Sowders v. M.W. Kellogg Co.

• Decision Date: 22 December 1983
• Docket Number: No. 01-83-0113-CV,01-83-0113-CV
• Citation: 663 S.W.2d 644
• Parties: Janetta SOWDERS, Individually and as Community Survivor of the Estate of Marshall Jefferson Sowders, Deceased, et al., Appellants, v. The M.W. KELLOGG COMPANY and/or the M.W. Kellogg Company, a Division of Pullman, Inc., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 644

663 S.W.2d 644

Janetta SOWDERS, Individually and as Community Survivor of the Estate of Marshall Jefferson Sowders Deceased, et al., Appellants, v. The M.W. KELLOGG COMPANY and/or the M.W. Kellogg Company, a Division of Pullman, Inc., Appellee.

No. 01-83-0113-CV.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 22, 1983.

Rehearing Denied Jan. 12, 1984.

Mike Gallagher, Wayne Fisher, Houston, for appellants.

Judson R. Wood, Paul E. Stallings, Brian Jensen, Cliff Harrison, Kenneth Tekell, Houston, for appellee.

Before JACK SMITH, DUGGAN and BULLOCK, JJ.

OPINION

DUGGAN, Justice.

This is an appeal from a summary judgment in favor of the defendants in a personal injury suit arising from an explosion at an ARCO refinery in Pasadena. The plaintiffs, together with an intervening insurance carrier asserting its subrogation rights, charged the defendant with negligence and strict liability in tort in the design and construction of a lubricating oil solvent treating plant at the refinery.

The sole contention asserted in the defendant's motion for summary judgment was that the actions were barred by time limitation because more than ten years had elapsed between the substantial completion of the project in 1942 and the date of the accident, July 24, 1973. Tex.Rev.Civ.Stat.Ann. art. 5536a (Vernon Supp.1983).

The plaintiffs challenge, in their first point of error, the constitutionality of article 5536a and, in their second point of error, the statute's application to a product manufacturer.

Article 5536a, enacted in 1969 and amended in 1975, prohibits recovery of damages from architects, engineers, and "any person" performing or furnishing the design, planning, or inspection of construction or repair of any improvement to real property for injury, death, or property loss arising out of the defective or unsafe condition of the improvement unless the claim is filed within ten years after substantial completion of the improvement.

Plaintiffs claim, first, that the statute violates Tex. Const. art. 3, § 35, which provides:

No bill ... shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.

The Supreme Court stated in Harris County Fresh Water Supply Dist. No. 55 v. Carr, 372 S.W.2d 523 (Tex.1963), that the title requirement in legislative bills is to give fair notice during the legislative process so as to reasonably forewarn of the subject of the statute.

The title requirement was designed to assure readers of the title during the legislative process that they would not be required to study the body of the Act to avoid being misled or deceived.

Id. at 525.

Plaintiffs insist the caption given article 5536a is deceptive because the act contains more than one subject which is not fairly expressed in the title. The caption in question reads as follows:

An act creating a time limitation within which certain actions must be brought against any person performing or furnishing construction or repair of an improvement to real property; amending Chapter 418, Acts of the 61st Legislature, Regular Session, 1969 (Article 5536a, Vernon's Texas Civil Statutes); and declaring an emergency.

Act of May 20, 1975, ch. 269, 1975 Tex.Gen.Laws 649.

This caption, according to plaintiffs, fails to indicate that substantive rights against designated individuals are abolished after ten years, regardless of when such rights came into being. Stated another way, the subject of barring "unaccrued rights" is not clearly expressed in the title. Plaintiffs secondly complain that the title "purports to operate equally on any person furnishing construction without acknowledging the existence of the various excepted classifications." As a third objection, plaintiffs view as "fraudulent" the placement of the act under the limitations title of the Texas statutes.

This third contention is without merit. The recognized purpose of a statute of limitations is to compel the settlement of claims within a reasonable time after their origin. Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977); Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975). Such statutes are generally remedial only and do not affect substantive rights. See Alvarado v. Gonzales, 552 S.W.2d 539, 542 (Tex.Civ.App.--Corpus Christi 1977, no writ).

Article 5536a is distinguishable from the usual statute of limitation, which operates merely to bar enforcement of a right; this statute takes away the right altogether after the specified ten-year period. The time period begins to run when the improvements are completed or the operations commence, rather than when the cause of action accrues. An owner or third person, injured or killed by defects or unsafe conditions of improvements to real property, will have no claim against the individuals protected by the statute after the limitation period has run. The right of action is cut off entirely before it arises and can be asserted.

Article 5536a, commonly called an "architects' and builders' statute," is a statute of repose. Such statutes demonstrate legislative recognition of the protracted and extensive vulnerability to lawsuit of architects and builders by owners and other persons. They represent a response to the inadequacy of the traditional statutes of limitation, whose time periods begin upon discovery of the claim or upon occurrence of the injury. See 51 Am.Jur.2d Limitation of Actions § 15 (1970); Annot., 93 A.L.R.3d 1242 (1979); Thompson, When the walls come tumbling down--article 5536(a): the Texas architect and engineer statute of limitation, Tex. Trial Lawyers Forum, Oct.-Dec. 1983, at 28.

We see no constitutional infirmity on account of the caption given article 5536a. A statute does not fail to comply with the requirement that no bill shall contain more than one subject, which shall be expressed in its title, when its provisions relate directly or indirectly to the same general subject, have a mutual connection, and are not foreign to the subject expressed in the title. Robinson v. Hill, 507 S.W.2d 521, 524-25 (Tex.1974). The caption of an act should be liberally construed so as to uphold its validity if at all possible; if the caption states the main subject of an act, it will also be construed to cover any subsidiary matters reasonably connected, germane, incidental, or relevant to the main subject. Lee v. State, 163 Tex. 89, 352 S.W.2d 724, 725 (1962).

The title clearly manifests an intention to raise a statutory time barrier, which is precisely what the statute accomplishes. The title does not suggest by the use of the phrase, "statute of limitation," or by any other words, that the limitation period runs from the accrual of a cause of action. In fact, the title does not state either when the period begins or the length of the period. Neither does it specify the designated individuals granted immunity from liability, nor does it set out exactly what changes were made in the amended act.

On the other hand, it does state that the act creates a "time limitation," which directly relates to the no-action provision in the statute. Compare Ex parte Wilson, 374 S.W.2d 229 (Tex.Cr.App.1964) (wherein the caption phrase, "an act to prohibit," followed by the main subject, was sufficient to embrace the provision in the body of the statute penalizing persons violating the statute). It does refer to "any person performing or furnishing construction or repair of an improvement to real property," which directly relates to the architects, engineers, and other persons designated in the statute.

To summarize, the caption does put the reader on notice of the subject in the body of the statute. A bill's caption need not set out the full details of the bill itself. Yeary v. Bond, 384 S.W.2d 376, 379 (Tex.Civ.App.--Amarillo 1964, writ ref'd n.r.e.). It is also not necessary that the caption of an amendatory act set out exactly what changes were made in the amended act. Smith v. Davis, 426 S.W.2d 827, 833 (Tex.1968); State ex rel. Grimes County Taxpayers Ass'n v. Texas Municipal Power Agency, 565 S.W.2d 258, 272 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ).

In support of their contention that the caption of the subject bill is constitutionally defective, the plaintiffs rely upon Bagby Elevator and Electric Co., Inc. v. McBride, 291 So.2d 306 (Ala.1974). We find the reasoning employed by the dissenting justices in that decision and the holdings in Howell v. Burk, 90 N.M....