text:
    Morris McALLISTER, Appellant, v. James E. GARDNER, dba Gardner Plumbing & Heating Company, Appellee.
    No. 16248.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 8, 1963.
    Rehearing Denied Dec. 13, 1963.

      John D. Crawford, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellant.
    Edward E. Crowell, Jr., Leachman, Gard-ere, Akin, Porter & DeHay, Dallas, for appellee.
   BATEMAN, Justice.

Appellant brought this tort action against appellee and appeals from a take-nothing judgment rendered upon a jury verdict. Appellant’s house was seriously damaged by fire which he claimed to have been caused by the negligence of appellee, a plumber, who had been employed by appellant to-repair a gas leak in appellant’s yard. Finding no reversible error, we affirm the-judgment.

The jury findings which are material to-the problems raised by this appeal are: (1) appellee and his employees did not make proper repairs to the gas line; (2) this-failure was a proximate cause of the fire; (3) the failure of appellee and his employees to pressure test the gas line was negligence, and (4) a proximate cause of the fire; (7) the failure of appellee and Jais employees to return to appellant’s residence and make any additional repairs on the gas line was negligence, and (8) a proximate cause of the fire; (9) appellee and his employees did not discover any gas line leaks other than the one they repaired, (10) which failure was negligence, and (11) a proximate cause of the fire; (12) after the plumbing work in November 1960, appellant made no efforts to prevent an accumulation, if any, on his premises of leaking natural gas, if any, (13) which “failure” was negligence, and (14) a proximate cause; (IS) appellant failed to inspect the gas line in his yard after the November 1960 plumbing work, but (15-A) that this was not negligence; (16) appellant did not make an inspection of the gas piping in his house before the fire, but (16-A) that this was not negligence; (17) after the November 1960 plumbing work appellant did not contact anyone who had worked on or inspected his gas service line to determine whether any further work should be done on it, (17-A) which was negligence, and (17-B) a proximate cause; (18) it was not an unavoidable accident; and (19) (20) (21) damages of $18,000.

Facts

Seeing that a tree and a spot of grass in their yard were dying, appellant’s wife obtained an inspection by a representative of the gas utility, who told her that there was a gas leak in the yard and advised her to call a plumber. She then called appellee who said he would have someone “run by and put a clamp on it.” When appellant and his wife returned home the night of November 27, 1960, not having been there when appellee did his work, they observed that their yard had been dug into at the place where the dead grass was, and they assumed appellee had repaired the leak. They did not thereafter smell any gas on the premises. Appellee dug a hole large enough to expose about one foot of the pipe, and put an emergency clamp over the hole he found there. He testified that although it was a good practice to do so he did not check out more than the one spot or uncover other parts of the pipe to observe its condition; also that he had intended to talk to the owners about replacing the line, which would be in conformity to good practice, but that he did not do so. He did not leave appellant a note, or send him a statement for the work done, or have any further communication of any kind with him. Appellee admitted that an accumulation of gas, if it comes in contact with fire, will burn and that an electric spark would cause it to burn and that he was aware that such an event can occur in the ordinary use of a house. On December 28, 1960, 31 days after appellee’s work was done, there was an explosion and fire resulting in extensive damage to appellant’s house.

Neither appellant nor his wife called ap-pellee again after the work was done on November 27, the wife’s explanation for this being that “the holidays were coming up and I waited for a statement.”

Harry A. Zetterlund, offered by appellant as an expert witness, qualified as a consulting engineer and testified that he investigated the gas line in appellant’s yard on December 29, the day after the fire, and again on January 14, 1961. He had several sections of the gas pipe dug up and found numerous holes in addition to the one repaired by appellee. He expressed the opinion that these additional holes were present in the pipe at the time appellee did his work and that a pressure test would have disclosed them. He stated further that the pipe slanted upward toward the house and that in many instances escaping gas will follow the exterior of the pipe line until it can come up out of the ground. He expressed the further opinion that the gas, being about half as heavy as air, would tend to rise; that since the weather reports indicated that just prior to the fire there was a drizzly condition and a very steady wind of nine miles per hour, it was his opinion that the heavy atmosphere would blanket and tend to hold the gas down and that these weather conditions in his opinion caused the atmosphere to create a blanket over and around the house and that the gas would find its way to the eaves cf the house which would tend to direct the gas into the attic through louvers, and that this accumulated gas was ignited by an electric spark from wires in the attic, causing an explosion of the gas followed by the fire. He said that in his investigation he did not determine what ignited the gas; also that it was possible that the gas had escaped from an appliance inside the house and gone up the wall into the attic. No gas leaks were found inside the house after the fire.

