Beall v. Lo-Vaca Gathering Co. , 1975 Tex. App. LEXIS 3134 ( 1975 )

OPINION

YOUNG, Justice.

This combination summary judgment and plea of privilege case arose from injuries sustained by a sixteen year old motorbike rider when he was wrested from his moving motorbike upon his hitting a cable strung across a private road about neck high between two utility poles. The action originated as one for personal injuries brought by Larry Beall, Sr., individually and as next of friend of his minor son, Larry Beall, Jr., against defendants Lo-Vaca Gathering Company, Edwin Wilde, Walter Wilde individually and as Independent Executor of the Estate of Fenton A. Wilde, Burkie L. Harlow and Jimmy Hall.

By judgment rendered February 28,1975, the trial court granted Lo-Vaca’s motion for summary judgment and sustained pleas of privilege filed on behalf of all other defendants, residents of Tom Green County, except for Hall. He filed only a general denial and the cause against him was severed and retained for trial in Nueces County. The Bealls appeal from that judgment.

On February 27, 1972, the younger Beall was injured while riding his motorbike west to east down a “turn row” on the property of Edwin Wilde. Young Beall was attending a motorbike contest being held on an abandoned airstrip owned by Walter Wilde and leased to Harlow and Hall for motor vehicle and motorbike races. The property upon which the racing events were being held is directly adjacent to that owned by Edwin Wilde and, in fact, portions of the abandoned airstrip extend onto Edwin Wilde’s property. The airstrip itself was shaped like an inverted “N”, with the parallel sides running from north to south. Running north and south parallel and near to the westernmost runway is a hard top surface known as Cemetery Road. The designated access point to the race facilities extends from Cemetery Road to the southern edge of the runway. However, the “turn row” is also open to Cemetery Road along the north edge of the runway. There was testimony that the “turn row” was also used to gain access to the race area. The “turn row” upon which young Beall was injured was east and west across the northern edge of the parallel portion of the runway approximately on the border between the adjacent tracts owned by the Wildes.

In July or August of 1970 the Concho Valley Electric Company erected two 32' utility poles in approximately the center of and with one pole on each edge of the “turn-row” about 40-50' apart to supply electricity to grain storage bins owned by Edwin Wilde. Thereafter on October 21, 1970, Lo-Vaca leased ten acres of land from Edwin Wilde for the purpose of storing and welding pipe. The ten acres included the northern edge of the runway and that portion of the “turn row” upon which the utility poles were located. In order to allow large trucks to gain access to the storage and welding areas Lo-Vaca graded the “turn row” and spread caliche over the graded surface. To deter truck traffic from going between the poles, Lo-Vaca while in possession of the ten acres strung a wire or cable between the utility poles approximately 40"-50" off the ground. It was this cable which appellant Larry Beall struck and which was the cause of his injuries. The lease expired in April of 1971 at which time Lo-Vaca returned possession of the ten acres to Edwin Wilde.

The appellant alleges two points of error: (1) that the trial court erred in granting defendant Lo-Vaca’s motion for summary judgment; and (2) that the trial court erred in sustaining the pleas of privilege of defendants Edwin Wilde, Walter Wilde individually and as Independent Executor of Estate of Fenton Wilde and Burkie Harlow. A determination of the merits of appellants’ first point of error will also determine appellants’ second point of error.

More precisely, appellants’ first point of error is that the trial court erred in granting Lo-Vaca’s motion for summary judgment because Lo-Vaca did not prove as a matter of law that there was ho genuine issue of fact as to one or more essential elements of plaintiffs’ cause of action. In its motion for summary judgment Lo-Vaca alleged that the appellant had proven no cause of action against it. The basis for this motion was that Lo-Vaca had vacated the premises some eight months before the accident in question and that Lo-Vaca conclusively proved that their landlord and co-appellee, Edwin Wilde, was advised of the cable between the poles and readily accepted the property in this condition. Lo-Vaca, therefore, contends that as a matter of law their liability to anyone coming onto the property ceased upon the acceptance of the property by the landlord Edwin Wilde.

