author: NORVELL, Justice.

text:
    Roman HERNANDEZ, Petitioner, v. F. W. HELDENFELS et al., Respondents.
    No. A-9623.
    Supreme Court of Texas.
    Nov. 27, 1963.
    Rehearing Denied Jan. 8, 1964.

      Lyman & Sudduth, McDonald & Spann, Corpus Christi, for petitioner.
    Kleberg, Mobley, Lockett & Weil, Elmer H. Theis, Keys, Russell, Keys & Watson, Corpus Christi, for respondent.
   NORVELL, Justice.

Roman Hernandez recovered a judgment against Heldenfels Brothers, a partnership, based upon personal injuries suffered by him when he was struck by a truck loaded with asphalt. The Court of Civil Appeals reversed upon the ground that Hernandez was a mere licensee upon the premises where he was injured and that Heldenfels, as the “occupier” of such premises was not guilty of a breach of duty owed to Hernandez. Tex.Civ.App., 366 S.W.2d 641. The premises were owned by Southwestern Oil & Refining Company who was the employer of Hernandez. At the time of injury, Hernandez and another employee, Martinez, were on the company’s property going from one place to another within the company’s Plant No. 2 under express orders of a superior in the company’s organization. In our opinion, Hernandez as a servant of the owner of the property going from one place to another within the confines of the plant was not a licensee of Heldenfels. His legal status was akin to that of an invitee in that the occupancy of Heldenfels was not of such a nature that employees of Southwestern Oil & Refining Company had no right to be upon the premises except by leave of Heldenfels.

The following is a brief summary of the pertinent facts:

At approximately 7:00 a. m. on the morning of April 17, 1953, Hernandez entered the main gate of the company’s Plant No. 2, and walked along a private driveway to a quonset hut or warehouse where he reported for work. This quonset hut was situated approximately 1000 feet from the gate. This driveway was being rebuilt by Texas Engineering Construction Company, Inc. under a contract with Southwestern Oil & Refining Company. Texas Engineering had constructed concrete curbs and gutters and installed a caliche roadbed. Heldenfels as a subcontractor under an oral agreement, had begun to lay the asphalt topping on this road. A barrier to stop vehicular traffic during the topping operation had been placed at the main entrance to the plant and the road area was occupied in part by an asphalt spreader and trucks carrying asphalt to the spreader. It appears, however, that Southwestern’s employees continued to walk on and along the roadway during the road rebuilding operations in order to get from the main gate to specific areas on the plant property.

Upon reporting for work, Hernandez and Martinez received directions from their foreman to report to Plant No. 1 which was nonadjacent and some blocks distant from Plant No. 2. They were instructed to return to the main gate for transportation to said Plant No. 1. The foreman told them to walk along the north or left side of the private roadway as Heldenfels had laid a second coat of asphalt along the south side the day before which would probably be soft and sticky. Hernandez was struck and Martinez brushed by an asphalt truck at a point approximately 300 feet east of the quonset hut as they were walking toward the main entrance gate. Near the area where the accident occurred, some large overhead fans had been installed which were in operation as a part of the plant's equipment. These fans were noisy and probably made it difficult to hear trucks operating in the area. The asphalt spreader was near the main entrance to the plant and Hernandez was struck by a dump truck which was traveling in reverse along the north or left-hand side of the road (from Hernandez’ standpoint), toward the asphalt spreader for the purpose of loading the spreader with asphalt.

All defendants except Heldenfels' were absolved of liability by the jury’s findings. As to Heldenfels Brothers, the jury found that they were in control of the hauling, spreading and rolling of asphalt upon the roadway; that they were negligent in failing to provide an employee or watchman “to see to it that the area was clear of pedestrians behind the truck which backed over Roman Hernandez” and that they were negligent in failing to give a visual signal “to warn a pedestrian situated as was Roman Hernandez.” Accompanying proximate cause issues were also answered in Hernandez’ favor.

The jury found against Heldenfels upon issues submitting the defenses of voluntary exposure to risk and contributory negligence. Judgment on the verdict was rendered in favor of Hernandez for the amount of damages found by the jury, namely, $20,500.00.

It has been stated that the only duty owed by an owner of property toward a licensee upon such property is the duty not to injure such licensee wilfully, wantonly or through gross negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073. This rule has been stated in somewhat different language and it is applicable to an occupier of land, who may not be an owner but-is entitled to exclusive control thereof. See, Bustillos v. Southwestern Portland Cement Co., Tex.Com.App., 211 S.W. 929; Holt v. Fuller Cotton Oil Co., Tex.Civ.App., 175 S.W.2d 272, wr. ref.; Gonzalez v. Broussard, Tex.Civ.App., 274 S.W.2d 737, ref. n. r. e.; Schroeder v. Texas & Pacific Ry. Co., Tex.Civ.App., 243 S.W.2d 261, no wr. hist. Sections 331 and 342, American Law Institute’s Restatement of the Law of Torts; 38 Am.Jur. Negligence, §§ 104 and 105; 65 C J.S. Negligence §§ 32 et seq.

Under the facts of this case, however, we are unable to agree with the Court of Civil Appeals that Plernandez was a mere licensee. The thesis of the appellate court is that as Heldenfels was the occupier of the premises — the roadway in question— and Hernandez had no business with Hel-denfels and was not engaged in furthering Heldenfels’ interest in any way, he was necessarily a licensee. Had Heldenfels been entitled as a matter of right to an exclusive possession of the premises as against the owner, this theory might be tenable. However, as we view the record, there is no evidence that Southwestern, as the owner, granted to Texas Engineering or to Helden-fels an exclusive right. Heldenfels Brothers had the right to occupy such portions of the roadway as were necessary for them to use in carrying out the obligations which they had assumed as a subcontractor, but they did not have the right to bar the owner and its employees therefrom. In order to reach the quonset hut where the time clock was located and where he reported to work, Hernandez walked along the roadway. Upon returning to the main entrance from the quonset hut, as directed by his foreman, he was walking on the roadway where his superior told him to walk. His position on the roadway at the time he was injured was not due to any leave of Heldenfels but under right of his employer, — the owner of the premises. In our opinion, there is no evidence to suggest that Heldenfels’ use of the roadway for the purpose of placing an asphalt top thereon was intended to preclude a use thereof by the owner’s employees in going from one section of the plant to another. Both Heldenfels and Hernandez were- using the roadway because the interests of Southwestern as the owner required such use. Both, in a sense, were invitees of the owner and the fact that the roadway was a private way does not vary the legal consequences of’ substandard action from that encountered when two persons are equally entitled to make use of a public road. Each owes a duty to prevent injury to the other through negligence. The case was submitted to the jury upon issues of negligence and contributory negligence and in our opinion such submission was correct.

Respondent cites a number of cases which hold that when an employee of the owner of premises goes upon a particular portion of such premises, which are under the control of a contractor for the purpose of erecting structures thereon or making repairs thereto, such person is not an invitee of the contractor. In most of these cases the purpose for which the injured person went upon the portion of the premises occupied by the contractor was regarded by the courts as being one which was personal to the injured party rather than in furtherance of his employer’s interests.

The facts in the case of Gile v. J. W. Bishop Co., 184 Mass. 413, 68 N.E. 837, are similar to those presented by the present record. The defendant was engaged in the alteration of structure upon the premises of the City Manufacturing Company which continued with its business operations during the construction period. The plaintiff was the employee of the City Manufacturing Company and lawfully upon the premises in furtherance of the business of the manufacturing company when injured. The defendant contended that under the circumstances the plaintiff was a mere licensee and that the defendant owed him no duty, except to refrain from wilfully or wantonly injuring him. The Supreme Judicial Court of Massachusetts stated in its opinion that:

“The defendant was not in exclusive occupation of the yard and grounds of the City Manufacturing Company. It used them so far as was necessary for the convenient performance of the work which it had undertaken, and at the same time the employés of the company were expected to use them so far as was necessary or proper in the prosecution of the business of that company. The defendant was therefore bound to exercise reasonable care in reference to these employés who were rightfully there.”

In Kitchen v. Riter-Conley Mfg. Co., 207 Pa. 558, 56 A. 1083, it appeared that according to a jury verdict Kitchen, an employee of the Carnegie Steel Company, was injured through the negligence of employees of the Riter-Conley Manufacturing Company. It was urged upon appeal that the jury should have been instructed that Kitchen was a trespasser when injured. The particular work being done by Riter-Conley at the time of Kitchen’s injury was the construction of an inclined railway to carry ore from the bins to the top of a blast furnace. This was a part of the work being done by Riter-Conley for the Carnegie Steel Company in enlarging its blast furnaces. Kitchen was conveying a message from his employer, the Carnegie Steel Company, to the Superintendent of Riter-Conley. However, the circumstance that the receiving of the message may have been in furtherance of Riter-Conley’s business was not given as the principal basis of the Pennsylvania Supreme Court’s decision. The Court said:

“The distinction between the relative rights of a trespasser and a licensee is not important, in view of the facts in this case. The defendant was not the owner of the premises where the construction work was being done. ' It was only entitled to such occupancy and use as might be necessary to enable it to perform its contract with the owner. No one who did not interfere with its work or come within the range of its operations could, in any sense of the word, be considered a trespasser, in so far as it was concerned. The plaintiff’s employer was the owner of the premises where the accident occurred, so that no permission or license from the defendant company was required to entitle the plaintiff to be there, so long as he did not interfere with the construction work, or wander heedlessly into dangerous proximity to it. The evidence shows that the plaintiff was hurt while standing or walking upon a paved walk or passageway over which people had been passing frequently. He was not struck directly by the falling portion of the inclined railway, but by some timbers that were carried down as a result of the first crash. It does not appear that he had any reason to suppose he was in danger at the spot where he was hurt. If he was there in the performance of his duty, then he was entitled to protection from dangers arising from the negligence of defendant. The precaution which the defendant company was bound to take was not especially to protect the plaintiff, but it was bound to include within the scope of its forethought, and, so far as reasonable prudence would dictate, to guard against, injury to any one who might lawfully and properly be using the premises where the work of construction which they had in charge was in progress.”

