# Houston Fire & Casualty Insurance Co. v. Riesel Independent School District

> Court of Appeals of Texas · January 23, 1964 · 375 S.W.2d 323

URL: https://www.frixlaw.com/law-library/cases/9642956

## Case

- **Full name:** HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. RIESEL INDEPENDENT SCHOOL DISTRICT, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** January 23, 1964
- **Citations:** 375 S.W.2d 323; 1964 Tex. App. LEXIS 1905
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Wilson
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ON MOTION FOR REHEARING
By extended printed argument appellant insists we are in error in holding liability is not limited to defects appearing within one year.
In support of its position, appellant urges the provision in the specifications as to the contractor’s one-year guarantee, quoted in the original opinion; provisions as to termination, full performance and completion; and particularly Article 20 of the standard form American Institute of Architects contract general conditions (which the parties used), providing that neither final certificate nor payment shall relieve the contractor of responsibility for faulty materials and workmanship, and adding that he shall remedy defects and pay for damage to other work resulting therefrom “which shall appear within a period of one year from the date of substantial completion.”
Appellant’s argument is simply, logically and authoritatively answered by the manual designed for use in interpretation and construction of the A. I. A. standard contract documents: Parker & Adams, “The A. I. A. Standard Contract Forms and the Law” (Little, Brown & Co. 1954), pps. 38, 39. After noting that no court decision had passed on the contention now made by appellant that the contractor’s liability is limited to one year by Article 20, that text states:
“It does not seem sound to read into this provision an intent to void the broad generalities of the immediately preceding clause, and the clear statement in Article 25 that ‘no certificate issued nor payment made * * * shall be an acceptance of any work or materials not in accordance with this contract.’ The statute of limitations in a given state would determine the duration of the contractor’s responsibility under this broad provision. There would be no reason for the insertion of this provision in Article 25, nor the similar provision in Article 20, if the intention were to limit the contractor’s responsibility for defects to the one year period named in Article 20. It seems more reasonable to interpret the provision requiring correction of defects appearing within a year as constituting a specific contractual liability that would be covered by a guaranty bond which would cease to be in effect long before the end of the period established by the statute of limitations.”
The specifications in the present case emphasize the correctness of this construction that the “additional guarantee” and the one-year liability provision in Article 20 constitute a “specific contractual liability” separate from the general liability of the contractor and its surety on the performance bond.
Appellant now shows by supplemental transcript that its objections to the charge were presented to and overruled by the trial court. We therefore consider its points complaining of submission of Special Issue No. 1, inquiring whether the contractor failed to construct the school building in accordance with the contract and the plans and specifications; and Issue No. 3, inquiring whether the contractor failed to construct the foundation of the building in a good and workmanlike manner. Appellant’s objections were that the issues constituted general charges, and did not limit the jury to specific failures pleaded and raised by the evidence.
To meet appellant’s exception to appellee’s general pleading that the building was not *329 constructed in accordance with the plans and specifications and in a good and workmanlike manner, the court required appellee to specify the deviations from the contract, plans and specifications, and failures to construct in a good and workmanlike manner. Appellee thereupon alleged 21 such specifications, on which evidence was introduced.
These special issues are undoubtedly general. Generality does not always constitute reversible error. Some determining factors are suggested in Roosth & Genecov Production Co. v. White, 152 Tex. 619 , 262 S.W.2d 99, 104 . In City of Houston v. Lurie, 148 Tex. 391 , 224 S.W.2d 871 , 14 A.L.R.2d 61 , the issue submitted was whether buildings “[constituted] a serious fire hazard to life and property.” The petition alleged various facts as constituting the buildings a fire hazard, 22 specifications of which are itemized in the opinion. Following these specifications the pleading alleged that “due to the foregoing conditions” the buildings were a serious fire hazard to life and property. The Supreme Court said, “Respondent would have the trial court submit to the jury as separate issues each of the foregoing allegations of fact.” The Court then held the charge had submitted the controlling issue, and the specific allegations were “of matters of fact that fall within the scope of the ultimate question. They are evidentiary in their character, being facts that tend to prove that the buildings are fire hazards, facts to be considered by the jury in answering the issues submitted.”
In Howell v. Howell, 147 Tex. 14 , 210 S.W.2d 978 , the issue was whether the acts and conduct of defendant in a divorce case constituted cruel treatment. The Supreme Court held there was but one ultimate issue of fact to be submitted to the jury: whether the acts and omissions of defendant under all the evidence constituted cruel treatment, although the jury was required to consider a “group of facts”, and although the one ultimate issue embraced “a number of subsidiary facts.”
The ultimate issues here involved were discussed in Sands Motel v. Hargrave, Tex.Civ.App., 358 S.W.2d 670 , writ ref. n. r. e. There, issues were submitted as to whether the work under a construction contract was done in a workmanlike manner, and whether the contract was performed in accordance with the plans and specifications. After holding that the good workmanship obligation was relative, and qualified by the workmanship practices allowed by the plans, the court said “the special issue on performance in accordance with the plans, that the appellant moved the trial court to disregard, submitted this ultimate issue. This issue was worded, ‘Do you find ⅜ * * Har-grave performed the contract in accordance with plans and specifications ? ’ ”
Appellant’s present contention under its objections would have left the trial court but one alternative: to submit a series of issues inquiring whether each separate specified failure or deviation did constitute (either or both) a deviation from the plans and specifications, or a failure to perform the work in a good and workmanlike manner. Although this alternative would have only required a minimum of 21 issues in the present case, suppose, for illustration, that plaintiff had alleged several hundred specified defects, deviations or failures to perform in a good and workmanlike manner. The practical impossibility of so splitting the ultimate issues in this case is obvious. In our opinion the objections to these issues (or at least to Special Issue No. 3 which would support the judgment), were properly overruled. See Hodges, Special Issue Submission in Texas, p. 101; Pope, Broad and Narrow Issues, 26 Tex.Bar J. 921. Other points concerning objections to the charge do not present reversible error.
We have considered appellant’s points relating to objections to the court’s charge, although we have doubt as to our authority to do so. The supplemental transcript contains a nunc pro tunc order overruling appellant’s objections to the charge, which order is signed, rendered and entered on. February 11, 1964, after the original opin-( *330 ion of this court was delivered. Rule 272, Texas Rules of Civil Procedure provides that the requirement that objections to the court’s charge shall be in writing will be sufficiently complied with if the objections are dictated to the court reporter as therein provided “and are subsequently transcribed and the court’s ruling and official signature endorsed thereon and filed with the clerk in time to be included in the transcript.” It is obvious “the ruling and signature on” these objections were not transcribed, endorsed and filed in compliance with said rule “in time to be included in the transcript.” In order that appellant’s points may be fully considered, however, we have treated them as if the rule was complied with without intending to hold that we have authority to pass on the points.
Appellant’s motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642956. Public record. Not legal advice.