duty to warn Kelley of its condition. See Myers v. Day and Zimmerman, 427 F.2d 248 (5th Cir., 1970); Halepeska v. Callahan Interests, Inc., supra.¹ "In the `no duty' situation . . . knowledge either actual or charged in law, is crucial." Myers v. Day and Zimmerman, supra at 252. There is no basis in this record for the conclusion that Kelley had actual knowledge of the rotted condition of this telephone pole.² The defect was hidden four to six inches below the surface of the ground and was not known to Kelley, or anyone else for that matter, until the pole fell. Nor do the facts here present a situation in which Kelley should have been charged in law with knowledge of the condition of the pole. See, e. g., Wesson v. Gillespie, 382 S.W. 2d 921 (Tex.1964) ; Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952) ; Houston Nat'l Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948) ; Corley v. Laco Rentals, Inc., 487 S.W.2d 446 (Tex.Civ. App., Waco 1972, no writ history). See generally Greenhill, Assumption of Risk, 28 Tex.B.J. 21 (1965).³

General also argues that Kelley's injury resulted not from a dangerous condition on the premises where he was working, but from the nature of the work he was doing, and relies on several Texas cases to support this proposition. Humphreys v. Texas Power & Light Co., 427 S.W.2d 324 (Tex.Civ.App., Dallas 1968, writ ref'd n.r.e.) ; Tyler v. McDaniel, 386 S.W.2d 552 (Tex.Civ.App., Dallas 1965, writ ref'd n.r.e.) ; Perez v. Hernandez, 317 S.W.2d 81 (Tex.Civ. App., San Antonio 1958, writ ref'd n.r. e.) ; Nance Exploration Co. v. Texas Employers Ins. Ass'n, 305 S.W.2d 621 (Tex.Civ.App., El Paso 1957, writ ref'd n.r.e.) ; Moore v. Texas Co., 299 S.W.2d 401 (Tex.Civ.App., El Paso 1957, writ ref'd n.r.e.). A reading of these cases reveals that they are clearly inapposite to the facts of our case. Kelley was injured because the telephone pole was rotted below the surface of the ground. This is obviously a condition of the premises.

As the final element of General's no duty based arguments, we are asked to apply an exception to the rules relating to an occupier's duty to employees of an independent contractor which has not previously been adopted in Texas.

"As an exception to the general rule requiring the owner or occupier of premises (contractee) to furnish a safe place of work to an independent contractor and the latter\'s employees, the owner or occupier is under no duty to protect them against risk arising from or intimately connected with defects of the premises, or of the machinery or appliances located thereon, which the contractor has undertaken to repair."

City of Beaumont v. Graham, supra, at 834, of 441 S.W.2d quoting 31 A.L.R.2d 1375, 1381 (1953). General's problem is that its contract with Clark was not a repair contract, but was rather a contract to dismantle a telephone line. The latter is not so closely analogous to a contract of repair to justify applying the exception in this case. Especially is this true in light of the Texas Supreme Court's failure to apply the exception in the Graham case, and the court's statement to the effect that, even assuming it would apply the exception, it would do so with respect to "risks only intimately connected with defects which the contractor has undertaken to repair. . . ." 441 S.W.2d at 835. We decline to apply the exception here.

General also seeks a reversal because the trial court refused to instruct the jury on its affirmative defense of volenti non fit injuria, voluntary assumption of the risk.⁴ Although this doctrine of Texas law has been criticized,⁵ it is nonetheless a viable defensive theory to tort liability. The elements of this defense are as follows :

"(1) The plaintiff has knowledge of facts constituting a dangerous condition or activity ; (2) he knows the condition or activity is dangerous ; (3) he appreciates the nature or extent of the danger ; and (4) he voluntarily exposes himself to this danger."

J. & W. Corp. v. Ball, 414 S.W.2d 143, 146 (Tex.1967). Without detailing the evidence in this record, suffice to say that we have read the record⁶ and agree with the district court that there is no evidence to support a volenti instruction. Max Kelley did not have actual knowledge of the defective pole. In his seven years of experience as a lineman he had never...