Sims v. Southland Corp.

• Decision Date: 20 December 1973
• Docket Number: No. 740,740
• Citation: 503 S.W.2d 660
• Parties: Bobby L. SIMS, Appellant, v. The SOUTHLAND CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 660

503 S.W.2d 660

Bobby L. SIMS, Appellant, v. The SOUTHLAND CORPORATION, Appellee.

No. 740.

Court of Civil Appeals of Texas Tyler.

Dec. 20, 1973.

Rehearing Denied Jan. 10, 1974.

Thompson, Coe, Cousins, Irons & Porter, Franklin H. Perry, Dallas, for appellant.

John A. Mackintosh, Jr., and Emily A. Parker, Dallas, for appellee .

MOORE, Justice.

This is an appeal from a summary judgment. Bobby L. Sims, appellant, filed a tort action against The Southland Corporation, appellee, for damages for negligence allegedly committed by Southland's employees on April 27, 1970, causing a fire resulting in the destruction of appellant's store building. The fire occurred on June 14, 1971, but appellant did not file suit until May 25, 1972. Appellee, The Southland Corporation, answered the suit and filed a motion for summary judgment under the provisions of Rule 166--A, Texas Rules of Civil Procedure. Southland specifically alleged that it was entitled to a summary judgment, as a matter of law, because appellant's petition showed upon its face that the negligent acts complained of were committed more than two years prior to the filing of the present suit and consequently appellant's cause of action was barred, as a matter of law, by the two-year statute of limitations. Article 5526, Vernon's Ann.Tex.Civ.St. After a hearing, the trial court granted Southland's motion for summary judgment and rendered a 'take nothing' judgment against appellant, Bobby L. Sims, from which judgment he duly perfected this appeal.

Appellant asserts by a single point of error (1) that the trial court erred in rendering a summary judgment because he contends that the proof fails to show that his claim was barred by the two-year statute of limitations and (2) that the record shows that there were disputed issues of fact to be determined by the court or jury. We sustain appellant's point of error and hold that the cause of action was not barred by limitations and that the record presents disputed issues of material fact. Accordingly, we reverse and remand the cause for trial on the merits.

Upon the question of limitations, Article 5526, supra, provides as follows:

'There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

'1. Actions of trespass for injury done to the estate or the property of another.

The undisputed summary judgment evidence reveals that at all times material to the suit, appellant, Bobby L. Sims, was the owner and operator of the P & S Drive-in Grocery in Midlothian, Texas. By prior oral agreement between the parties, the Southland Corporation delivered a 'Reddi,-Ice' icebox to appellant on April 27, 1970, and installed the same on the outside of appellant's store. The Southland Corporation owned the box and did not require any rental payments from Sims. The agreement for use of the box appears to have been made for the mutual benefit of both parties. The benefit accruing to Sims, the bailee, was that the box would afford additional storage space for ice for sale to the public. The benefit to Southland Corporation, the bailor, was Sims' agreement that he would sell only 'Reddi-Ice' manufactured by The Southland Corporation. At the time the box was installed, the employees of Southland, with appellant's permission, cut a hole in the wall behind the box and threaded the electrical cord through the hole into the grocery store where the cord was plugged into a wall socket . While Southland's employees were in the process of installing the box, they discovered that the electrical cord was not long enough to reach to the wall socket. As a result, they spliced the electrical cord so as to extend the length thereof. Appellant was present and witnessed the cutting of the hole in the wall and the splicing of the electrical cord and made no objections to either the splicing of the cord or the manner of installation. After the icebox was installed, appellant had no further contact with Southland with regard to the maintenance or use of the icebox until after the date of the fire, June 14, 1971.

The record shows that appellant filed his suit for damages on May 25, 1972, more than two years after the delivery and installation of the icebox but less than two years after the date of the fire. The petition shows that each and every act of negligence allegedly causing the fire occurred on April 27, 1970, the date the icebox was installed, which was more than two years before the suit was filed. According to appellant's pleading and summary judgment evidence, the fire was caused either by a defect in the electrical wire leading from the box into the store or by an overloading of the line or by appellee's failure to ground the same.

Appellee asserts that a cause of action based upon negligence accrues at the time of the wrongful act and consequently limitation commences to run at that time and not at the time of the ascertainment of damages, if any, citing Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888).

On the other hand, appellant argues that the statute of...