Beall v. Lo-Vaca Gathering Co.

532 S.W.2d 362, 1975 Tex. App. LEXIS 3134
CourtCourt of Appeals of Texas
DecidedOctober 16, 1975
Docket980
StatusPublished
Cited by18 cases

This text of 532 S.W.2d 362 (Beall v. Lo-Vaca Gathering Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beall v. Lo-Vaca Gathering Co., 532 S.W.2d 362, 1975 Tex. App. LEXIS 3134 (Tex. Ct. App. 1975).

Opinions

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 [364]*364Edwin 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 [365]*365possession 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:

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Beall v. Lo-Vaca Gathering Co.
532 S.W.2d 362 (Court of Appeals of Texas, 1975)

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Bluebook (online)
532 S.W.2d 362, 1975 Tex. App. LEXIS 3134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beall-v-lo-vaca-gathering-co-texapp-1975.