The rule announced in the Massachusetts and Pennsylvania cases above discussed seems to be supported by the weight of authority as well as the better reasoning. In a monograph covering the subject of “Personal liability of contractor in respect to injuries sustained by persons other than the contractee during the progress of stipulated work,” appearing in 38 A.L.R. 406, it is said under the subhead, “Liability of contractor to servants of principal employer,” (p. 455) that:

“For injuries occasioned to a servant of the principal employer by negligence on the part of the contractor which produces abnormally dangerous conditions upon premises which remain in the possession of the principal employer while the stipulated work is in progress, the contractor is ordinarily liable. Whether, under such circumstances, the contractor is entitled to avail himself of the defense that the injured person was, in respect of the portion of the premises where his injury was received, a mere licensee, is a question to be determined with reference to the particular facts involved.”

One of the controlling facts in cases such as this is the nature of the contractor’s possession. If it be conclusive as against the owner, the owner’s employees may be trespassers or licensees upon the property depending upon whether their entry was unlawful or permissive and many authorities cited by the respondent so hold. It may also be recognized that the entire premises need not be considered as a unit for a person may be a trespasser or licensee as to a certain portion only. See, Allen v. Jim Ruby Construction Company, 138 Cal.App.2d 428, 291 P.2d 991; Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598. In the present case the roadway connected the main gate of Southwestern’s Plant No. 2 and the quon-set hut which served as. the place where its employees reported for work. An owner of property, absent some contractual arrangement to the contrary, has the right of access to and user of his property. It was under this right that Hernandez was instructed to make use of the roadway by his employer. At the time of injury, he was not using the roadway by leave or license of Heldenfels. It is this circumstance that primarily distinguishes this case from those relied upon by the Court of Civil Appeals.

If we consider that Hernandez occupied a legal position similar to an invitee, it cannot be said that the dangerous instrumentality which resulted in Hernandez’ injury was open and obvious within the meaning of that phrase as used in the “invitee” cases. Generally the conditions referred to are static, such as holes and pits in the ground, broken stairwayr and the like. If such “conditions” be movable in part, such movement is generally rigidly circumscribed and easily predictable. McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940. In the present case, the instrumentality which caused injury was a loaded asphalt truck, moving in reverse and approaching Hernandez from the rear. The fact that Hernandez or anyone else could have observed moving trucks upon the roadway does not present an open and obvious condition which could be related to his injury. Cf. Hall v. Medical Building of Houston, 151 Tex. 425, 251 S.W.2d 497; Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 209 A.L.R.2d 853.

It is our opinion that the jury’s findings of negligence on the part of Heldenfels, as well as the findings that Hernandez was not contributorily negligent, have support in the evidence. The same is true of the finding that Hernandez did not voluntarily expose himself to the risk which resulted in his injury.

We are further of the opinion that none of the matters raised in the brief of respondent as appellant in the Court of Civil Appeals and not passed upon by that court call for a reversal of the trial court’s judgment. Many of these points are inferentially passed upon by what has been heretofore said. Others relate to the admission of allegedly improper testimony. The record of the testimony in this case is unnecessarily long. Much of it is repetitious in nature. Some inadmissible testimony was received, but nothing has been pointed out which demonstrates that the receipt of such evidence probably caused the entry of an improper judgment in the case. Rule 503, Texas Rules of Civil Procedure.

It is also urged that the trial court erred in failing to submit an issue of unavoidable accident. It is said that a jury could infer that Hernandez’ injuries resulted from the noise of the plant machinery and the overhead fans heretofore mentioned rather than from the negligence of one or more of the parties. It appears that respondents were familiar with the noisy conditions in the plant. Their supervisor and employees had worked for over a day in the noise area. In our opinion, the question of unavoidable accident is not in this case. Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790; Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407.

Respondents, as appellants in the Court of Civil Appeals, presented a number of points complaining of various rulings and actions of the trial court relating to the deposition of Hernandez taken under an agreement of the parties which permitted Hernandez “to make any necessary correction therein in accordance with the rules of civil procedure, i. e., a single line will be drawn through any words to be deleted and the witness in his own handwriting (will insert) any words substituted therefor or added thereto.” See, Rule 209, Texas Rules of Civil Procedure.

The circumstances concerning the taking of this deposition are unusual to say the least. On September 15, 1955, four months after the suit was filed, Hernandez’ oral deposition was taken and the questions and answers transcribed upon 118 typewritten pages. Hernandez, however, did not immediately sign the deposition. When ordered to do so by the trial judge he signed the same but submitted an affidavit in connection therewith stating in substance that he was confused as to some of the questions and answers. This occurred on December 2, 1958, over three years after the deposition was taken. On January 6, 1959, the judge ordered the affidavit stricken but allowed Hernandez to make line by line changes in his answers contained in the deposition. Hernandez made over a hundred changes in his, deposition answers and referred to a statement which was not attached to the deposition as giving his reasons for making such changes. Upon the trial, the presiding judge allowed both the original answers and the corrected answers to be read to the jury. He also permitted a portion of the affidavit theretofore stricken to be read to the jury, apparently upon the theory that the statement purported to explain the changes made by Hernandez. It further appears that Hernandez was treated for a mental condition diagnosed as schizophrenia. He was in a state hospital at the time of trial and respondents filed a second motion for a continuance in the case supported by an affidavit of a physician stating that in his opinion Hernandez’ mental condition in a month’s time would be such that he could appear and testify personally. Respondents argue that in view of the numerous changes made in the deposition by Hernandez, he should have been made available for cross-examination if possible and that consequently the refusal of the court to grant the second continuance constituted an abuse of discretion.

In' our opinion none of the complaints with reference to the deposition and the refusal to grant a continuance present a case of reversible error. Despite the over-lengthy statement of evidence contained in the record the essential facts stand out reasonably clear. .Upon his way back to the main gate, Hernandez was accompanied by Ramon Martinez, whose testimony in the main supported' Hernandez’ deposition testimony as to how the accident occurred. Both testified that they looked back at times to see if trucks were approaching and failed to see any. The main complaint of respondents as to Hernandez’ change in the deposition seems to be that he changed his answer to the questions as to whether he knew trucks were “backing up” on the roadway from “yes” to “I do not know.” Both answers were read to the jury and despite the admitted irregularity concerning the correcting of the deposition and the admission of the statement with reference thereto, we are unable to say that such matters probably caused the rendition of an improper judgment. Rule 503.

The matter of granting a continuance rests within the sound discretion of the trial judge. Here we are concerned with a- second motion in a long-delayed case. The trial court was confronted with a situation involving a litigant laboring under a mental disability. In deciding that a trial of the cause would not be prejudicial to the respondents, he did not abuse the discretion vested in him by law. The factual situation disclosed in the opinion rendered in Sears, Roebuck & Co. v. Jones, Tex.Civ.App., 303 S.W.2d 434, ref. n. r. e. bears some resemblance to that presented in this case and it was there held that the court did not abuse its discretion in refusing a continuance.

Being of the opinion that the Court of Civil Appeals erred in reversing the judgment of the trial court and being further of the opinion that none of the points of error presented in respondents’ brief in the Court of Civil Appeals and not considered by that court call for a reversal of the judgment of the trial court, it is accordingly ordered that the judgment of the Court of Civil Appeals be reversed and that of the trial court affirmed.

ON MOTION FOR REHEARING

In our original opinion we stated that, “The foreman told them (Hernandez and Martinez) to walk along the north or left side of the private roadway as Heldenfels had laid a second coat of asphalt along the south side the day before which would probably be soft and sticky.” Respondents question the accuracy of the statement that the foreman told the workmen to walk on the north side of the road. It is quite apparent from the record that the foreman assumed that Martinez and Hernandez would use the roadway as it was the most direct way from the quonset hut to the main gate. While he did not say in so many words, “walk on the north side,” this direction can be reasonably, 'if not necessarily, inferred from the direction to stay off the portion of the road which had been covered by fresh asphalt. It was possible for Hernandez to have reached the gate by not going upon the roadway at all, but the jury found that he did not voluntarily expose himself to injury in making use of the road. The dominant basis of our decision is that there was no showing that Heldenfels Brothers had exclusive possession of the roadway insofar as Southwestern Oil & Refining Company (the owner of the premises) and its employees were concerned. There is nothing contained in respondents’ motion for rehearing which persuades us that this basic holding is incorrect.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: HAMILTON, Justice. SMITH, Justice NORVELL, Justice

license: Public Domain

text:
    The STATE of Texas, Petitioner, v. L. C. TRAYLOR et al., Independent Executors of the Estate of M. G. Perry, Deceased, Respondents.
    No. A-9403.
    Supreme Court of Texas.
    Dec. 11, 1963.
    Waggoner Carr, Atty. Gen. of Texas, Ben M. Harrison and J. Arthur Sandlin Asst. Attys. Gen., Austin, for petitioner.
    Matthews, Nowlin, Macfarlane & Barrett, Herbert D. Kelleher, San Antonio, for respondent.
   HAMILTON, Justice.