Several days before appellee did his work on November 27, 1960, a Mr. Girlinghouse, who lived next door, told either appellant or appellant’s wife that he smelled gas. Appellant’s wife testified that she did not smell any gas after appellee did his work but that her neighbor, Mrs. Girlinghouse, said that she thought that she still smelled gas after the work was done; that neither she nor her husband, appellant, smelled any gas in their yard but that they did not go around the area where the gas meter was because they assumed that it had been fixed. Appellant testified that a few days after appellee’s men were out there his wife told him that someone detected the odor of gas on his premises or in his yard but that he did not do anything at all, did not call the gas company again and did not call appellee.

Opinion

Appellant’s first point of error on appeal is: “The Trial Court erred in not rendering judgment for Plaintiff based upon the following Special Issues and the jury’s answers thereto: 1, 2, 3, 4, 7, 8, 9, 10, 11, 18, 19, 20 and 21, and in not disregarding Special Issues 12, 13, 14, 17, 17a and 17b.” He argues thereunder that the findings of contributory negligence made in response to Special Issues Nos. 12, 13, 14, 17, 17a and 17b should be disregarded since there was no evidence to show that (a) he had or should have had any knowledge of an accumulation of gas on his premises, or (b) that he was under any duty to contact anyone to determine whether any further work should be done.

Only that part of the foregoing point of error which complains of the court’s refusal to disregard the findings of contributory negligence is of importance here. Of course, the findings in response to Special Issues Nos. 1, 2, 3, 4, 7, 8, 9, 10, 11, 18, 19, 20 and 21 entitled appellant to his judgment, but those in response to Nos. 12, 13, 14, 17, 17a and 17b, being findings of contributory negligence, required judgment for appellee unless set aside or disregarded. The trial court’s refusal to disregard them cannot be overturned here unless attacked by a point of error which is germane to one- or more assignments of error. Rule 418, Vernon’s Texas Rules of Civil Procedure.

We have scrutinized appellant’s amended motion for new trial and find no assignment of error therein complaining of the court’s refusal to disregard these findings. For this reason the point cannot be considered. Alamo Express, Inc. v. Wafer, Tex.Civ.App., 333 S.W.2d 651, no wr. hist.; De Busk v. Quest, Tex.Civ.App., 290 S.W.2d 569, err. dism.

Moreover, had the matter been properly brought to our attention, we would be compelled to find that there was at least some evidence, more than a scintilla, as-demonstrated above, to support the findings, and that they were unquestionably material. Therefore, in any event the point would have been overruled. Gulf, C. & S. F. Ry. Co., v. Deen, 158 Tex. 466, 312 S.W.2d 933;. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194.

By his second, third, fourth and fifth points of error, appellant complains of the submission of the contributory negligence issues and the rendition of judgment for the appellee because no inquiry was made of the jury by the submission of appropriate issue as to whether appellant had knowledge of an accumulation of gas on his premises. He cites Brownsville Navigation District v. Valley Ice & Fuel Co., 313 S.W.2d 104, no wr. hist., and numerous other cases to the effect that if a plaintiff is ignorant of a danger with which he comes in contact there is no duty on his part to exercise care to avoid such danger, and that “before an injured person can be charged with contributory negligence he must have had knowledge of the danger and appreciated the liability of injury incident to his conduct, or (that) by the exercise of ordinary care he should have known and appreciated the danger of the act.” These authorities have no application here, because in this case the jury had before it evidence which they had a right to consider in support of the view that appellant either knew of the escaping gas after appellee’s work was finished or by the exercise of ordinary care should have known of it.

