Strakos v. Gehring

• Decision Date: 27 June 1962
• Docket Number: No. A-8422,A-8422
• Citation: 360 S.W.2d 787
• Parties: John STRAKOS, Petitioner, v. John H. GEHRING, Respondent. N. M. HUBBARD, INC., Petitioner, v. John H. GEHRING and John Strakos, Respondents.
• Court: Texas Supreme Court

Page 787

360 S.W.2d 787

John STRAKOS, Petitioner, v. John H. GEHRING, Respondent.

N. M. HUBBARD, INC., Petitioner, v. John H. GEHRING and John Strakos, Respondents.

No. A-8422.

Supreme Court of Texas.

June 27, 1962.

Rehearing Denied Oct. 3, 1962.

Graves, Dougherty, Gee & Hearon, Wm. L. Garwood, Austin, and James G. Sargent, Houston, for Hubbard, Inc.

Scardino & Regnier, and Hill, Brown, Kronzer & Abraham, Robert L. Steely, Houston, for Strakos.

Painter & Painter and Kucera, Lay & Lightfoot, Houston, for Gehring.

NORVELL, Justice.

Based upon jury findings, John Strakos recovered a judgment against John G. Gehring and N. M. Hubbard, Inc. ¹ Hubbard was awarded indemnity over against Gehring. The Court of Civil Appeals affirmed the judgment against Hubbard but decreed that Strakos take nothing against Gehring. 345 S.W.2d 764. We granted the applications for writ of error filed by Hubbard and Strakos and the judgment of the Court of Civil Appeals is now reversed and the judgment of the trial court modified so as to provide that John Strakos do have and recover of and from John H. Gehring and N. M. Hubbard, Inc., jointly and severally, the sum of $50,437.00, with interest thereon at the rate of six per cent per annum from November 16, 1959 until paid, and that N. M. Hubbard, Inc. do have and recover over and against John H. Gehring any and all sums in excess of one half of the amount of the judgment that may be collected or made under execution by John Strakos from N. M. Hubbard, Inc. as and for contribution under Article 2212, Vernon's Ann.Tex.Stats. Similarly, the decree of the trial court is modified so as to provide that John H. Gehring do have and recover over and against N. M. Hubbard, Inc. all sums in excess of one half of the amount of the judgment that may be collected or made under execution by John Strakos from John H. Gehring as and for contribution under Article 2212. The judgment of the trial court as so modified is affirmed.

Strakos severely injured his leg when he stepped into a hole alongside the Crosby-Huffman Road, which was being incorporated into the State Farm-to-Market Road System. Harris County had secured additional right of way and agreed to relocate the fencing along both sides of the road. Gehring contracted with the county to remove the fences and place them along the new right-of-way lines. Gehring did not fill any of the holes left by the removal of posts from the original fence line.

In the meantime, the State of Texas contracted with the Austin Road Company to resurface and widen the road. Austin engaged Hubbard as a subcontractor to do the dirt work necessary to prepare the road for surfacing. The State required the road to be kept open for public use during construction, but warning barricades were erected at each end of the eight-mile section of the road under construction and covered by the Austin contract.

On July 2, 1956, after Gehring had finished and Hubbard had commenced work upon the stretch of eight-mile road involved, Strakos approached a gate in the fence at the I. C. Matthews farm, where he was to do some carpentry work. This fence had been moved about ten feet back by Gehring under his contract. Strakos fell into a hole along the border of the entrance way to the Matthews gate and about ten feet distant therefrom. Gehring had not filled this hole nor erected a sign or other device to give warning of its existence when he completed the moving of the fence along the boundary of the Matthews farm. The hole was approximately three feet in depth and virtually hidden by grass and other vegetation. Strakos suffered a permanent shortening of his leg and a permanent aggravation of an arthritic condition of his back.

The Court of Civil Appeals, relying on the case of Mansfield Construction Co. v. Gorsline, Tex.Com.App., 288 S.W. 1067, ² reh. den., 292 S.W. 187, exonerated Gehring from all liability on the holding that Gehring owed no duty, either by contract or by law, to protect the traveling public after acceptance of his work by Harris County. Despite the fact that the formal acceptance of Gehring's work and payment by the Commissioners Court was not until July 12, 1956, the Court of Civil Appeals found sufficient evidence to support the jury finding that there was a 'practical acceptance' on June 18th or 19th, 1956, when the work was inspected and approved by county officials.

