Sanchez v. Mbank of El Paso

• Decision Date: 06 June 1990
• Docket Number: No. 08-89-00384-CV,08-89-00384-CV
• Citation: 792 S.W.2d 530
• Parties: 12 UCC Rep.Serv.2d 1169 Yvonne G. SANCHEZ, Appellant, v. MBANK OF EL PASO, Appellee.
• Court: Texas Court of Appeals

Page 530

792 S.W.2d 530

12 UCC Rep.Serv.2d 1169

Yvonne G. SANCHEZ, Appellant, v. MBANK OF EL PASO, Appellee.

No. 08-89-00384-CV.

Court of Appeals of Texas,

El Paso.

June 6, 1990.

Rehearing Overruled July 5, 1990.

Patrick L. Quinn, El Paso, for appellant.

Brenda J. Norton, Kemp, Smith, Duncan & Hammond, El Paso, for appellee.

Before FULLER, WOODARD and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

This is an appeal from a summary judgment granted in favor of MBank El Paso in a suit for damages arising out of the repossession of an automobile owned by the Appellant. We reverse and remand.

On July 12, 1986, two men hired by El Paso Recovery Service came to Appellant's home in a tow truck. They proceeded to hook the tow truck to Appellant's MBank financed 1978 Pontiac Trans-Am automobile parked in her driveway. Appellant, who was in the yard cutting the grass at the time, asked them their purpose and demanded that they cease their attempt to take the automobile and leave the premises. When they ignored her, she entered and locked herself in the automobile in an effort to stall them until the police or her husband could arrive. It was only after they got the automobile in the street that they identified their purpose. One of the men tried to get Appellant out of the automobile, asked her to get out twice and told her that she would be spending the weekend with their Doberman pinscher guard dog. She refused to get out. They then took the automobile with Appellant locked in it on a high speed ride from her home to the repossession lot where it was parked in a fenced and locked yard with a loose guard dog. She was rescued sometime later by her husband and the police.

Appellant filed suit, alleging that El Paso Recovery Service and its employees were agents and employees of MBank and while acting within the course and scope of their employment, willfully breached the peace in violation of Tex.Bus. & Com.Code Ann. sec. 9.503 (Vernon Supp.1990), causing damages to Appellant. MBank filed its motion for summary judgment on the grounds that El Paso Recovery Service was an independent contractor. Summary judgment was granted on that basis.

In Appellant's sole point of error, she avers that the trial court erred in granting the summary judgment in favor of MBank since the breach of the peace violation by the employees of El Paso Recovery Service was imputed to MBank. Though Appellant concedes that the relationship between MBank and El Paso Recovery Service is that of employer/independent contractor and not that of employer/employee, she nevertheless contends the duties imposed by Section 9.503 are nondelegable and therefore, MBank remains liable for the independent contractor's tortious acts. Section 9.503 provides in part as follows:

Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. (Emphasis added).

As a general rule, an employer or owner is not liable for the negligent or tortious acts of an independent contractor in prosecuting the work for which he was employed. Jones v. Southwestern Newspapers Corporation, 694 S.W.2d 455 (Tex.App.--Amarillo 1985, no writ). There are a number of exceptions to this rule, however. In the Restatement (Second) of Torts, secs. 424, 427 (1965), cited by both parties, two of the exceptions to the general rule that an employer is not liable for the negligent or tortious acts of an independent contractor are (1) where the employer is by statute or administrative regulation under a duty to provide specific safeguards for the safety of others, he is liable to the others for whose protection the duty is imposed for harm caused by the failure of the contractor employed by him to provide the required safeguards (sec. 424), and (2) where the employer employs an independent contractor to do work involving a special or inherent danger to others, he is liable for physical harm to persons resulting from the contractor's failure to take reasonable precautions against the danger (sec. 427).

Texas recognizes these exceptions to the general rule as well as a number of others: Gulf, C. & S.F. Ry. Co. v. Stephenson, 273 S.W. 294 (Tex.Civ.App.--Galveston 1925, no writ), where the independent contractor was employed by the railroad to tear out fences along a right-of-way, the railroad, having failed to comply with applicable statutes, was liable for crop damage resulting from livestock entering through fence openings; Quanah, A. & P. Ry. Co. v. Goodwin, 177 S.W. 545 (Tex.Civ.App.--Amarillo 1915, writ ref'd), where the railroad had a duty to keep street crossings in repair, the duty could not be shifted to an independent contractor and the railroad remained concurrently liable for the contractor's negligence; Cage v. Creed, 308 S.W.2d 78 (Tex.Civ.App.--Waco 1957, no writ), where the employer was liable for the negligence of his contractor in failing to keep burning...