The court was required and authorized to submit only controlling issues. Rule 279, Vernon’s Texas R.C.P. In our opinion the issue suggested by appellant would have been only an evidentiary issue, and it has been held numerous times that it is not necessary to submit such evidentiary issues, as they may be embraced or grouped in an ultimate or controlling issue. Guthrie v. Sinclair Refining Co., 320 S.W.2d 396, certiorari denied, 361 U.S. 883, 80 S.Ct. 155, 4 L.Ed.2d 120, rehearing denied, 361 U.S. 941, 80 S.Ct. 366, 4 L.Ed.2d 361; Maryland Cas. Co. v. Smithson, 341 S.W.2d 951, err. ref. n.r.e. Even if it could be considered a proper issue, yet appellant did not request its submission and it must be deemed to have been found by the court in such manner as to support the judgment. Rule 279, Vernon’s Texas R.C.P.

These four points are overruled.

• In his sixth point of error appellant says that the trial court erred in submitting Special Issue No. 17, inquiring as to whether, after appellee’s plumbing work was done, appellant contacted anyone who had worked on or inspected his gas service line, to determine whether any further work should be done on it, arguing that this was not a controlling issue but one that was evidentiary only. He argues that if he had contacted everyone who had anything to do with working on or inspecting the gas service line, and that even if further work were done in response to such contact, and the work was done as negligently as it was done in the first instance, the fire damage would still have occurred. We agree with appellant in this, and sustain the sixth point of error, because neither the jury nor we can assume the work would have been properly done had such contacts been made. However, this is not sufficient to require a reversal of the judgment because it leaves undisturbed the findings of the jury in answer to Special Issues Nos. 12, 13 and 14, in themselves competent to establish such contribütory negligence as would deny appellant a recovery.

The seventh and eighth points complain that the court used the word “failure” in Special Issue No. 13, whereas in Special Issue No. 12 the inquiry was only as to whether appellant made no efforts to prevent an accumulation of gas on his premises. We consider this slight variation in wording to be immaterial and not calculated to mislead or confuse the jury or otherwise to be harmful to appellant. The points are overruled.

Under his ninth and tenth points appellant says that the answer to Special Issue No. 12 will not support the consideration of Special Issues Nos. 13 or 14, arguing that Nos. 13 and 14 were submitted conditionally upon an affirmative answer to No. 12, and that, because of the use by the court of the “double negative” No. 12 was actually answered in the negative.

Special Issue No. 12 was as follows: “Do you find from a preponderance of the evidence that after the plumbing work in November 1960, Morris McAllister made no efforts to prevent an accumulation, if any, on his premises of leaking natural gas, if any? Answer ‘He did not’ or ‘He did’ ”. The answer was, “He did not.” Appellant says that this was tantamount to saying “he did not make no efforts,” which is the same as saying that he did make efforts.

This rather tenuous exercise in semantics is interesting but we think its effect is to divert attention from, rather than direct it to, the real findings of the jury. The law does not require the courts to observe the most exquisite refinements of English grammar in submitting questions to the jury; it only requires that they be submitted in such plain language as to be easily understood by the jury. We think the issues quoted above meet that standard, and the ninth and tenth points are overruled.

By his eleventh and twelfth points appellant contends that the jury’s answers to Special Issues Nos. 13 and 17-A are in irreconcilable conflict with the response to Issue No. 15-A. The substance of these jury findings is set forth in the second paragraph of this opinion. Appellant argues that if his failure to inspect the gas line in his yard after appellee’s work was done was not negligence, as found in answer to Special Issue No. 15-A, he could not very well have been negligent in failing to make any efforts to prevent an accumulation of gas in his attic, or in failing to contact those who had inspected or worked on his gas line. We have already held that Special Issue No. 17 was evidentiary, making it unnecessary for us to further notice 17-A. With respect to the asserted conflict between Nos. 13 and 15-A we hold that, since a person under these circumstances could have been negligent in failing to take steps to prevent an accumulation of gas in his attic although not negligent in failing to inspect the gas line in his yard, the irreconcilable conflict asserted by appellant does not in fact exist. Points 11 and 12 are therefore overruled.

