Olson v. Passero

• Decision Date: 04 May 1966
• Docket Number: No. 5762,5762
• Citation: 402 S.W.2d 953
• Parties: Norris OLSON et ux., Appellants, v. A. S. PASSERO, Ind. & d/b/a, etc., et al., Appellees. . El Paso
• Court: Texas Court of Appeals

Page 953

402 S.W.2d 953

Norris OLSON et ux., Appellants, v. A. S. PASSERO, Ind. & d/b/a, etc., et al., Appellees.

No. 5762.

Court of Civil Appeals of Texas.

El Paso.

May 4, 1966.

Rehearing Denied May 25, 1966.

Irion & Rash, El Paso, for appellants.

Hardie, Grambling, Sims & Galatzan, John A. Grambling, William T. Deffebach, Owen & Steinberger, El Paso, for appellees.

PRESLAR, Justice.

This is a suit for damages for the cost of restoring a rock fence or retaining wall at the premises owned by appellants and built by appellees. Appellants, Norris Olson and wife, Bernice Olson, sued appellees, A. S. Passero, individually and d/b/a A. S. Passero General Contractor, and W. Gerald, Inc. and its successors in interest, Passero Construction, Inc., for damages in the amount of $3,125.00, basing their suit on negligence in the construction of the wall, a portion of which fell down. Trial was before a jury, but at the conclusion of the plaintiffs' evidence in chief, the trial court instructed a verdict for the defendants. We affirm the judgment of the trial court.

The defendants' motion for instructed verdict contained several counts and the judgment does not reflect which was the basis of the trial court's decision, but we are of the opinion that the judgment should be sustained on the basis of the defendants' plea of the two-year statute of limitations.

Plaintiffs' cause of action against the defendants is for certain negligent acts and omissions of the defendants. Negligence alone is the foundation of the cause of action. No contractual relation or warranty is relied on. The negligent acts and omissions pleaded and the evidence adduced in support thereof are in regard to the construction of the wall. It is undisputed that the construction was completed more than two years prior to suit. It is not contended that there was a duty to maintain, nor any violation of any such duty during the two years prior to suit. Under this state of the record, we believe that this is an action which comes within Article 5526, Vernon's Annotated Texas Civil Statutes, and that plaintiffs' claim is barred by the Texas two-year statute of limitations.

The rock wall surrounds a portion of the dwelling purchased by plaintiffs on January 28, 1961. It was constructed by the defendants, who sold it to one Giallanza and wife, on November 30, 1960, and they in turn sold to plaintiffs. The Giallanzas are not parties to the suit, and plaintiffs in their brief say that their dealings were with defendants, and the sale to the Giallanzas was all a part of the transaction and was done to establish financing, since plaintiff was too old for long-term financing. The method of purchase is unimportant, for the suit was not brought on a contractual relationship of the parties. Plaintiffs do allege that prior to their purchase they inspected the premises with the defendant, A. S. Passero, and specifically inquired about the wall and were assured by him that it was in good condition and would not fall down. Plaintiffs testified that at that time the wall had a large crack running diagonally across it,...