William P. Glade, DBA Glade Construction Company v. Arthur E. Dietert Et Ux, 156 Tex. 382

Mr. Justice Culver delivered the opinion of the Court. Respondents, Dietert and wife, recovered against petitioner, Glade, for damages to real property. The Court of Civil Appeals affirmed. 286 S.W. 2d 955. The City of Fort Worth contracted with Glade to construct a storm sewer line through a residential

section according to plans and specifications prepared by the City. The City was to furnish the right of way and it staked out the area along a gully or ravine within which the line was to be constructed. Construction by Glade progressed according to plans and specifications and reached respondents’ property on July 24, 1953. Glade entered thereon and bulldozed out three trees within the area staked out by the City. Thereafter, within a matter of minutes he was ordered off the property by respondents and immediately moved his men and equipment therefrom.

The City already owned a 5-foot easement across the property of the defendants, but apparently by inadvertance had failed to acquire the necessary additional five feet of right of way. Then the City, having failed to negotiate an agreement with respondents, instituted eminent domain proceedings and on November 30, 1953, deposited the amount of the award made by the Commissioners in the registry of the court. Respondents filed this suit on December 9, 1953, alleging that at the time Glade entered upon their property he was a trespasser.

Glade pleaded in abatement his contractual relationship with the City of Fort Worth and that his entrance on the premises was at the direction of the City and constituted an appropriation of lands for public use.

Petitioner brings up the point that in the absence of any negligence or wanton or willful conduct where the contractor performs his contract under the directions of the municipality and in strict compliance with plans and specifications prepared and furnished to him in the construction of the necessary public improvements for public use, he cannot be held liable for damages to the real property of the owner. We conclude that the point is well taken.

Respondents rely on the general rule as stated in 20 A.L.R. p. 109: “A servant who, in carrying out the terms of his employment, or who, by obeying the command of his master, commits a trespass, is personally liable therefor, and cannot plead in defense the fact that his act was that of his master.” Among the cases cited in support of this proposition are Nunnelly v. Southern Iron Co., et al, 94 Tenn. 397, 29 S.W. 361, 28 L.R.A. 421 and Diamond et al v. Smith, 27 Texas Civ. App. 558, 66 S.W. 141. Both of these cases involved suits against private corporations and their agents.

Respondents further cite as authority for upholding the judgment against the contractor, Glade, City of Dallas v. Miller, 7 Texas Civ. App. 503, 27 S.W. 498; Wilson v. Newton County, Texas Civ. App., 269 S.W. 227; Schooler v. State, Texas Civ. App., 175 S.W. 2d 664; King v. Schaff, Texas Civ. App., 204 S.W. 1039; Black v. Baker, 130 Texas 454, 111 S.W. 2d 706. These cases, we think, do not bear directly on the point. In none is any judgment rendered against an agent of the governmental agency of the municipality nor is the liability of the agent discussed except in the case of Black v.

Baker where it was held that the mayor of the City acted without authority and not at the order or direction of the city council. Respondent contends that under the general rule of liability the contractor, regardless of negligence as an agent of the City, must be held to respond in damages and that the facts in this case do not constitute an exception to the general rule. We think the decided cases hold to the contrary and support the position of the petitioner.

The decisions generally hold that under a contract with a municipality for the construction of public works the contractor is liable to third parties only for negligence in the performance of the work and not for the result of the work performed according to the contract. Daly v. Earl W. Baker & Company, Okla. 271 Pac. 2d 1114; Tidewater Construction Company v. Manley et al., 194 Va. 836, 75 S.E. 2d 500; Marin Municipal Water District v. Peninsula Paving Co., 34 California App. 2d 647, 94 Pac. 2d 404; Yearsley v. W. A. Ross Const. Co., 309 U.S. 18, 60 Sup. Ct. 413, 84 L. Ed. 554; Panhandle Construction Co. v.