In his remaining eleven points (13 through 23) appellant says the court erred in submitting Special Issues Nos. 12, 13 and 14 because there was no evidence, and because there was insufficient evidence, to support them, and that the court erred in rendering judgment for appellee based on the findings made in response to Special Issues Nos. 12, 13, 14, 17-A and 17-B because such findings are each against the greater weight and preponderance of the evidence. We have carefully read and considered all of the evidence, including that in support of as well as that against the findings in question, and find it to be sufficient to warrant the submission of the issues and sufficient to support the jury findings in question. These points are also overruled.

Appellee presents eight cross-points for our consideration in the event the points urged by appellant be sustained. These cross-points assert that there was no evidence to support any of the jury findings of negligence and proximate cause relating to appellee’s conduct. As the judgment is being affirmed, we do not deem it necessary to pass upon these cross-points.

Affirmed.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    W. A. MADDOX et al., Appellant, v. The STATE of Texas, Appellee.
    No. 7306.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 18, 1963.
    Rehearing Denied Dec. 16, 1963.
    Clayton, Martin & Harris, Amarillo, for appellant.
    Waggoner Carr, Atty. Gen., T. B. Wright, Leslie King and Wm. R. Hemphill, Asst. Attys. Gen., Austin, for appellee.
   CHAPMAN, Justice.

The contention of reversible misconduct on the part of an assistant attorney general and the judge of the Potter County Court at Law in the trial of a condemnation case constitute the subject matter of this suit.

The property condemned was 65,510 square feet along Highway 287 in the City of Amarillo to be used in the construction of Interstate 40, a controlled access highway having freeway lanes and outer frontage roads scheduled to traverse the City from east to west. The property is in the eastern part of the City. That taken is a narrow irregular shaped strip running approximately 662 feet along said highway taken from a larger tract owned by appellant, W. A. Maddox. Appellant Maddox and two lessees were defendants but only Dr. Maddox has appealed.

Included in or along the block of property of Dr. Maddox left after the taking was what was referred to by appellant throughout the trial as 20th Avenue or 20th Street, designated by the parties who subdivided the area, which apparently had never been used as a street and which was not paved or even graded.

Throughout much of the trial Mr. Hemp-hill, assistant attorney general, contended there was not any such street and that the probative evidence was insufficient in the record to show such a street. He had earlier in the testimony introduced as Plaintiffs’ Exhibit One a map for the limited purpose of showing the schematic of Interstate 40 but not for the purpose of showing any platting of the City of Amarillo. That map taken as a whole showed 20th Street but the part showing it was not introduced.

This record contains 1,334 pages of testimony, all of which this writer has carefully read. The first place where the use of 20th Street seems to have been questioned was in the cross examination by appellant’s counsel of the state engineer who prepared the schematic, and is as follows:

“Q. Now, you show on your map here 20th Avenue, are you familiar with that?
“A. No, sir.
“Q. You don’t know that that actually is not open ?
“A. I know it has been deeded.
“Q. I know, but we are talking about open. It is not open and never has been, isn’t that a fact?”

There is also testimony in the record to the effect that a house Dr. Maddox was leasing to another person was partly on the designated 20th Street and that a Go-Kart asphalt race track of some sort he had also collected rent on was located on said street. Therefore, the contention of Mr. Hemphill that 20th Street had never been used as a street had basis in fact in the record and his contention in his brief to the effect that the record does not contain probative evidence of the existence of the street which the City refused to close as late as 1958 is not completely without basis in the record until the city secretary testified, beginning on page 1158. From the record then, we cannot say he did not have reasonable grounds as an attorney to question the existence of 20th Street during part of the testimony, though the record does show he continued to do so long after the court ruled he could not question it.

The contention made by appellant is that the attorney committed reversible error in regard to his position on 20th Street during the trial because the property left after taking was insufficient for effective use because of its lack of depth due to 20th Street. There is testimony in the record that he also owned property abutting 20th Street on the south. Though we cannot condone the attorney’s refusal to abide by the court’s ruling and his insistence in questioning the existence of the street, we do not believe reversible error is shown.