The appellant relies primarily on the case of Strakos v. Gehrig, 360 S.W.2d 787 (Tex.Sup.1962). In Strakos a contractor was employed by the State to widen and improve an eight mile section of road. After completing the improvements the contractor left several open post holes covered by weeds along an old fence line. The contractor’s work was accepted by the county. Thereafter the appellant Strakos fell into one of these unmarked holes and suffered severe injury. In its decision the Supreme Court rejected the decision of the lower court which relied on the case of T. J. Mansfield Const. Co. v. Gorsline, 288 S.W. 1067 (Tex.Comm’n App.1926) for the proposition that a contractor owed no duty to third persons for injuries suffered on property where the contractor had worked, once the property was returned and accepted by the other contracting party. In its holding in Strakos the Supreme Court rejected the “accepted work” doctrine and held that a contractor remained liable for negligent work done or unsafe conditions left on premises even after the premises are accepted by the other contracting party.

Strakos does not mean, however, that a contractor becomes strictly liable to third parties for any negligent work or defective condition left on the premises after it had been accepted. To the contrary, this decision only brings contractors within the general rules of tort litigation.

In that regard, it was stated by the Supreme Court at page 791 in the Strakos decision:

“. . .in certain cases, factors or conditions may arise after the completion of the work, including the lapse of a substantial period of time, such as would compel a finding that independent causes had intervened to produce the injury.

The basic holding of Strakos as it applies to this case is that one who is in temporary possession and control of land, such as a contractor or lessee, will not have all liability for injury caused by acts done to the land terminate upon relinquishment of the land.

Sections 352 and 353 of the Restatement of the Law, Torts (2d), clearly set out the liability one has upon transferring land. Section 352 sets out the transferor’s liability for dangerous conditions existing at time of transfer:

“. . .a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.” (Emphasis supplied.)

Section 353(1) is an exception to Section 352 where there are undisclosed dangerous conditions known to the vendor:

“(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if

(a) the vendee does not know or have reason to know of the condition or the risk involved, and

(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.” (Emphasis supplied.)

Further, the holding of the Court of Appeals for the 5th Circuit in United States v. Inmon, 205 F.2d 681 (1953) is applicable to this case. In Inmon the court held that the liability of a grantor of land to the grantee or third persons for the dangerous or defective conditions of the land ceased upon the transfer of possession and control. This rule is subject to the qualification that the grantee must disclose any latent defect or dangerous condition he knows or should know will not be discovered by the grantee.

For all practical purposes Lo-Vaca stood in the same position as a grantor of this land when it returned the land to their lessor, Edwin Wilde. During the six-month period preceding the termination of their lease Lo-Vaca had the exclusive right of possession, use and control over this land. Upon termination of the lease, therefore, it reconveyed the land to Edwin Wilde in much the same manner as a grantor would convey land to his grantee.

In applying the holding of Strakos, In-mon and the above quoted section of the Restatement to the facts of this case, it is clear that the trial court properly granted appellee Lo-Vaca’s motion for summary judgment. This is so even though under the Supreme Court’s ruling in Strakos, Lo-Vaca could not escape liability for the offending instrumentality simply by returning possession of the land to Edwin Wilde; and under Sections 352 and 353 of the Restatement Lo-Vaca had a duty to disclose this instrumentality to Edwin Wilde.

Lo-Vaca’s summary judgment proof consisted of eighteen excerpts from the deposition of appellee Edwin Wilde. Some of Edwin Wilde’s deposition testimony is as follows:

"Q Well, let’s back up to fall of 1970 when Lo-Vaca first came upon your premises. Can you give me some idea in times of months after their arrival that you first became aware that there was that horizontal cable that we have been talking about?

A If I guess 8 months . . .