This is an appeal from the judgment of the District Court of Bexar County approving the final account of independent executors and directing distribution of assets of testator’s estate.

The will of M. G. Perry named his wife, Johnnye D. Perry, and two others as independent executors and devised to them as trustees one-half of all property, separate and community, on hand at his death in trust for Mrs. Perry for life, remainder to a charitable foundation created by the Perrys during the life of Mr. Perry. The other half he devised to the executors in trust for the foundation, that trust also to terminate on Mrs. Perry’s death.

The testator having attempted to dispose of all the community property, Mrs. Perry elected not to take under his will, but to take her one-half of the community property.

The independent executors filed their final account in the probate court containing an inventory of all property received by them during the administration of the estate, including all the community estate of the testator and his wife, which is shown to have a value in excess of two million dollars. The account contained recitations concerning the acquisition and nature of certain properties on hand which showed that a considerable amount of the estate was the separate property of the testator; that because of the difficulty and expense of attempting to establish and assess the value of the very large community claims for reimbursement that would exist against certain real property should it be treated as separate property of the testator, they had treated all property as community property in handling the estate. The separate property of the testator consisted of land, royalties, oil company stock and income from separate property during administration of the estate. The account asserted that the best interests of the estate would be served by treating the land as community properties and dividing them equally between Mrs. Perry and the testamentary trustees; and further, that the remaining assets held by them in community with the survivor should be divided in kind. The independent executors requested that the account be approved and that an order be entered directing partition and distribution to the persons entitled to receive the property.

The Attorney General was made a party to the proceeding under Article 4412a, Vernon’s Ann.Civ.St., and he objected to the account on the ground that certain items of property listed in the account as community property were actually separate property and that they should be set over in full to the trustees of the testamentary trust.

The probate court approved the account filed by the independent executors and ordered the property on hand to be divided equally between Mrs. Perry and the testamentary trustees. The Attorney General appealed to the District Court, which also approved the final account and ordered the property distributed equally. The Attorney General excepted to the judgment of the District Court and appealed. The Court of Civil Appeals has affirmed. 362 S.W.2d 175.

The Attorney General assigns error on the ground that the undisputed evidence shows that a very substantial portion of the estate was the separate property of the testator, yet the executors and the courts below have treated it as community property and ordered an equal division between the widow and the testamentary trustees. Therefore, the Attorney General seeks a remand of the case for a further development of the facts. The Attorney General also asserts that a question of title to realty is involved, hence neither the probate court nor the District Court on appeal had jurisdiction and the case should be dismissed.

In order to properly understand this case, it is necessary that the type of proceeding be carefully defined. Furthermore, it must be noted that the probate court has only that jurisdiction conferred upon it -by the Probate Code.

At the outset, attention should be called to § 145 of the Probate Code, V.A.T.S., which provides as follows:

“ * * * When such will has been probated, and the inventory, appraisement, and list aforesaid has been filed by the executor and approved by the court, as long as the estate is represented by an independent executor, further action of any nature shall not he had in the court except where this Code specifically and explicitly provides for some action in the court.” (Emphasis added.)

Hence, the ordinary method of presentment and payment of claims against an estate under independent administration does not apply since such method is not made specifically applicable to an independent executor.

The authority for the action filed by the respondents is obviously § 150, Probate Code, which is made explicitly applicable to an independent executor. That section provides as follows:

“§ 150. Partition and Distribution
“If the will does not distribute the entire estate of the testator, or provide a means for partition of said estate, the independent executor may file his final account in the court in which the will was probated, and ask for partition and distribution of the estate; and the same shall be partitioned and distributed in the manner provided for the partition and distribution of estates administered under the direction of the court.”

Estates administered under the direction of the court are partitioned and distributed under § 373 et seq. of the Probate Code.

Section 377, Probate Code, provides what facts are to be ascertained at the hearing upon application for partition and distribution. They are as follows:

* * *
“(a) The residue of the estate subject to partition and distribution, which shall be ascertained by deducting from the entire assets of such estate remaining on hand the amount of all debts and expenses of every kind which have been approved or established by judgment, but not paid, or which may yet be established by judgment, and also the probable future expenses of administration.
“(b) The persons who are by law en- • titled to partition and distribution, and their respective shares.
“(c) * * (Emphasis added.)

After making the above findings, the probate court should make a decree under § 378, Probate Code. If the probate court is of the opinion that the estate should be partitioned, it should appoint three commissioners under § 380, Probate Code, who would make a fair, just and impartial partition and distribution of the property.

The judgment of the probate court purports to recognize the existence of the community claim for reimbursement and sets over one-half of the separate property of the testator to the community survivor to satisfy such claim. In order to be authorized by the Probate Code, such claim must have been approved or established by judgment. The community claim for reimbursement has not been established by a prior judgment, hence the question is whether it has been approved. It is not explicitly asserted by respondents that the community claim has been approved by the independent executors, but it is implicit in the relief they are seeking.

The power of an independent executor to approve claims against an estate of a decedent is limited in certain situations affecting charitable trusts by Art. 4412a, Sec. 5, Vernon’s Annotated Texas Civil Statutes. That statute applies to any “dispute, claim or controversy of a character described in Section 2 of this Article, and affecting a charitable trust.” Section 2 of Article 4412a applies to any suit or judicial proceeding having certain objects. However, Section 5 purports to apply to compromises, etc., “with or without the intervention or approval of a court.” (Emphasis added.) Hence Section 5 would apply to a compromise of claims out of court in the type of situation listed in Section 2, specifically Section 2(a):

“a. To terminate a charitable trust or to distribute its assets to other than charitable donees, or” (Emphasis added.)

Is the approval of the independent executors of the community claim for reimbursement on the basis of a compromise or settlement? The independent executors state in their final account that because of the difficulty and expense of attempting to establish and assess the value of the very large community claims for reimbursement should the property be treated as separate property of the testator, they have treated such property as community property in handling the estate. In other words, the independent executors are approving the surviving wife’s share of the community claim for reimbursement in an amount equal to one-half the value of the testator’s separate property. There was no showing that the claim was definite or certain, but the evidence shows the very opposite. By the very assertions of the independent executors’ final account, the community claim was not approved on the facts but was a compromise between what the facts might actually show upon investigation and what the difficulty and expense of establishing those facts might be. Such a compromise is not valid or binding without approval of the Attorney General under Article 4412a, Sec-' tion 5.

The Probate Court could not consider the community claim as established since not based on a judgment or approved. Hence, Mrs. Perry stands in the shoes of a creditor asserting a claim against a decedent’s estate under independent administration which the independent executors have not approved. In a case involving a claim against an estate under independent administration, this court stated in Rowland v. Moore, 141 Tex. 469, 174 S.W.2d 248 (1943) :

“ * * * The district court or county court, and not the probate court, has jurisdiction of all claims against the estate, as in any other cause of action not regulated by a special statute. * * *»»

Nowhere in the Probate Code is the probate court given jurisdiction to adjudicate a claim against an estate being administered independently. There being no claim approved or established by judgment in favor of the community survivor, the probate court had no basis on which to award one-half of the testator’s separate property to Mrs. Perry. Therefore, that court and the District Court were in error in awarding one-half of the property of the testator to the widow. The Attorney General was correct in his contention that the separate property of the testator should be set over in full to the testamentary trustees of the charitable trust, subject, of course, to debts owed by the estate. Mrs. Perry’s remedy to establish her claim where the Attorney General withholds his approval of its compromise is not in the probate court, but it is in the District Court in an original action against the independent executors, joining the Attorney General as a necessary party under Article 4412a, Section 2.

The judgments of the Court of Civil Appeals and the District Court are reversed and the cause is remanded to the District Court with directions to deny the relief sought by respondents without prejudice to their right to proceed in accordance with this opinion, and to certify its judgment to the probate court for observance.

GRIFFIN, NORVELL, WALKER and GREENHILL, JJ., dissenting.

SMITH, Justice

(concurring).

I agree with the majority holding on the jurisdictional question. However, I contend that the Probate Court was without jurisdiction for an additional reason. The majority does not reach this additional ground. The case involves a title question. The State filed in the District Court a plea to the jurisdiction of the Probate Court on the ground that certain property belonging to the estate was the separate property of M. G. Perry, deceased, rather than the community estate. The plea to the jurisdiction points out that the assertion by the executors that such property is community property and subject to the claim of Mrs. Perry raises a title question affecting real property located within the State which the Probate Court has no jurisdiction to determine.

Because of the fact that the State did not file its plea to the jurisdiction until the cause reached the District Court on appeal, the respondents insist that the plea to the jurisdiction has been waived. I cannot agree. The pleadings in the Probate Court clearly show that an issue was presented requiring the trial of title to land to determine whether such land was separate or community. The opposition of the Attorney General of Texas to the final account describes certain specific items of real property and alleges that such items “ * * * listed and claimed by the executors herein in the final account as community property are in fact separate property belonging to the Estate of M. G. Perry, deceased.” The Attorney General pleaded that the separate property should be set over in full to the trustees of the testamentary trust.