In the first place we believe the jury would have been more inclined to be prejudiced against the attorney because of his insistence despite the court’s ruling. Additionally, the recovery allowed was well within the range of the testimony of the appraisers. Though appellant and his witnesses testified the property was worth more than the jury allowed, Mr. Elliot, appel-lee’s qualified appraiser witness testified to the contrary. The jury allowed $67,510 for the property taken, more than a dollar a square foot, whereas appellant had paid approximately eleven cents a square foot in 1957 after it had become known where Interstate 40 had been located. Mr. Elliot testified the land for which the jury allowed $67,510 was worth only $54,835 with the improvements and $43,237 without the improvements, or 66‡ a square foot. He also testified the remainder left after the taking would he equally as valuable as it was before the taking. There was considerable testimony by other witnesses to the effect that property adjoining the highway would be more valuable than that not contiguous thereto. The remainder after the taking had frontage on the highway for its full length.

Thus, we have conflicts in the testimony as to the value of the property taken and as to the value after the taking.

Since reconciling conflicts in the testimony of witnesses is peculiarly within the province of the jury, Missouri-Kansas-Texas R. Co. of Texas v. McKinney, Tex.Civ.App., 126 S.W.2d 789, affirmed 136 Tex. 75, 145 S.W.2d 1081; Beeman v. Georgia Casualty Co., 41 S.W.2d 39 (Com.App.); Hodde v. Malone Real Estate Co., Tex.Civ.App., 196 S.W. 347 (writ refused), and since the amount awarded exceeds more than $24,000 the amount testified to by one of the qualified expert appraisers, we cannot say the conduct of Mr. Hemphill prejudiced the jury.

We have no authority to reverse a case because of misconduct of an attorney unless the record shows such misconduct resulted in harm to the complaining party. From this record we cannot say that it did.

There certainly could not be any reversible error on the part of the trial judge in connection with the conduct of the assistant attorney general because he consistently held with the appellant on the question.

Likewise, there is no error in the answer of the jury to the effect that the 100,779 square feet of land left after the taking was increased in value by $10,077.90.

In the first place the court rendered judgment for the State only for the amount assessed as damages for the property taken. Furthermore, the jury had the right to take into consideration the fact that the remainder would be contiguous to the new highway and thus more valuable as a result. There was evidence to support the increase of value for such reason.

Appellant next asserts reversible error on the part of the trial judge in commenting on his ruling made to an objection.

Mr. Ochsner, attorney for a lessee on appellant’s property, was questioning one of appellant’s witnesses when Mr. Hemphill objected to his asking a leading question. Mr. Clayton, attorney for appellant, made the observation that the witness was his and Mr. Ochsner had a right to lead an adverse witness. The court then stated:

“THE COURT: Now, just a minute. Let the record show that counsel for Mr. Nicholson and counsel for Mr. Maddox, together with Mr. Maddox, have been conferring during the course of the trial, and I don’t see any very great conflict there. That is the reason I am ruling like I am.”

Of course, what the court was saying was that the witness, Mr. Hodge, did not appear to be an adverse witness to Mr. Ochsner’s client and that those two attorneys had been conferring with each other and with Mr. Maddox during the trial.

Appellant objected to the statement of the court as being on the weight of the evidence and as being highly prejudicial and damaging.

The court then instructed the jury as follows:

“THE COURT: Ladies and gentlemen, I, perhaps should have been still listening instead of talking when I made that statement, and I will withdraw it. I don’t mean to comment on the weight of the evidence or anything of that kind, but I was just — I shouldn’t have said what I said, and disregard it altogether. That is, as to counsel for Mr. Nicholson and counsel for Mr. Maddox conferring with each other and with Mr. Maddox during the course of the trial. It has no bearing whatever on the matter, and they have got a right to confer with each other. There is nothing improper about it. I don’t mean to censure them in anyway for doing so, and you will please disregard, altogether, the statement I made.”

We find no reversible error in this point.

In the first place it is obvious from the record that Mr. Hodge was not an adverse witness to Mr. Ochsner’s client in the. cesti-mony he gave. Secondly, if the -attorneys had been conferring with each other and with Dr. Maddox in the courtroom it would have been obvious to the jury and the court would not have been saying something they did not know. Thirdly, if the comment by the court was error it was harmless after the instruction of the court to the jury not to consider it.

