Metal Structures Corp. v. Plains Textiles, Inc.

• Decision Date: 02 August 1971
• Docket Number: No. 8156,8156
• Citation: 470 S.W.2d 93
• Parties: METAL STRUCTURES CORPORATION, Appellant, v. PLAINS TEXTILES, INC., Appellee.
• Court: Texas Court of Appeals

Page 93

470 S.W.2d 93

METAL STRUCTURES CORPORATION, Appellant, v. PLAINS TEXTILES, INC., Appellee.

No. 8156.

Court of Civil Appeals of Texas,

Amarillo.

Aug. 2, 1971.

Rehearing Denied Aug. 30, 1971.

Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellant.

Crenshaw, Dupree & Milam, J. Orville Smith, Lubbock, for appellee.

REYNOLDS, Justice.

This appeal is from a judgment entered on a jury verdict awarding damages resulting from a building construction failure. The judgment of the trial court, as hereinafter reformed, is affirmed.

Plains Textiles, Inc., appellee herein, organized for the purpose of constructing and operating a textile spinning mill in Lubbock County, employed Bill G. Eppes, an architect and engineer, to design the building, and entered into a construction contract with H. C. Lewis as the general contractor. Stout Steel Builders, Inc., a franchise dealer of Metal Structures Corporation, appellant herein, contracted with H. C. Lewis to furnish and install the steel used in the building. Appellant designed, manufactured and supplied the steel used by Stout Steel Builders, Inc. No contract was entered into, or existed, between appellant and appellee. The steel was furnished and installed by early January, 1966. When the building was in the final stage of completion on April 23, 1966, following a rain the preceding day and ponding of water on the roof, one of the steel frames partially failed and a part of the roof collapsed.

On April 22, 1968, appellee Plains Textiles, Inc., filed suit against Bill G. Eppes, Stout Steel Builders, Inc., and appellant Metal Structures Corporation for damages. H. C. Lewis was not made a party to the suit. The theories of recovery alleged and submitted against the defendants were negligence and strict tort liability for breach of implied warranty. Fraudulent concealment was not pleaded. Appellant specially excepted to appellee's petition on the ground, among others, that appellee's cause of action was barred by the two-year statute of limitations. The record does not reflect that this exception was presented to or ruled on by the trial judge. Appellant pleaded among its defensive matters the defense of volenti non fit injuria and the two-year statute of limitations. Various cross claims for contribution and indemnity were filed. Trial was to a jury. At the close of the evidence, the trial court overruled appellant's motion for an instructed verdict based on the two-year statute of limitations, volenti and other allegations. Then the trial court, upon motion to which there was no objection, dismissed Stout Steel Builders, Inc. and its cross claim from the suit with prejudice. The jury relieved Bill G. Eppes from liability. No complaint is made to the exoneration of Stout Steel Builders, Inc., and Bill G. Eppes, and the judgment as to them has become final.

In response to the submitted special issues, the jury found that appellant breached its implied warranty to appellee and that in three particulars appellant was guilty of negligence that proximately caused appellee's damages. The jury found the defense of volenti non fit injuria. The jury findings, material to this appeal and summarized corresponding to the numbered special issues, were that: (1) the failure of the roof was proximately caused by ponding of water on the roof; (2) the ponding of water was proximately caused by excessive deflection of the frames; (3) the excessive deflection was proximately caused by a defective condition of the frames; (4) the frames were defective at the time they were delivered to be used in the building; (5) appellant designed the frames; (9) appellant supplied steel frames that were excessively flexible and not sufficiently rigid to avert ponding on the roof, (10) which was negligence, and (11) a proximate cause of the roof failure and resulting damages; (12) appellant in designing the frames failed to design them to compensate for the probable deflection, (13) which was negligence, and (14) a proximate cause of the roof failure and resulting damages; (15) the ponding of water on the roof created a dangerous condition prior to the collapse, which (16) appellee knew, and (17) appreciated, and (18) appellee voluntarily exposed its building to the risk of such dangerous condition; (50) appellant failed to follow plans and specifications in not cambering the steel frames, which (50a) was negligence, and (50b) a proximate cause of the damages; (51a) appellant, after notice, if any, of alleged defects in the steel frames, represented to Bill Eppes that such structure was sound; and (51b) Bill Eppes relied on such assurances from appellant. Special issues 52 and 53, consisting of inquiries as to appellee's specific damages, have not been challenged.