The question of the jurisdiction of the Probate Court was raised by proper assignments of error in the Court of Civil Appeals. However, this being a question of jurisdiction which presents fundamental error, the question can be considered on appeal in the absence of an assignment. See Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404, (1942) ; McCarty v. Duncan, Tex.Civ.App., 330 S.W.2d 899, (1960), no wr. hist.

. The Attorney General has taken the position from the beginning of this case in the Probate Court that the final account should not be approved because a number of items described in that account were separate property. It has been pointed out that the facts show that it would be unfair to take the separate property of the deceased and divide it up fifty-fifty as if it were community. Unquestionably, a substantial portion of the property involved is separate property. The property designated as the “Big Farm,” (2480 acres) was acquired by M. G. Perry before marriage. The status of this property is fixed as separate property under the “inception of title” rule. See Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943). So long as separate property can be definitely traced and identified it remains separate property regardless of the fact that the separate property may undergo mutations and changes. See Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676 (1953).

It may well be that since some of the property was purchased on credit before marriage, the community estate would be entitled to reimbursement as a matter of equity for such sums as are shown to have been applied on the prenuptial debts. This, too, is a question involving title and the final determination of the rights of the respective parties is to be determined upon equitable principles as to the amount of reimbursement. See Norris v. Vaughan, supra; Col-den v. Alexander, supra. As was said in Colden v. Alexander, a claim for reimbursement would not create an equitable claim, unless it is shown that the expenditures by the community are greater than the benefits received. The Probate Court definitely cannot give complete relief. Where the Probate Court cannot give complete relief the District Court has jurisdiction. See Lauraine v. Ashe, 109 Tex. 69, 191 S.W. 563, 196 S.W. 501 (1917); Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980 (1933).

The judgment in this cause should be reversed and the cause either dismissed without prejudice to the rights of the respondents to file an original suit in the District Court to determine the title to the property, or the cause should be remanded to the District Court for trial in accordance with the views herein expressed. Under no circumstances did the Probate Court have jurisdiction to lump the separate and community property together and order the same equally divided.

Respondents have gone into the Probate Court under Section 150 of the Probate Code requesting that that Court assume jurisdiction and decree to whom the estate should be distributed. They have urged that everything ought- to be divided fifty-fifty, and have stated that treating the property as being all community would be agreeable both to the executors and to Mrs. Perry. They do not say that such an arrangement would be agreeable to the Foundation. Even if they did the agreement between the executors and Mrs. Perry was completely void under Article 4412a, Vernon’s Annotated Civil Statutes. While I am in agreement with the Court in its holdings, I insist that the only law question in the case is one of title, hence neither the Probate Court nor the District Court on appeal had jurisdiction. Under the law, M. G. Perry was entitled to will all of his separate property, owned by him before marriage, plus one-half of his community property. Mrs. Perry seeks, in the Probate Court, to thwart the will of her late husband insofar as the separate property is concerned and to have all of the property declared community property. It may be very difficult, if this case is tried according to law, for the respondents to discharge their burden of establishing the credits, if any, to which the community estate is entitled. However, the burden must be discharged in a court of competent jurisdiction. Mrs. Perry elected not to take under her husband’s will. She cannot establish that the property is all community by merely filing a final account and agreeing to treat all the property as community. In this connection, it should be pointed out that the Foundation Trustees did not agree in the waiver they signed to the correctness of the final account, they only agreed not to contest the account.

NORVELL, Justice

(dissenting).

The Court has held that a wife’s right to reimbursement for her share of contributions to the retirement of the purchase price of the separate property of the husband, as well as improvements thereon, must be established as would an ordinary claim in a suit against the independent executors of the husband’s estate. It has further held that the Attorney General is a necessary party to such suit if the will of the deceased husband provides for a charitable trust. To me, an undesirable result has been reached, and this is demonstrated by the facts of this case which relate to a marriage of some thirty-four years standing and encompass innumerable transactions between husband and wife, and with third persons. In my opinion, such result is neither required nor supported by any legislative action or prior decision of this Court. I am also persuaded that this Court’s decision is not supported by the points of error contained in the application for writ of error.

At the outset, I would emphasize that a suit to determine if an allocation of property between a charitable trust created by will and a nontaking wife is just and reasonable is quite different from the establishment of a claim in the district court which places upon the wife, who exercises her legal right to claim her own property, the burden of minute accounting for income, labor expended and enhancement of property values over a long period of years. An over-strict requirement in this situation may serve to defeat the ends of justice and cause the wife to hesitate in claiming property which belongs to her when such choice may well mean long drawn out litigation with the Attorney General and consequent wasting of her estate, as well as that held by the charitable trust created by her husband. Hence, I say that this Court may have created a power in the Attorney General which that officer, in view of his contentions in this Court, may not have asserted was his.

I readily agree that it is a salutary policy and one long held in this state which recognizes the Attorney General’s power to protect charitable trusts from waste and mismanagement. This power was recognized at common law. As stated by this Court in Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326:

“It is the duty of the Attorney General to invoke the powers inherent in our courts to prevent an abuse of the trust. These questions were set at rest in Powers v. First National Bank of Corsicana, [138 Tex. 604, 161 S.W.2d 273] which held that as respects a charitable trust, as distinguished from a private trust, it is an official function of the Attorney General of Texas under our Constitution and laws to intervene in court ‘to enforce the trust in event of misfeasance or nonfeasance of the trustee.’ ”

At common law, the Attorney General could institute an original suit, intervene in a pending one or by pleading in a suit to which he is a party, raise the issue of mismanagement and wastage by the trustees of a charitable trust. He could also challenge the fairness of the allocation of property between a charitable trust created by a husband’s will and a wife who decided not to take under the will; but the issue in this type of litigation is whether or not the allocation made by the independent executors is fair and equitable to charitable trust.

There is considerable discussion in the briefs as to Article 4412a, Vernon’s Ann. Tex.Civ.Stats. This Act was passed by the 56th Legislature in 1959 (Ch. 115, p. 203) and the provisions thereof having any possible pertinency are as follows:

“Section 1. As used in this Article, the term ‘charitable trust’ includes all gifts and trusts for charitable purposes.
“Sec. 2. For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to and shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is:
“a. To terminate a charitable trust or to distribute its assets to other than charitable donees, or
“b. To depart from the objects of a charitable trust as the same are set forth in the instrument creating the trust, including any proceedings for the application of the doctrine of cy pres, or
“c. To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust, or
“d. To contest or set aside the probate of an alleged will by the terms of which any money, property or other thing of value is given, devised or bequeathed for charitable purposes.
“Sec. 3. (Relates to the service of process.)
“Sec. 4. A judgment rendered in any suit or judicial proceeding referred to in this Article without service or process upon the Attorney General shall be void and unenforceable. Any such judgment shall be set aside upon motion of the Attorney General filed at any time thereafter.
“Sec. 5. Any dispute, claim or controversy of a character described in Section 2 of this Article, and affecting a charitable trust may be settled or compromised by agreement, with or without the intervention or approval of a court, provided, however, that no such compromise, settlement agreement, contract, or judgment shall be valid or binding unless the Attorney General is a party thereto and joins therein. The Attorney General is expressly authorized to join and enter into such compromises, settlement agreements, contracts, and judgments, as aforesaid, as in his judgment and discretion may be in the best interests of the public.”

This Act is supplementary to the Attorney General’s common law powers and must be construed with reference thereto.

Under the Act it is necessary to make the Attorney General a party to litigation which possesses certain defined characteristics, such as a suit to set aside the probate of a will, invoke the doctrine of cy pres and the like. The provisions of Section S are expressly restricted to the situations mentioned in the subdivisions of Section 2. The statute cannot be reasonably construed to mean that any and all claims that may be presented to independent executors cannot be settled by them without the intervention or the approval of the Attorney General. The statute so construed would effectively remove the estate from the executors’ control and place upon the Attorney General th& considerable' burden of approving any and all claims, such as funeral charges, expenses of the last illness and the like, which might be presented in connection with estates involving charitable trusts. A careful reading of the statute demonstrates that such is not the breath of the statute but that, on the contrary, it is carefully restrictive.

No provision other than Subdivision a, of Section 2 of the Act could possibly have any application to the situation before us. In a technical or accurate way of speaking, the improper allocation of assets claimed by the charitable trust to an adverse claimant is hardly a distribution of the assets of a charitable trust to other than charitable donees so as to bring the case within the provisions of Article 4412a, § 2, subd. a. However, the point may be of little practical importance in that a suit to prevent independent executors from wasting an estate by giving its property away could be maintained at common law. The suit is essentially one to prevent waste and if such a suit is to be maintained upon the factual situation of this case, it must be shown that the allocation between the charitable trust on one hand and the nontaking wife on the other is unjust and inequitable. This is true whether the Attorney General’s authority is said to proceed from Article 4412a, § 2, subd. a' or from the application of common law principles. If an unfair distribution be regarded as the distribution of the assets of a charitable trust to a non-charitable donee or as a dissipation of the assets of the trust, the result in the present proceedings is essentially the same. The issue in either case is that of the fairness of the proposed allocation.

The construction given by the Court to the statute with reference to the Attorney General’s powers is so broad that State control and direction rather than State protection may be inferred therefrom. It is my opinion that the powers of the Attorney General over charitable trusts as construed in the past, have in the main proved adequate and satisfactory. I am persuaded that persons desirous of promoting good works through the charitable trust device also desire to appoint and designate those who will carry out their programs. I am not so naive as to assume that independent executors or trustees, because of their designation as such, are always trustworthy and honest, hut there is something to the thesis that unless and until it has been shown that they are dishonest, that they are mismanaging an estate, or dissipating its assets, those charged with management obligations by a trust settlor should be allowed to carry out their functions.