Rule 434, Vernon’s Ann.Tex.Civ.St., Rules of Civil Procedure, provides no judgment shall be reversed on appeal in any case on the ground that the trial court has committed an error of law unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably would cause the rendition of an improper judgment. We are not of such opinion.

Our court has held that where a judge promptly instructs the jury not to consider remarks he has made and no injury is shown, the appellate court will presume that the jury followed the court’s instruction and did not consider the objectionable statements in arriving at its ver-diet. Dilger v. Dilger, Tex.Civ.App., 271 S.W.2d 169.

In passing upon the question of error in jury argument, our Supreme Court has said “ * * * we are unwilling to accede to the proposition that the juries pay little or no attention to the instructions of trial judges.” Younger Bros. Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546. That statement by the Supreme Court would be applicable in this case, though the judge had made the statements to which objections were lodged and not an attorney in jury argument.

Finding no reversible error, the judgment of the trial court is in all things affirmed.


author: BATEMAN, Justice.

text:
    TEXLITE, INC., Appellant, v. H. H. WINEBURGH, Appellee.
    No. 16235.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 4, 1963.
    Rehearing Denied Nov. 8, 1963.

      R. Dean Moorhead, Austin, Ivan Irwin, Sr., Strasburger, Price, Kelton, Miller & Martin, and Hobert Price, Dallas, for appellant.
    Wm. Andress, Jr., Dallas, for appellee.
   BATEMAN, Justice.

Appellee sued for salary alleged to be due him as Executive Vice-President of appellant. A non-jury trial resulted in judgment for appellee, which we find to be without support in the evidence and which must therefore be reversed.

The essential facts are undisputed. Ap-pellee and other members of his family owned practically all of the stock in the appellant corporation. He was president and a member of its board of directors. Prior to December 9, 1959 he and his family sold all their stock, and on that date a meeting of the board of directors was held at which all of the officers and directors resigned and were replaced by nominees of the new owners, except the appellee, who resigned as President but remained a director; and at the same meeting he was elected Executive Vice-President at a salary of $1500.00 per month. The new owners of the corporate stock did not cause the same to be reissued either to them or their nominees until after April 5, 1960. At a special meeting of shareholders on February 27, 1960 appellee was removed as director and the board was directed to abolish the office of Executive Vice-President and dismiss appellee as such officer. On the same date the directors met and voted to abolish the office of Executive Vice-President and authorized the president to inform appellee of his dismissal as an officer and an employee of the company effective March 1, 1960. Appellee’s salary was paid through February 1960.

Appellant’s bylaws provide for election of the directors by the shareholders and specifically provides: “Said Directors shall be elected each year at the annual meeting of the stockholders, to hold office until the next annual meeting or until the election of their successors.”

Another provision of the bylaws was: “The Board of Directors shall, as soon after their annual election as conveniently may be, elect from their number a President, and Vice-President, who shall hold this office until the next annual meeting, and until others are chosen and qualify in their stead. The Board shall also annually elect a Secretary and Treasurer (or one person to serve as both Secretary and Treasurer) who need not be members of the Board, and such other officers, agents and factors as they may deem necessary, who shall hold office until others are chosen and qualify in their stead, subject to removal by the Board at any time, with or without cause.”

Appellee had no notice of, and did not attend, either of the meetings of February 27, 1960.

At a special meeting of the board of directors on May 12, 1960 Frank Cain was elected a director “to fill the vacancy established by the dismissal of H. H. Wine-burgh.”

Appellee sued for salary alleged to be due him as Executive Vice-President for the period from March 1, 1960 to the date of trial, together with a reasonable attorney’s fee under Art. 2226, Vernon’s Ann.Tex. Civ. St. There was neither pleading nor proof by either party that appellee either did or did not perform any services for the corporation after February 29, 1960; or that he did or did not offer to do so; or that he was or was not ready, able or willing to do so.