A I’d say 3 months. That’s my estimation. .

Q Yes, sir. Then your answer would be that the cable was put across the southern and northern utility poles sometime in the year 1970.

A End of 1970.

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Q When you in late 1970 noticed that the horizontal cable between the two poles was erected, what, if anything, did you do?

A Not anything. It protected lives with them going around it. .

Q Then you’re saying that you did not make any protest, official or unofficial, to anybody?

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A No, sir.”

Appellee Edwin Wilde further stated that Lo-Vaca cleaned up the land to his satisfaction and in April or May of 1971 left the property and never returned.

This evidence offered by appellee Lo-Vaca in support of its motion for summary judgment clearly shows that as a matter of law, Lo-Vaca had discharged its duty of disclosure to Edwin Wilde and upon vacating the premises in April or May of 1971 terminated any liability it had for constructing the horizontal cable. Its liability ceased as a matter of law at this time.

As our Supreme Court pointed out in Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.Sup.1970), the question on appeal in a summary judgment case “is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim a cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action.” See also Schrader v. Garcia, 516 S.W.2d 690 (Tex.Civ.App.—Corpus Christi 1974, no writ); Holzapfel v. Brueggman, 404 S.W.2d 916 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.).

When a defendant moves for summary judgment he must show as a matter of law, that he will prevail since there is no genuine fact issue as to at least one essential element of plaintiff’s cause of action. The defendant must negate the plaintiff’s possibility of recovery by offering summary judgment proof which shows that the defendant is entitled to prevail as a matter of law. Therefore, the defendant must show uncontrovertedly that the plaintiff cannot win the lawsuit because not only will he be unable to prove a recovery element in his cause of action but also that as to that element the defendant must prevail. Glenn v. Prestegord, 456 S.W.2d 901 (Tex.Sup.1970).

The appellant here has totally failed to prove that the negligence, if any, of the appellee Lo-Vaca was the proximate cause of his injuries. There is absolutely no evidence that Lo-Vaca failed to disclose the existence of the offering instrumentality to its landlord Edwin Wilde. Therefore, Lo-Vaca’s liability ceased upon acceptance of the land by Edwin Wilde and any cause of action that the appellant has, if any, must lie against the owner of the land, Edwin Wilde.

Appellants’ summary judgment proof consists of the sworn affidavits of Larry Beall, Jr. and Larry Beall, Sr. Taken in a light most favorable to these appellants, these affidavits state only that Lo-Vaca leased the property from Edwin Wilde and that Lo-Vaca constructed the cable across the road. They fail to state any basis upon which this Court can find Lo-Vaca liable after it returned the land to Edwin Wilde. Additionally, there is no conflicts between appellants’ affidavits and appellee Lo-Vaca’s summary judgment proof from which an inconsistency over a fact issue is raised. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). For the reasons set out above appellants’ first point of error is therefore overruled.

Appellants’ second point of error is also overruled because appellant has failed to meet the requirements of Tex.Rev.Civ. Stat.Ann. art. 1995 § 4 (1964). In order to maintain venue under § 4 of Art. 1995 there are three essential elements which must be established by the plaintiff. First, the plaintiff must show that one of the defendants resides in the county where suit is brought. Second, the plaintiff must allege a joint cause of action between a resident or a cause of action so intimately connected with the cause of action against the nonresident defendant that the two may be joined under the rules intended to avoid multiplicity of suits. Third, the plaintiff must show a cause of action against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936, opinion adopted); Socony Mobil Oil Co., Inc. v. Southwestern Bell Tel. Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). As was stated earlier in this opinion the appellant has not established a cause of action against the resident defendant Lo-Vaca. Therefore, the trial court was correct in granting the pleas of privilege of appellees Edwin Wilde, Walter Wilde, individually and as independent executor of the estate of Fenton Wilde and Burkie Harlow.

The judgment of the trial court is therefore affirmed.