As above indicated, I seriously question the sufficiency of the points raised in this Court to support the broad holdings it has made. I would also point out that the all-important issue upon which litigation of this type should be decided was neither raised in the Court of Civil Appeals nor in this Court, namely, Was the allocation of properties between the charitable trust and the nontaking wife fair and equitable to the charitable trust? The County and District courts have impliedly held that it was. The Court of Civil Appeals has said that, “There is no assertion the proposed distribution is inequitable or that the foundation trust estate will be prejudiced thereby.” That statement is correct and should control the disposition of this case. Evidence was introduced in the courts below which had as its purpose the sustaining of the proposition that the allocation was fair and equitable and the fact that this Court may consider such evidence as insufficient or wholly without probative force as a matter of law, will not supply a proper point raising the issue. In fact, the case below was tried by the Attorney General upon an entirely different theory.

The points of error contained in the application for writ of error filed in this Court are as follows:

“First point: The Court of Civil Appeals erred in upholding the action of the executors in treating the entire estate as community property and in making an equal division thereof with the widow, and in approving the action of the trial court adopting such arrangement, because the undisputed evidence shows that a very substantial portion of said estate was the separate property of the deceased.
“Second point: The Court of Civil Appeals erred in failing to hold that the trial courts were without jurisdiction of this suit because same was a ‘trial of title to land,’ original jurisdiction of which is given to the district court in Article V, Section 8, Texas Constitution.
“Third point: The Court of Civil Appeals erred in upholding the partitioning of said estate in the absence of appointment of Commissions to make such division and distribution as provided by the statutes of this state.”

The first two points may be discussed together. We have intermingled estates, so to speak. Technically, there is an estate belonging to the testator which is now held by the charitable trust which he created. We have also an estate owned by Mrs. Perry, who refused to take under the will of her deceased husband. The problem is to untangle these intermingled estates and allot to the charitable trust its fair share of the property.

It is conceded that a portion of the property involved in this litigation was acquired by M. G. Perry before his marriage to Johnnye D. Perry. It is also conceded or conclusively shown that such property was subject to a large indebtedness at the time of the marriage of M. G. Perry and Johnnye D. Perry and that such indebtedness was ultimately paid off by monies belonging to the community. While the opinion concurring with the Court’s order of reversal seems to take a contrary position, it is implicit in the holding of the Court that claims of the community against a separate estate may be settled by applying a portion or all of the separate estate to the satisfaction thereof. While the legal proposition underlying this holding is not free from difficulty, I accept it upon the theory that the separate estate could undoubtedly be sold and the proceeds applied to the settlement of community claims. Section 234, Vernon’s Ann. Probate Code; Lang v. Shell Petroleum Corp., 138 Tex. 399, 159 S.W.2d 478.

The acceptance of this view that the separate property of one marital partner may be given to the surviving partner in an allocation of the assets of the intermingled estates is, to my mind, controlling in the disposition of this cause. The issue then reached is whether or not the distribution and division of the property involved was fair and just to the charitable trust represented by the Attorney General.

The executors of the M. G. Perry estate came to the conclusion that the interests of both the M. G. and Johnnye Perry Foundation (a charitable trust set up under the will of M. G. Perry) and Mrs. Perry would he served by dividing the property owned by Mr. Perry (separate and community) and that owned by Mrs. Perry (community) into two separate moieties. This was done upon the theory that Mrs. Perry’s share of the community contributions and the demands for reimbursements resulting therefrom were substantially the same in value as one half of the separate property owned by Mr. Perry. In other words, the separate property of Mr. Perry was used to offset the community demands for reimbursements of Mrs. Perry. If the allocation proposed by the executors be fair and equitable, it could he properly approved by the probate court and made effective by court decree in a suit to which the Attorney General was made a party.

While the final distribution of the assets of an estate is commonly referred to as a settlement of the estate, it is not necessarily accomplished by an agreement of the parties. In numerous cases, a plan proposed by executors or administrators may be contested by those claiming an interest in the estate. When this is done the result is an adversary proceeding. When a charitable trust is involved and the Attorney General is made a party, he may, as the representative of the charitable trust, agree to a plan of settlement or he may litigate the issue of the reasonableness and fairness of the executor’s proposal. Article 4412a, § 5 does not place the Attorney General above the probate court and deprive that judicial body of the power and authority to approve a plan of distribution upon a finding that the same is just and equitable. The Attorney General may have the right to litigate, but he does not have the power to veto. He cannot prevent a judgment’s being rendered in an adversary proceeding by refusing to agree to such judgment. When judgment is rendered in such adversary proceeding against his consent and over his protest, he has lost a lawsuit like any other litigant. Upon this point, I am in agreement with the Court of Civil Appeals. Of course, the Attorney General as a party litigant, had the right of appeal but as an appellant he must, in order to gain success, assert a ground of reversal under applicable procedural rules as is required of any other litigant.

As I understand the record, the judgment now appealed from was rendered in an adversary proceeding. Mrs. Johnnye D. Perry, who refused to take under her husband’s will and claimed her interest in the community estate owned by her and her deceased husband, was the contending litigant on one side. The opposing party was the Attorney General representing the interests of the charitable trust.

A plan affecting such division and distribution has now been approved by orders of both the probate and the district courts. As heretofore indicated, the Attorney General in the Court of Civil Appeals did not assert that the distribution approved by the district court was inequitable or prejudicial to the charitable trust which he represented. His position was that the district court was without jurisdiction because a title matter was involved and that there was error in failing to set over to the charitable trust •that property which was conveyed to M. G. Perry prior to his marriage. It is asserted ■that an estate like the present one, part separate and part community, cannot be distributed by dividing the property (other than that which is admittedly community) between the charitable trust (representing the husband’s estate) and the surviving widow because the probate court is not .authorized to award the survivor part of the separate property in repayment or extin-guishment of the survivor’s reimbursement ■demands. If, on the other hand, the probate ■court may use separate property to offset community demands for reimbursements in distributing an estate, as I believe it can, then, as above indicated, the question occurs as to whether or not the distribution is fair and equitable.

Some factual background may make my ■position somewhat clearer. The principal item of separate property in dispute is a .5680-acre farm which at one time was owned by the partnership of Simmonds and Perry. M. G. Perry acquired his one-half ■interest in this farm before his marriage to Mrs. Perry in 1925. Mrs. Perry testified that immediately after her marriage she •went to live upon this farm. At that time there was a residence where she and her husband resided, four small houses, some pens for cattle and tools used in farm operations. The dwelling house upon the premises was completed after the marriage. At that time the property was subject to a purchase money indebtedness of $280,000. She also testified that during the 1930 depression years they had "quite a struggle” meeting their financial commitments. Mr. and Mrs. Perry, during their marriage, •maintained no separate bank accounts. It appears that Mr. Simmonds died in 1933 and that for sometime thereafter the ranch was operated by Mr. Perry in accordance with arrangement he had with Simmond’s widow. The surface estate in the ranch was finally divided between Mrs. Simmonds .and the Perrys in 1945. We have here an instance of a husband and wife living together for a period of some thirty-four years operating with a common bank account and working together to pay off a large indebtedness owed by the husband at the time of the marriage and ultimately through their joint efforts accumulating a substantial estate.

One witness described Perry’s financial condition during the depression years as being “worse than broke.” While undoubtedly the ranch referred to is a valuable piece of property on the present-day market, it is undisputed that Mrs. Perry, as a community partner, is possessed of large and substantial demands for the community reimbursements. One of the executors testified that in his opinion those claims would more than offset the value of that portion of Mr. Perry’s separate estate which was awarded to her under the plan of settlement and distribution. However that may be, if, as a legal proposition, the probate court may award separate property in discharge of community demands for reimbursement, and has entered such order the same should not be set aside in the absence of an assertion that such settlement is not just and equitable to the parties concerned.

From a practical standpoint, the sustaining of the Attorney General’s position would not only deprive the probate court from allocating separate property to the discharge of community demands for reimbursement, but would require the community claimant to show by proper voucher or other evidence each and every expenditure of money or services rendered over a long marital experience. This is a wholly impractical requirement because in most marriages accurate accounts between husband and wife are not kept and “mine” and “thine” concepts of property are not dominant considerations. All that should be required is a showing that the division and distribution approved by the court is fair and equitable. Both the probate and district courts have held that the proposed disposition in this case was fair and equitable. The contrary was not asserted in the Court of Civil Appeals, and we cannot try a different lawsuit than that decided by the Court of Civil Appeals.

As to the third point, I believe it is without merit because Articles 150 and 377 of the Probate Code have no application to the factual situation presented by this case. In Article 150 it provides a procedure to be followed “if the will does not distribute the entire estate of the testator * * Here the will makes a complete distribution of the entire estate of M. G. Perry. The problem is that of allocating the intermingled estates of M. G. Perry and Johnnye D. Perry. The independent executors must know what property belongs to the charitable trust before it may be turned over to the trustees chosen by the testator to manage the trust. In order to determine what property should go to the charitable trust under the will, it is necessary that M. G. Perry’s interest in the intermingled estates be determined and set aside. In order to do this, it is incidentally necessary to allocate to Mrs. Perry her interest in the intermingled estate. What does not belong to the trust belongs to her. This allocation is a primary duty of the executors. It could be done by the filing of an inventory and appraisement of the M. G. Perry estate. It could be done in the manner followed in this case. It is essentially a probate matter in that the property subject matter covered by the will is sought to be determined. There is no contention here that the probate court was without jurisdiction other than the assertion that there is a title dispute involved.

