M. C. Winters, Inc. v. Eubank

456 S.W.2d 500, 1970 Tex. App. LEXIS 2421
CourtCourt of Appeals of Texas
DecidedMarch 17, 1970
DocketNo. 7968
StatusPublished

This text of 456 S.W.2d 500 (M. C. Winters, Inc. v. Eubank) 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
M. C. Winters, Inc. v. Eubank, 456 S.W.2d 500, 1970 Tex. App. LEXIS 2421 (Tex. Ct. App. 1970).

Opinion

CHADICK, Chief Justice.

Mrs. Helen Eubank was fatally injured the morning of February 3, 1968, in a head-on collision between the automobile she drove and a tractor-trailer rig operated by Jimmy Travis Trail. The collision occurred as Trail’s vehicle (8 feet wide, 50 feet in length) negotiated a detour on Interstate 30 near Rockwall, Texas, at a speed of approximately forty miles per hour.

The detour in the highway was required by a road construction contract the State of Texas, acting through the Highway Commission, made with Austin Bridge Company and M. C. Winters, Inc. Plans for highway facilities at the site of the collision were prepared by Forest and Cotton, Inc., consulting engineers. The plans called for the detour to begin with a 400 foot transition lane which would taper the two 12 foot wide east-bound lanes of the highway into one 12 foot wide lane, which would merge into and become the south lane and easterly traffic carrier of a two-way, east-west traffic artery. The 12 foot lane was to curve to the left at a 5 degree angle, then back to the right at another 5 degree angle, merging into the southmost of the two-way traffic lanes. The total length of the two 5 degree curves was designed to be approximately 450 feet, 225 feet for each curve.

The Forest and Cotton plans did not make use of a roadbed and drainage system which had been constructed for an earlier detour at or very near the site called for in the plans. Representatives of the contractors (M. C. Winters, Inc., and Austin Bridge Co., will be so referred to frequently hereafter) called this earlier [502]*502work and facilities to the attention of representatives of the State Highway Department, and after further conversations, negotiations and inspections, a detour at the designated point was laid out and built. As constructed, the transition lane rather than being 400 feet long was about 140 feet, and the curves in the detour, rather than being 450 feet overall, were slightly less than 200 feet in length, but the width of the detour lane at the point it joined the two-way traffic route was increased to 18 feet, instead of 12 feet as planned.

In response to special issue inquiry, the contractors were found negligent in seven separate respects, and each negligent act or omission was found to be the proximate cause of the collision. An appeal has been perfected. The appellants’ brief lists fifty-nine points of error, but laudably the appellants have restricted their argument and direct their efforts to support of these two propositions, to-wit:

“I.
“Appellants are not liable to Appellees, because the detour was constructed by Appellants in accordance with the instructions, directions and requirements of the State of Texas.
“II.
“Appellants are not liable to Appellees, because there is neither evidence nor sufficient evidence to support any of the jury’s liability findings against Appellants.”

There are two reasons why appellant’s Proposition I is not valid in this case. First, contractors admit and the jury found that appellants’ construction deviated from contract plans and specifications. Next, in performing the contract work the contractors were duty bound not to create a condition dangerous to road users. All parties appear to concede that the highway department’s representative charged with administering the contract acquiesced in the changes and deviations from plans that occurred in actual construction of the detour. The deviations were advantageous to the contractors costwise and the alterations were made as the result of contractor initiated suggestions; the principle and most obvious benefit that could accrue to the State of Texas or to highway users from the deviations was the betterment flowing from an increase of 6 feet in width of the detour lane at the point it emptied into the east-bound traffic route, and a slight “flatting out” of the curve angle.

The contract between appellant and the State of Texas provided a form of procedure for changes and alterations therein; it required changes to be approved in writing by the Commission’s engineer and endorsed on the plans or shown by supplement. The contract placed a limitation on the authority of the Highway Department’s inspectors; they were specifically deprived of authority to relieve the contractor from the obligation to perform the work in accordance with the requirements of the specifications, or to “revoke, alter, enlarge, or release any requirement * * * ”, or “to approve or accept any portion of work”, or “to issue instructions contrary to the plans and specifications”. Non-compliance with the contract changes provision and recog-nization that the detour was not constructed in accordance with contract plans is tacitly acknowledged, but the contractors proceed in this appeal on the theory that they are “immune from liability to Appellees because, in every respect which the jury has bound us to be negligent, we were acting as we were required to act by the State of Texas.” Their brief continues with the assertion that: “[I]t is a settled principle of Texas law that when a contractor builds a public improvement under contract with the State, and performs work thereunder in accordance with the requirements and directions of the representatives of the State, the contractor is not liable to persons who claim to be injured as a result of the work so performed. The reason is that [503]*503the act of performing the work in accordance with the contract is not the personal act of the contractor but is the act of the State of Texas.” This approach by the appellants leads into a consideration of the second reason the contractors’ Proposition I is deemed invalid.

To support the claim of immunity, the contractors cite McFadden v. Cecil Ruby Company, Inc., 422 S.W.2d 770 (Tex.Civ.App., Waco 1967, no writ); Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642 (Tex.1956); Wood v. Foster & Creighton, 191 Tenn. 478, 235 S.W.2d 1 (1950); Russell v. General Construction Co., 59 S.W.2d 1109 (Tex.Civ.App. Eastland 1933, writ ref’d) ; City of Fort Worth v. Miller, 336 S.W.2d 296 (Tex.Civ.App. Fort Worth 1960, writ ref’d, n. r. e.); “Right of Contractor with Federal, State or Local Public Body to Latter’s Immunity From Tort Liability”, A.L.R.3d, 382, 385 (1966).

The cases cited, excepting from this comment McFadden v. Cecil Ruby Company, Inc., supra, are not decisive because they differ radically from the present case both in the nature of the basic facts and the cause of action plead or proven. In each instance the contractor performed in accordance with the terms of the contract and in the manner directed by representatives of a governmental agency and incidentally trespassed upon adjacent land of a third party, or created a condition that resulted in a trespass thereon. The rights of a person using an open public road and the tort liability of a contractor to the road user are not considered in these cases.

This extract from the excepted case, McFadden v. Cecil Ruby Company, Inc., supra, suggests the nature of the case and the defense interposed, to-wit:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Fort Worth v. Miller
336 S.W.2d 296 (Court of Appeals of Texas, 1960)
Strakos v. Gehring
360 S.W.2d 787 (Texas Supreme Court, 1962)
Glade v. Dietert
295 S.W.2d 642 (Texas Supreme Court, 1956)
John F. Buckner & Sons v. Allen
289 S.W.2d 387 (Court of Appeals of Texas, 1956)
Wood v. Foster & Creighton Co.
235 S.W.2d 1 (Tennessee Supreme Court, 1950)
Buchanan v. Rose
159 S.W.2d 109 (Texas Supreme Court, 1942)
Russell v. General Const. Co.
59 S.W.2d 1109 (Court of Appeals of Texas, 1933)
McFadden v. Cecil Ruby Co.
422 S.W.2d 770 (Court of Appeals of Texas, 1967)

Cite This Page — Counsel Stack

Bluebook (online)
456 S.W.2d 500, 1970 Tex. App. LEXIS 2421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/m-c-winters-inc-v-eubank-texapp-1970.