Shireman, Texas Civ. App., 80 S.W. 2d 461; Swilling v. Knight, Texas Civ. App., 205 S.W. 2d 421; Blair v. Waldo, Texas Civ. App., 245 S.W. 986. There would seem to be no more valid reason for imposing liability on the contractor for damages done to respondents’ land than to an adjoining landowner. But more to the point is the holding in Wood v. Foster & Creighton Co., 191 Tenn. 478, 235 S.W. 2d 1. The State of Tennessee agreed with the City of Chattanooga on a street-widening project, the City being obligated to secure easements for the right of way.

The state then contracted with the defendant to perform the widening work. The job was completed according to the contract and in compliance with the instructions of the state engineer. The City had failed to acquire the easement, either by purchase or condemnation proceedings.

The same court that wrote the Nunnelly opinion, supra, (1895) held that the contractor, not being guilty of negligence and having followed the directions of his superior in doing the work, was clearly not liable, but that the City authorized the improvement and, having accepted, would be answerable to the property owner for the damages which were occasioned by the improvement.

The court reasoned that as a practical matter, in the construction of public improvements, the contractor ought to be relieved from checking every order given him by the public authorities, for if he were required to verify all plans and specifications and not permitted to follow the orders of the engineering force of the state, the cost of public improvements would be immeasurably increased.

The court observed that the contractor’s work is not the engineering job of laying out the project but consists of doing what he is instructed to do and so long as he complies with the instructions in a workmanlike manner, and not negligently, he is not liable. In Newton Auto Salvage Co. v. Herrick, 203 Iowa 424, 212 N.W. 680, 681, the court absolves the contractor of all liability. In that case the City also contracted with the defendant to construct a sewer line.

The contractor was sued for damages by the landowner whose property lay in the path of the sewer line, but from whom the City had not acquired an easement. While in that case there was no actual entry by the contractor on the owner’s property the court held: “It was the duty of the city to provide right of way, and the defendant in bidding for the work was justified in assuming that the duty of the city in that regard would be observed.

It would be destructive of the liberty of municipalities to make public improvements, and of economy in construction, if contractors were required in making their bids to anticipate failure on the part of the municipality to perform such duties and provide against such contingencies as have developed in this case. “* * * It was the duty of the city to provide plans, and the defendant did not assume any responsibility for defects or insufficiency in the plans.

The defendant would be liable ordinarily only for his negligence in the performance of the work contracted for, and not for the result of work performed according to the contract.” cf. Muskatell v. Queen City Construction Co., 3 Wash. 2d 200, 100 Pac. 2d 380. We have found no case, nor has one been cited, holding a contractor liable under such circumstances. Respondents insist that both the City and Glade were trespassers in wrongfully entering upon their property, causing the damage complained of.

Conceding the correctness of this allegation, this would not render the contractor liable because until the property of respondent was taken and appropriated they occupied the position of an adjoining landowner. Essentially there is no difference so far as the liability of the contractor is concerned. A trespass was committed in Russell v. General Construction Co., Texas Civ. App., 59 S.W. 2d 1109, writ refused, also in Muskatell v. Queen City Construction Co.; Newton Auto Salvage Co. v. Herrick; Blair v. Waldo and others, supra.

To constitute a trespass “entry upon another’s land need not be in person, but may be made by causing or permitting a thing to cross the boundary of the premises.” 87 C.J.S., Trespass, Sec. 13. Suppose a contractor constructed a dam for the City according to plans and specifications and the lake thus formed overflowed onto property that the City had not acquired. A trespass is committed by the work of the contractor and the City is liable to the owner for the injury or for the land appropriated, but we think it could not be successfully contended that the contractor is liable in damages.

We perceive no material variance between the hypothetical facts stated and those of the instant case. To hold for the respondents under the facts here would compel the contractor to bear a portion of the cost of obtaining the right of way. The sole element of damage claimed in this suit against the contractor is the destruction of the three trees which were situated within the staked out right of way and which necessarily had to be removed. This right of way had been completely appropriated by the City under eminent domain process prior to the filing of this suit.