A plan of allocation of properties between what amounts to two estates was submitted to the probate court. That plan was there attacked in an adversary proceeding. The issues were determined favorable to the plan. There is no assertion here that the allocation was unfair or inequitable to the charitable trust. An affirmance of the judgment of the Court of Civil Appeals should follow. Accordingly, I respectfully dissent from the order of reversal.

GRIFFIN, WALKER and GREEN-HILL, JJ., join in the dissent.

      . Probate Code § 294 et seq.

      . “§ 378. Decree of the Court
      “If the court is of the opinion that the estate should'be partitioned and distributed, it shall enter a decree which shall state:
      “(a) The name and address, if known, of each person entitled to a share of the estate, specifying those who are known to be minors, and the names of their guardians, or the guai'dians ad litem, and the name of the attorney appointed to represent those who are unknown or who are not residents of the state.
      “(b) The proportional part of the estate to which each is entitled.
      “(c) A full description of all the estate to be distributed.
      “(d) That the executor or administrator retain in his hands for the payment of all debts, taxes, and expenses of administration a sufficient' amount of money or property for that purpose, specifying the amount of money or the property to be so retained.”

      . “See. 5. Any dispute, claim or controversy of a character described in Section 2 of this Article, and affecting a charitable trust may he settled or compromised hy agreement, with or without the intervention or approval of a court, provided, however, that no such compromise, settlement agreement, contract, or judgment shall be valid or binding unless the Attorney General is a party thereto and joins therein. * * * ”

      . “Sec. 2. For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall he a necessary party to a,ud shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is:
      “a. To terminate a charitable trust or to distribute its assets to other than charitable donees, or
      “b. To depart from the objects of a charitable trust as the same are set forth in the instrument creating the trust, including any proceedings for the application of the doctrine of cy pres, or
      “e. To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust, or
      “d. To contest or set aside the probate of an alleged will by the terms of which any money, property or other thing of value is given, devised or bequeathed for charitable purposes.”


author: GREENHILL, Justice.

text:
    PIONEER NATURAL GAS CO., Petitioner, v. K & M PAVING CO., Respondent.
    No. A-9247.
    Supreme Court of Texas.
    Dec. 4, 1963.

      Gibson, Ochsner, Harlan, Kinney & Morris, Max R. Sherman, of the firm, K. Bert Watson, Amarillo, for petitioner.
    Key, Carr, Carr & Clark, Aubrey J. Fouts, of the firm, Lubbock, for respondent.
   GREENHILL, Justice.

This is a suit by K & M Paving Company against Pioneer Natural Gas Company for the loss of an earth moving machine by explosion and fire as a result of the machine’s cutting one of the Pioneer Natural Gas Company’s buried pipelines on the outskirts of Lubbock, Texas. In the district court, the jury verdict and judgment was for the plaintiff in the amount of $12,500. The Court of Civil Appeals affirmed. Tex.Civ.App., 359 S.W.2d 533.

Article 1436b, Vernon’s Texas Civil Statutes Annotated, authorizes gas transmission companies to lay and maintain lines under public roads and highways of Texas, and this pipeline was laid in accordance with that statute. The statute prescribes minimum heights for power lines, but it does not prescribe depths for pipelines. The State Highway Commission may, if it so desires, designate the place where the pipes or fixtures shall be laid; but it did not do so. And it may require the company, at the company’s expense, to relocate any lines or fixtures to permit the widening or changing of traffic lanes by giving 30 days’ written notice to the company. And it may specify the pipes or items to be moved and the place to which they shall be moved. As will be discussed later, the Highway Department did notify Pioneer that work would be done on that highway; but Pioneer was not directed, under the statute, to move or relocate any of its lines.

In 1956, pursuant to the statute, Pioneer filed notice with the district office of the Texas Highway Department in Lubbock that it was going to lay this 3-inch pipeline in the right-of-way of U. S. Highway 62. The line was to be used to distribute gas to customers as contrasted with a transmission line. Plats were filed with the department in its Lubbock office, showing the location of the line. At the time the pipes and other equipment were installed, the area was outside the City of Lubbock. At the time of the accident, the area had been taken into the city, though the road was still a part of a state highway and federal highway system.

The ditch or trench for the pipeline was dug in 1956 by L. P. Harris, an independent contractor. He testified that his ditching machine cut to the full depth of 48 inches for the laying of the line. J. H. Hord, Pioneer’s construction engineer, testified that Pioneer, when the pipe was laid, maintained at least a 36-inch ditch in the vicinity of the accident. George Kirchoff, Pioneer’s division engineer, testified that Pioneer’s instructions were to have at least 30 inches of cover for the line; that Pioneer paid Harris for the laying of the line at least 30 inches below the surface. There was no evidence that it was laid at a lesser depth. There was no testimony from any witness, lay or expert, that the line was laid to an insufficient depth or what a proper depth would be. There was testimony that the line might not have been cut if there had been a casing. But there was no testimony that the line should have been encased or what a proper casing would have been.

About December 13, 1957, Pioneer received from the Texas Highway Department a letter stating that it was in the process of planning improvements to four different highways in Lubbock County. The letter contained no right-of-way specifications or any notice of the date when the construction might begin. The letter did say that detailed maps and right-of-way requirements would be furnished Pioneer at a later date. About January 6, 1958, Pioneer received from the Texas Highway Department a transmittal letter to which was attached preliminary right-of-way maps for two projects on U. S. Highway 62. The maps did not show specific requirements for right-of-way, nor did the letter direct Pioneer to move or lower any of its lines or other facilities.

On January 30, 1959, James C. Kerr, President of Kerr Paving Company and of K & M Paving Company, entered a contract with the Texas Highway Department to improve and widen four miles of U. S. Highway 62 in Lubbock County, Texas. Kerr assigned the contract to the Kerr Paving Company. We shall refer to Respondent herein as Kerr or K & M. As part of the construction, Kerr used a large earth scraper, owned by K & M, which had its own motor and was also pushed by a caterpillar tractor to cut down the grade of the road. The scraper, which weighed 26,000 pounds, and tractor had a combined power of 230 horse power. While eng'aged in this scraping, the scraper .struck Pioneer’s gas pipeline.

In its operation, the scraper cut several inches off the surface on each pass, and the pipe was struck on the third or fourth time the scraper passed over this particular area. There was an explosion and a fire, which destroyed the scraper.

At the time the machine struck the pipeline, the pipeline was buried at a depth of approximately two feet. Kerr’s foreman, Joe Cope, testified that he took an elevation at the point, and that the pipe was 24 inches below the surface when struck. Other witnesses for Kerr testified that the pipe was 15 to 18 inches below the surface when it was struck. When the pipe was laid, the road was unpaved. Prior to the present road work, there had been other road work which apparently had cut some of the covering from over the pipeline. At the point where the machine struck the pipeline in the highway right-of-way, the pipeline was laid in a zig-zag pattern, as shown on the plat filed with the Highway Department. The pipe when struck was at the place where it was shown to be on the plat.

Kerr stated that he proceeded to do the cutting and scraping on the assumption that the area was clear of obstructions and that all gas lines were visibly marked. He testified, over objection, that there was a custom of the Highway Department to notify all parties, including utilities, to move their obstruction from the highway; and that usually the utilities would move or lower their lines or would notify the contractor of anything in the way. He looked for written warning signs though there were meters, which he saw, all up and down the highway, adjacent to buildings but off of the right-of-way.

Joe Cope, [plaintiff’s] Kerr’s foreman, testified that he saw the meters which were along the highway but not on the right-of-way, and a Christmas tree or large gas regulator across the street which indicated to him that there might be a line along the road. He and the Highway Department Engineer noticed the regulator and other gas company equipment, “and so we discussed should we call the gas company. * * * ” It was decided that no call should be made because there was not any indication [to him] that “the [gas] line would be going that way.” He assumed that the line was off of the right-of-way and that it went directly from the regulator to a large meter off of the right-of-way in a straight line. The problem as to the zigzag course of the pipeline at this point is relevant to the question as to whether Kerr was contributorily negligent in failing to correctly ascertain the path of the line. Under our disposition of the case, it is unnecessary to pass on that point.

Like Kerr, Cope said he worked on the assumption that the right-of-way had been cleared or that he would be notified. He conceded that he had made mistakes, and that he definitely made a mistake in this instance.

As stated, there were along the pipeline right-of-way no signs stating a pipeline was there, but there were adjacent to the right-of-way many gas meters, gauges, and regulators. These various pipeline apparatus were clearly visible to the men working on the road. Immediately across the intersection from the accident was a large regulator or Christmas tree, plainly visible, which Kerr’s men had inspected in an attempt to estimate the path and depth of the pipeline.

Kerr had not requested plats from either the Highway Department or from Pioneer showing the location of the pipeline. Neither the Highway Department nor Pioneer volunteered information or warning to Mr. Kerr of the path of the pipeline.