The Gorsline case, supra, is apparently the primary authority in Texas for the doctrine that an independent contractor is relieved of any duty of care to the general public after acceptance of his work by his employer. This doctrine, together with the rule that a manufacturer was not liable to the general public for injuries from defective products sold through intermedate suppliers, seems to have developed from the case of Winterbottom v. Wright, (1842) 1 M & W 109, 11 L.J.Ex. 415, 152 Eng.Rep. 402. In that case, there was dicta to the effect that only parties to a contract could recover for negligent performance of the contract. Thus, 'privity of contract' became the earliest rationale for denial of liability in both types of cases. See Comment, 1 Baylor Law Rev. 420, 37 Tex.Law Rev. 354.

No sooner had this doctrine developed and been applied to the two classes of cases mentioned, than the courts began to engraft exceptions upon them. As regards products liability for manufacturers and processors, the exceptions largely swallowed the rule. With Judge Cardozo's opinion in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, it became established that a manufacturer has an affirmative duty to those who may be reasonably expected to use his products or to be in the vicinity of such usage, and hence breach of this duty by the production of articles that are dangerous to human safety while being reasonably used, will establish tort liability. See, Annotation, 164 A.L.R. 569.

The rule of the MacPherson case was not immediately applied in the contractor cases. Instead, the courts continued to apply the 'accepted work' doctrine, giving several justifications in addition to the privity of contract rationale. See Annotation, 13 A.L.R.2d 191. Gradually, however, a general trend away from nonliability for negligence in this area became evident, but the primary vehicle for this trend was a group of wellestablished exceptions to the general rule instead of its outright repudiation. See, Annotation, 58 A.L.R.2d 865, § 2(d).

We think however, in the interest of clarity in the statement of the law, we should not concern ourselves with exceptions which, as in the cases of products liability, have largely emasculated the rule but should now disapprove the doctrine set forth in Gorsline in 1926 that a contractor cannot be held liable in tort for injuries occurring after the acceptance of his work by his employer although the cause of injury was the condition in which the contractor left the premises upon the completion of the work. Under the particular facts of this case it could have been reasonably anticipated that the leaving of a hole near the approach of a farm access gate could cause injury if the hole be left unfilled for a comparatively short period of time. It is difficult to see why a failure to use ordinary care to protect those using the farm access road would be terminated by an agreement between the contracting parties. Why should a distinction be made between an injury occurring the day before the acceptance of the contractor's work by the county (considering liability to exist at that time) and an injury occurring the day after the work was contractually accepted? The only authority cited in Gorsline for the holding now in issue was a statement from 14 R.C.L. 86 to the effect that an employer generally incurs responsibility to the public for defective work after he accepts it from the contractor. The fact that one who assumes control over a dangerous condition left by a contractor may be liable for injuries resulting therefrom does not necessarily mean that he who creates the danger should escape liability.

Seemingly this Court has not cited the Gorsline opinion except in Driver v. Sorth Construction Co., 154 Tex. 66, 72, 273 S.W.2d 603, and then only for the general proposition that there can be no negligence without a breach of duty. The Court specifically observed in the Driver case that there was no contention made that the contractor's work had been accepted and that all the evidence showed the roadway involved there was still under construction.

A number of Court of Civil Appeals opinions have cited Gorsline, but none of these involved the 'accepted work' doctrine. Usually, the case is cited in support of the general rule that negligence presupposes a duty or to sustain the proposition that a contractor, while still performing highway work, owes a duty of care to the traveling public. Gehring calls our attention to Lewis v. Taylor, Tex.Civ.App., 339 S.W.2d 917, no wr. hist. However, the issue there involved was whether the employer was responsible for injuries to a third person caused by defective work which he had accepted from the contractor. Such cases as this are not determinative of the contractor's liability under the situation presented by the present record. A few cases have considered the 'accepted work' doctrine without citing the Gorsline case, but insofar as statements therein may conflict with what is said here, they should no longer be considered authoritative. ³

Our rejection of the 'accepted work' doctrine is not an imposition of absolute liability on contractors. We simply reject the notion that although a contractor is found to have performed negligent work or left premises in an unsafe condition and such action or negligence is found to be a proximate cause of injury, he must nevertheless be held immune from liability solely because his work has been completed and accepted in an unsafe condition.

It is urged that we should...