Respondents also rely on the decision in the City of Fort Worth v. Dietert, Texas Civ. App., 271 S.W. 2d 299, 301, writ refused, but on the point of liability of the contractor the court held only that an injunction against the prosecution of any suit is a harsh remedy and that “whether or not appellees have a valid claim for damages against Glade in the district court growing out of the entry of July 24th, is a matter for the determination of the district court after a hearing on the merits with all the facts disclosed.

If Glade loses in that contest, he has the right of appeal.” The court did not pass on or express any opinion as to the matter of Glade’s liability to respondents, and we are now passing upon that appeal.

Petitioner contends further that an affirmance of the trial court’s judgment in this case would allow the respondents double recovery for the reason that prior to the filing of this suit in the hearing before the special commissioners the respondents pointed out the damage caused by the removal of the trees and all other damages arising out of the construction and installation of the sewer and the damages were awarded by the commissioners, based on the evidence submitted.

The respondents answer that they took an appeal which is still pending in the county court and that appeal will be tried de novo without respect or reference to any evidence adduced before the commissioners. The Court of Civil Appeals in City of Fort Worth v. Dietert, supra, in denying the City’s application for an injunction to restrain the prosecution of this suit held that there were two separate causes of action, and that this case for damages resulting from the entry on July 24th was separate and independent of the condemnation suit filed by the City on November 30th.

Three courts of civil appeals cases were relied upon for that holding. City of San Antonio v. Fike, 211 S.W. 639; Ideal Laundry Co. v. City of Dallas, 64 S.W. 2d 801 and Gregory v. Gulf & I. R. Co., 21 Texas Civ. App., 598, 54 S.W. 617. In the first case (no writ history) it was held that the landowner could not recover damages for a sidewalk destroyed prior to the institution of the condemnation proceedings. The statement of facts does not reveal how long before the condemnation proceedings the City had torn up the sidewalk nor under what circumstances, or for what reason.

In our case the entry by Glade was in pursuance to the plan of public improvement already adopted and in process of construction. In the second case the landowner’s cross action for damages arising two years before the condemnation proceedings and growing out of a breach of contract was properly held irrelevant and dismissed. In the last the court correctly excluded from the inquiry in condemnation proceedings as to the value of the property sought to be condemned damages resulting from the failure of the railway company to build cattle guards and fence its right of way.

This ruling was correct because Art. 4459, Rev. Stat. 1895, limited the inquiry to “the value of the property sought to be condemned, and as to the damages which will be sustained by the owner thereof by reason of such condemnation, * * *.” See Vernon’s Ann. Civ. St. Art. 3265, Subd. 1. Regardless of anything said in City of Fort Worth v.

Dietert, supra, the law should not be so strictly construed as to preelude respondents from recovery in the county court, in the case now pending on appeal from the award of the commissioners, of all damages to which they may be entitled, including the diminishment of the land value caused by the removal of the trees. This conclusion is fortified by the provisions of Art. 3269, Vernon’s Ann. Civ. Statutes. Under this statute .if the Dieterts had filed their suit before the City undertook to condemn in the county court City could have intervened and exercised the right of eminent domain in the district court.

Brazos River Conservation & Reclamation District v. Costello, 135 Texas 307, 143 S.W. 2d 577, 130 A.L.R. 1220. As pointed out by the petitioners, the measure of damages is the same whether the issue is tried by special commissioners, in the county court on appeal or in the district court on cross-action or by intervention.

While technically it may be said that the entry by the contractor as the agent of the City constituted a separate cause of action against the City, yet, under the circumstances in such a case as this, to require the trial of two separate causes of action with double consumption of time and expense, when all of the damage actually was occasioned on account of the public improvement project and in pursuance thereto, would be a hardship on all parties, as well as useless and unnecessary.

The destruction of the trees is an element of value to be considered in determining the compensation owed by the City to the landowner for the acquisition of the easement across his property. The City is the only party liable for the right of way taken and used in the construction of a public improvement. The judgments of the trial court and the Court of Civil Appeals are reversed and the cause is dismissed without prejudice to right of respondents to present their claim for damages in the condemnation suit now pending. Opinion delivered October 24, 1956.