A month earlier, while working at the Slide Road intersection a mile east of the point where the accident occurred, Kerr’s foreman had talked with Pioneer’s Division Engineer, George Kirchoff. Kirchoff, at that time, had come out to the job site to help locate a gas pipeline located at that point of the construction job. These facts will be discussed more fully later in this opinion.

The jury’s findings are set out below. Some of the inquiries were phrased negatively, and the answers are set out as they were made. The jury found Pioneer was negligent in the following respects: in failing to have the pipe buried deeper than it was; in failing to have the line encased in a protecting conductor pipe; in failing to notify the employees of Kerr of the location of the line in question; in failing to mark the pipeline at the place in question; and that each of these acts or omissions was a proximate cause of plaintiff’s damage. The jury found that the failure of Pioneer’s engineer, Kirchoff, to disclose the location of the line in question when he was at Slide Road and U. S. Highway 62 [approximately a mile from the scene of the accident] was negligence and a proximate cause; that Kirchoff did not reasonably believe that the conversation related to lines in that area [only]; that Kerr’s foreman, Cope, did not make his only investigation of the location of the lines after he discovered the presence of the regulator; that Cope did discover a gas installation in the vicinity of the accident prior to the accident; that he did discover a regulator of the gas company there before the accident; that after considering calling the gas company, he did not make a decision to not call the gas company and find out the exact location of the gas line; that after discovery of the gas regulator, he failed to find out from Pioneer where their lines were located, but that this was not negligence.

The jury further found that plaintiff was operating its earth-moving equipment at the time and place in question without having first found out from Pioneer where its lines were, but this was not negligence; that plaintiff Kerr, before the accident, at the time and place in question, found out, or by the use of ordinary care could have found out, from the Highway Department that Pioneer had a line at that location; but that it was not negligence for plaintiff to continue to work at that location after having found out or having failed to find out. It found further that after discovering the regulator, Cope did not know that there was a gas line crossing the road in that vicinity; that Cope did not assume the risks; that the situation was not open and obvious; and that the occurrence was not an unavoidable accident.

Pioneer’s approach in its application for writ of error is a little unusual in that it does not have points of error that the particular findings of the jury are not supported by evidence. That is, it does not have points that there is no evidence to support the jury’s finding that Pioneer buried the pipe an insufficient depth, failed to encase it, and failed to mark it. Nor does it have a point which says, in so many words,, that there was no evidence that these acts, or omissions constituted negligence. Rather its points are that it cannot be held liable for the destruction of K & M’s scraper because it breached no duty which it owed to K & M; that K & M was a trespasser to its-pipeline and therefore Pioneer owed a duty only not to injure K & M through gross negligence, or through willful or wanton, conduct. Finally, Pioneer asserts that K & M was guilty of contributory negligence as a matter of law.

In the construction and maintenance of the pipeline, Pioneer has a duty of ordinary care to protect people and property in the vicinity of the line from the types of harm ordinarily resulting from a gas pipeline. Thus they have a duty to properly install their lines and to avoid dangers from-occurrences such as leaks and breaks in the pipe which could result from others making ordinary use of the surface. There may be other circumstances, not present here, in. which additional duties or immunities have been imposed upon or granted to the pipeline operator by contract, oil and gas lease, statute, administrative regulation, or ordinance. While under the statute the Highway Department had the authority to require Pioneer to move its line, it did not do-so.

We regard the accident occurring here-as resulting from an extraordinary use of the surface by K & M, and not falling within those cases involving an ordinary use of the surface. As above stated, the undisputed evidence is that the line was buried. to such an extent that it took three or four passes of powerful digging or scraping machines to unearth the pipe.

Under these circumstances, the question is whether it is the duty of the pipeline company to continuously police its lines to keep ■others from interfering with them or being injured by them; or whether it is the duty •of persons who do make an unusual or extraordinary use of the surface to find out where the lines are, and then either (1) .avoid them or (2) request their relocation or that they be deactivated during operations, ■or to make reasonable inquiry so that it then becomes the duty of the pipeline company to make a disclosure of the location of its lines so that the other party may avoid striking the line.

Some of the cases dealing with the ■digging up of pipelines in streets have talked in terms of trespass to an easement or trespass to chattels, and this is one of Pioneer’s points. Thus in Mountain States Tel. & Tel. Co. v. Vowell Construction Co., 161 Tex. 432, 341 S.W.2d 148 (1960), this Court held Vowell guilty of trespass to the buried telephone cable. But the fact was •in Vowell that the construction company which dug up the street had actual knowl•edge of the presence of the cable in the right-of-way. Here K & M did not, but the jury found that it could have ascertained the pipeline’s location by ordinary inquiry from the Highway Department there in Lubbock. The question of constructive knowledge or duty-to-know in trespass to ■chattels is a field of the law which is both •difficult and unsettled. As this opinion is written, we do not reach the trespass question.

As to the duty of the person who digs up ■or encounters the line, foreseeability has also been considered an element. It has made a difference whether a line was encountered in an open rural field or whether it was dug up in a city street.

We think it sound, in the light of the cases hereinafter discussed, to hold that at least where the activity is in an urban street or road, and where an unusual or extraordinary use of the surface is necessary to unearth the pipeline, and where there is no contract, statute, ordinance, or regulation governing the matter, the initial burden is upon the one who excavates or digs up the surface to avoid striking the line or to make reasonable inquiry as to the location of any lines which might be encountered. The duty of the pipeline operator under these circumstances arises, then, when it is requested to alter its lines or their use, when it is asked for information, or when it is otherwise put on such notice that it is required to take particular action to protect the lives or property of others.

Obviously Kerr did not avoid striking the line. The question then is whether Kerr took such steps as to give rise to a duty on Pioneer’s part to point out its lines or otherwise protect them.

Following the requirement of the statute and perhaps foreseeing that excavation might later take place in the street or road, Pioneer filed with the Highway Department in its Lubbock office plats showing the location of the line in question. The jury answered that Kerr, by the use of ordinary care, could have found out the location of the line from the Highway Department, and that Kerr operated his machinery in the vicinity of the line without having found out from Pioneer where they were. The jury found these acts did not constitute contributory negligence, and Pioneer contends that they constitute contributory negligence as a matter of law. Our view is that these findings determine that Kerr did not take such steps as to give rise to a duty on Pioneer’s part. We shall refer to an inquiry made by Kerr’s foreman, Cope, of Pioneer’s supervisor, Kirchoff, later herein.

In Willmar Gas Co. v. Duininck (1953), 239 Minn. 173, 58 N.W.2d 197, the defendants dug up the gas company’s line in excavating a street. The company had maps available for inspection showing the location of its lines, but defendant had never asked to see them. In holding that the trial court correctly refused to submit the question of the company’s negligence to the jury, the court held:

“Under these circumstances it would be unreasonable to charge plaintiff with the duty of constantly watching the operations over which it had no control to ascertain, at its peril, when defendants intended to proceed with such work as might damage its service lines. Rather, the duty should rest upon defendants to notify plaintiff when they intended to proceed with the work and to ascertain whether service lines of plaintiff were located in such places that they might be damaged if defendants proceeded with the work. * * * It would place an unreasonable burden upon plaintiff were we to require it to follow all stages of a street improvement project and to constantly follow the equipment of a contractor doing such work to see that none of its lines were damaged.”

In Frontier Telephone Co. v. Hepp, 66 Misc. 265, 121 N.Y.S. 460 (1910), the defendant was moving a house through the streets. The telephone company had agreed to move its wires above the ground along the route and had men along the way for such purpose. The house was being moved at the point in question by driving stakes into the ground and using a capstan and' tackle. One of the stakes was driven into two underground telephone cables. The defendant argued that it had no knowledge-of the location of the lines and that the telephone company should have warned the plaintiff of its cables. The court observed, that it was almost required to take judicial knowledge that streets are underlaid with, cables and conduits, and that the duty rested on one excavating the streets to inform-himself: “ * * * the duty rests upon him. to fully inform himself as to what lies below, so that he may avoid injury to the property of the city or others rightfully there.” The Court continued:

“As we see it, it was the duty of the defendant to have informed himself of that location, and the plaintiff had the right to assume he had performed that duty for his own protection, and the telephone company cannot be charged with any failure to seek out the defendant and tell him where its cables were laid. Maps and plans showing the exact location of the plaintiff’s conduits and cables, as laid in Ellicott street, were on file in the city engineer’s office, and all the information required could have been obtained by consulting those maps. The defendant could have acquired the same information from the maps kept at the plaintiff’s office. Notwithstanding, the defendant proceeded with his moving operations without any inquiry whatever, when it seems to the court if he had reflected he must have known that somewhere in that street telephone conduits existed.”

Many of the cases are summarized in Illinois Bell Telephone Co. v. Chas. Ind Co., (1954), 3 Ill.App.2d 258, 121 N.E.2d 600. The defendant was there engaged in grading streets and installing sewers. The City’s engineers had marked the stakes and depth of excavations. The plaintiff telephone company had previously laid cables in the parkways along the streets. The City’s plans furnished defendant did not show plaintiff’s lines, and defendant’s employee operating the digging device said he saw nothing to call his attention to the presence of plaintiff’s buried cables. No actual knowledge of the cable was shown. Plats showing the location of the lines were on file at the company’s office which defendant and others had been invited to consult, and also at the office of the City Engineer. Defendant denied receiving the invitation. The trial court, sitting without a jury, found the telephone company to be contributorily negligent in failing to inform defendant of the location of its underground cables. The appellate court reversed saying that as a matter of law, the phone company was not guilty of contributory negligence. While the decision ultimately turned on trespass to the telephone lines based on charged or constructive knowledge (and it was held that there was a trespass), the court said:

“Under the authorities, it was the duty of the defendant to inform itself of the location of plaintiff’s property, and the plaintiff cannot be held con-tributorily negligent as a legal proposition because it did not seek out the defendant and inform it where its conduit and cables were located, * *

This Court cited and followed the above Ind case in Mountain States Tel. & Tel. Co. v. Vowell Construction Co., 161 Tex. 432, 341 S.W.2d 148 (1960).