Appellant's motion for judgment based on limitations and the defense of volenti; to disregard the jury's findings to special issues nos. 1 through 4, 9 through 14, 27, 34, 35, 50, 50(a) and 50(b); and for judgment notwithstanding the verdict, was overruled. Appellee's motion to disregard the jury's answer to special issue no . 18 and for judgment was granted, and judgment was rendered by the trial court against appellant in favor of appellee for damages in the sum of $38,094.08, with interest thereon at the rate of six percent per annum from April 23, 1966. Appellant then appealed, assigning ten points of error, to which appellee has replied in seventeen counterpoints. The evidence pertinent to the assignments of error may be summarized as follows:

The structural soundness of the steel frames was first questioned by the general contractor shortly after their installation. In January, 1966 ¹, and on February 5, Lewis informed Eppes that he questioned the strength of the frames, and on February 7, advised appellee by letter that he questioned the structural design of the building, and that 'The structure of this building should be checked at once by a qualified engineer.' Eppes was informed, and thought the problem concerned the purlins that were rolling. He approached appellant and was furnished with a plastic analysis on or about February 17, reflecting the frames had a safety factor of almost 100%; however, appellant claims the plastic analysis pertained to stress rather than to deflection. The general contractor's engineer formed an opinion that the frames were generally unstable, causing deflection that would permit roof water to pyramid and would endanger safety. He informed appellee's officers. Although assured by the architect that the building was adequate, appellee's board chairman noticed the frames were limber and of very thin material, and appellee, feeling caught between its architect and general contractor, hired J. Weldon Hunnicutt, an engineer, to give it an independent answer. In early March, Hunnicutt inspected the building with Charles Wilson, appellee's president and general manager. Hunnicutt called Wilson's attention to the obvious deflection of the frames, wrinkling in the web plate, and ponding of water on the roof. Wilson was aware of some deflection at this time. Hunnicutt took measurements to assist him in his investigation. By letter dated March 12 addressed to appellee, Hunnicutt stated his observations could possibly indicate the framing is lighter than normally required, but this was 'not to say the roof framing is unsafe as now built,' and requested a complete set of structural steel shop drawings, in lieu of his making another trip to secure detailed measurements, to complete his computation. By a letter dated April 19 and received by appellee on April 21, Hunnicutt advised the need for further investigation to arrive at a final conclusion because of overstress in the frames. Before Hunnicutt completed his investigation, and arrived at a final conclusion, the injury complained of occurred. It is undisputed that appellee did not know the frames were not cambered until after April 23. The jury findings that the steel frames were defective when delivered because of excessive deflection due to lack of camber are not challenged and we find them to be supported by sufficient evidence of probative force.

Appellant's first assignment of error is that the trial court erred in failing to render judgment in its favor on its plea of the two-year statute of limitations. In this connection, appellant asserts appellee's causes of action on the alleged torts were barred as a matter of law because it is undisputed that appellee had damage and injury, of which it was aware, more than two years prior to the filing of suit; appealee answers that it did not know that the frames were defective prior to the partial collapse of the roof on April 23, and that its causes of action accrued on that date, less than two years before the filing of suit on April 22, 1968.

As directed to the circumstances of this case, the two-year statute of limitations, Art. 5526, Vernon's Ann.Civ.St., is applicable to the tort actions founded on negligence, Linkenhoger v. American Fidelity & Casualty Co., Inc., 152 Tex. 534, 260 S.W.2d 884 (1953) and on breach of implied warranty. ² Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 102 S.W. 908 (1907). The period of limitations on actions for negligence begins to run from the commission of the negligent act, and not from the time of the ascertainment of damages, if the negligent act constitutes the invasion of a legally protected interest of another, even in the absence of knowledge by the one who is injured, Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888), and even though almost all of the injured party's damages accrued more than two years after the initial wrongful invasion. Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 (1954). The facts in the present case reveal as a matter of law that the negligent acts of appellant found by the jury constituted an invasion of appellee's right causing a legal injury when the defective frames were...