Of interest is Young v. Herrington, 312 S.W.2d 685 (Tex.Civ.App.1958, no writ). The Texas Court of Civil Appeals there said that in the absence of contractual agreement in the pipeline easement, the owner of the pipeline owed no duty to bury the pipe to any particular depth or to mark the line. But when the landowner called to the attention of the pipeline owner that a hazardous condition existed because of anticipated land-clearing operations, and the pipeline owner agreed to bury the line below plow depth but failed to do so, it was held that a duty and a cause of action for negligence arose to a third party (the plaintiff) who was injured when his bulldozer struck a line buried only a few inches.

Kerr contends, however, that it did call on Pioneer to point out its lines at this location. Kerr points out that its foreman, Cope, did make inquiry of Pioneer’s supervisor, Kirchoff, at the Slide Road intersection a month or so before the accident. Kerr’s position is that this inquiry did give rise to a duty on Pioneer’s part to point out the line at the intersection where the accident occurred, and that Pioneer, through its agent, Kirchoff, violated that duty.

There was testimony that Kirchoff had driven up and down the “Brownfield Highway” (the road or street in question) during the construction. He had “just driven up and down the road” and had been on it in connection with other duties, such as getting new customers for the company. In so doing he had observed the work in progress. The entire highway project extended to the Hockley County line. He knew Pioneer had lines in the road under permits from the Highway Department, including some near the town of Wolfforth. He had seen the heavy earth-moving equipment on both sides of the highway and the installation of curbs and gutters. His position was that he could not follow contractors around and tell them not to dig too deep at any one place; that he was glad to furnish information upon request as to Pioneer’s lines and had done so on many occasions to others as he did for Mr. Cope at the Slide Road intersection. For the company’s information, Kirchoff had drawn onto a map of the highway or street some of Pioneer’s lines which were in the highway including the one in question. He said this was done in case Pioneer found it necessary to adjust its lines or was requested by the Highway Department to move or lower the lines. It was not established when this map work was done by Kirchoff. Pioneer had received the general map of the over-all proj ect well over a year before the accident.

It is necessary here to summarize the testimony of Cope and Kirchoff. Cope testified that on this same street or highway project, Kerr was putting in a culvert and drainage ditch at the Slide Road intersection. Kerr had to lower the grade. A water main was discovered and work was delayed so it could be lowered. Meanwhile, Kerr put his scraper to work to cut a channel for the water main. A State engineer, Mr. Elmer Wright, was also present, and he stepped on a gas meter box in the weeds along the right-of-way. Cope and Wright looked about and saw a gas installation near. So Cope telephoned Kirchoff to inquire whether Pioneer had a line there. He was told that it did. Kirchoff did not know how deep the line was buried, but he said he would come out immediately to check it. He arrived within thirty or forty minutes. By prodding in the ground, Kirchoff located it and determined that it was within the cutting depth of Kerr. So Cope had the scraper cut around the pipe and left dirt over it. Later Pioneer lowered the pipe and the work was completed. Cope then testified, “At that time, I asked him, after we’d found that one, I said, ‘Well, do you know of any other think that I might be watching for on this job?’ And he said, ‘Not as far as I know/ ” At this point, Kerr was digging to four feet deep, and Cope said Kirchoff saw that. This occurred about a month before this accident. Cope did not see Kirchoff on the job after that.

On cross examination of Cope, he said that Slide Road intersection is a mile to the northeast of the Doud Switch or Frankfort Road intersection where this accident occurred. A community had developed around Doud Switch which necessitated the gas service. When Cope called Kirchoff, he co-operated with him in every way.

Mr. Kirchoff testified that he went to the intersection promptly. “I dropped what I wás doing and got in my car and took a pipe locater and a crowbar and went ■out to the Slide Road.” He located the pipe for Cope. He emphatically testified that he was not asked any questions at all “about what you had down at the intersection of Frankfort Road and 62.” He knew what the company had at that intersection [the intersection where the accident occurred], and did not tell Cope that Pioneer did not have any pipes there.

On cross examination, Kirchoff testified that at Slide Road they showed him what they had found, a changing color of dirt over a ditch line; and “I took a probe bar, probing down the distance of the probe bar, which is 30 inches. When we failed to hit the pipeline, found it was deeper than that, so he [Cope] had his scraper go through it.” A deep scrape was taken, and then Kirchoff found the pipe about 8 inches below the surface. Kirchoff further testified as to this Slide Road incident:

“Then there was a conversation relating to other lines in that vicinity of Slide Road. I pointed out where our lines were, where they crossed the railroad, and mentioned our line on the north side of the railroad, I was told they were not doing any construction over there, and I asked specific questions, how extensive was this channel that they were building, how far would it go and where, and he told me that it would parallel the railroad, the highway, the Slide Road intersection, to the lake immediately northeast. At that time I told them that we had an eight-inch line paralleling the railroad right-of-way, highway right-of-way, is a common line. We paralleled that right-of-way from there approximately a mile north; northeast, I should say. And I showed them the valve boxes that were over our valves at the turning point, and I pointed out that we also crossed the highway straight across at the projection of the lines where they were digging the channel.”

The State Highway engineer on the project, Mr. Elmer Wright, testified that he was present during at least a part of the conversation between Cope and Kirchoff. He said the digging at Slide Road was deeper than it was at Frankfort Avenue where the accident occurred. He testified to the discovery of the utility connection. He said Kirchoff came out and located the line. Wright discussed with Kirchoff the direction the line went, that it went toward Lubbock in a northeasterly direction along the right-of-way. It did not go in the direction of Brownfield, toward the intersection where the accident occurred. He did not recall any conversation between Cope and Kirchoff “as to whether there were any other lines that would be in his [Cope’s] way in this construction project toward Brownfield.” He said that it was possible that a conversation could have occurred which he did not hear.

The jury found that Kirchoff failed to disclose the location of the line in question at the time of the Slide Road conversation, and that Kirchoff did not reasonably believe that the Slide Road conversation related to lines in that area. There was no issue submitted as to whether Cope asked Kirchoff if there were other gas lines in the right-of-way in the entire project which Kerr might encounter. The answers are that he did not disclose the location of the line in question and that Kirchoff did not reasonably believe that the conversation related to lines in the Slide Road area. It is our opinion that, viewed in context, Cope’s inquiry of Kirchoff was not, as a matter of law, sufficient to raise a duty on Pioneer to point out all of Pioneer’s connections or pipelines in the entire four miles of the project on which Kerr was working and might encounter in the entire time it was working on the rather large segment of the highway including the pipe at the intersection in question.

As set out in the cases referred to above, where there is an extraordinary use of the surface, as there was here, the initial burden is upon one who excavates or digs up the surface to avoid striking utilities rightfully within a road or to make a reasonable inquiry as to the location of lines which may be encountered so that injury may be avoided. It is our opinion that K & M did not discharge this duty.

The conversation at Slide Road was the only inquiry shown by the record to have been made by Kerr or his agents, and since Kerr proceeded to dig into the road without having ascertained what was in or under it, it is our opinion that, in view of the cases cited above, Pioneer breached no duty toward Kerr or K & M; and that therefore Pioneer is not liable to K & M.

The judgments of the courts below are reversed and judgment is here rendered that Respondent take nothing.

      . While Article 1436a particularly describes heights for power lines, Article 1436b does not prescribe depths for pipelines along or under highways. Article 6020, dealing with regulation of pipeline companies, also authorizes the laying of pipeline under highways if the prescribed consent is obtained. But it prescribes no depths for lines. Article 1497, dealing with the powers of pipeline corporations, prescribed a minimum depth of 20 inches under cultivated or improved land. This statute was in effect when the accident occurred but is now repealed by Article 9.16, subd. B of the Texas Business: Corporation Code. It was repealed as of September 6, 1960, 5 years after the effective date of the Code on September 6, 1955. Long after the accident here, the Texas Highway Department in June, 1963, adopted a “Utility Policy” which deals with the depth, casing, and marking of pipelines in and under highways. All statutes referred to herein are Vernon’s-Texas Civil Statutes Annotated.

      . Compare Frontier Tel. Co. v. Hepp, 66 Misc. 265, 121 N.Y.S. 460 (Sup.Ct., 1910) ■which says that streets are so under-laid with pipes and conduits that one may almost take judicial knowledge that the digger may encounter some pipe or conduit in a street, and Illinois Bell Tel. Co. v. Chas. Ind. Co., 3 Ill.App.2d 258, 121 N.E.2d 600 (1954), with Socony-Vacuum Oil Co. v. Bailey, 202 Misc. 364, 109 N.Y.S.2d 799 (1952). Restatement of Torts § 218 (1934); 33 Rocky Mt. Law Rev. 323 (1961); 1 Harper & James, The Law of Torts, § 2.5 (1956); Prosser, Torts 64 (2d ed. 1955).