Appellee filed a motion in this court to strike from the transcript his motion for summary judgment in the trial court, the appellant’s answer thereto, the affidavits attached to the motion for summary judgment and the answer thereto and the order overruling the motion for summary judgment. The motion to strike is in our opinion well taken and is sustained. The objectionable matter was not introduced in evidence on the trial of the case on its merits and none of it has been considered by us in reaching the conclusions herein made.

Appellant’s first contention, embodied in its first seventeen points of error on appeal, briefly stated, is that there was no basis for the judgment for salary for any period after February 29, 1960 because ap-pellee had been dismissed as Executive Vice-President and the office abolished, effective March 1, 1960. This contention is sustained.

In his brief appellee concedes that appellant had the right and power to oust him from his office and to abolish the office, but says that neither of these was accomplished because: (a) the acts of the shareholders in question were beyond the scope of the call of the special meeting, (b) the secretary of the corporation did not find a quorum present and did not certify that notice of the meeting was sent to all shareholders of record, and (c) even “if everything had been regular, there was no power in the shareholders to remove Wine-burgh as a director.” He argues that since the stock he sold had not been transferred on the books of the company, he was still a shareholder “of record” and entitled to notice of the meeting of shareholders; also that, since his removal as a director at an illegal meeting of shareholders was ineffectual, the board meeting was likewise illegal for lack of notice to him, hence his dismissal as an officer and the abolition of his office were likewise ineffectual.

These arguments are in our opinion without merit. It is undisputed, and appellee states in his brief, that on February 27, 1960, when these meetings were held, he owned no stock in the corporation. That being true, we hold that he has no right to complain of any of these apparent irregularities. The provision in the bylaws limiting the right to vote to those “who appear as stockholders upon the records of the company,” and the statutory provisions for notice of meetings and for the preparation of a voting list prior to meetings (Arts. 2.25 and 2.27, Business Corporation Act, V.A.T.S.) are all for the benefit of the corporation. They do not afford to one not a shareholder a right to complain of lack of notice of a meeting, or of the absence of a quorum, or of action taken by the shareholders not within the purview of the call of the meeting. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517; 5 Fletcher Cyclopedia Corporations, Secs. 2005, 2007, 2011.

Art. 2.32 of the Texas Business Corporation Act provides that, unless removed in accordance with the bylaws, each director shall hold office for the term for which he was elected and until his successor shall have been elected and qualified. At common law, it is said, a majority of the shareholders cannot remove a director without cause. 3 Hildebrand Texas Corporations, p. 124. But this is not to say that all of the stockholders, acting in unison, cannot lawfully remove a director, who is not a shareholder, at any time, with or without cause. We do not mean to announce one rule applicable to a majority of shareholders and another rule applicable where the decision is unanimous; it is simply a matter of determining who has the right to complain of such action. If a director be removed by a majority of the shareholders without cause, those of the minority have a right to object on the ground that such action breaches the understanding among shareholders, implicit in the organization of the corporation under the statute, that the directors elected shall remain in office for the term, etc. to represent all the shareholders in managing the affairs of the company. But can the removed director be heard to complain, when it appears that he is neither shareholder in nor creditor of the corporation ? We think not, and hold that under the facts of this case appellee had no right to complain of his removal as a director and that such removal was therefore effective.

Not being a director, then, it was not necessary to notify him of the directors’ meeting at which he was dismissed. 2 Fletcher Cyclopedia Corporations, Sec. 413, p. 265; Anderson Carriage Co. v. Pungs, 127 Mich. 543, 86 N.W. 1040; Badger Oil & Gas Co. v. Preston, 49 Okl. 270, 152 P. 383.

Appellee does not question the power of the directors to remove him. He could not very well • do so in the face of the bylaw which gave the board the authority to remove officers and agents “at any time, with or without cause,” and Art. 2.43 of the Business Corporation Act, giving the board that authority “whenever in its judgment the best interests of the corporation will be served thereby.” Being no longer financially interested in the corporation, and having no vested interest in the office of Executive Vice-President, he cannot be allowed thus to thwart the legitimate desires and purposes of the corporation.

Moreover, it is quite obvious from this record that the acts of the shareholders in removing appellee as a director and directing his dismissal, were ratified by the corporation by consistently refusing to recognize appellee as an officer or director and refusing to pay him his salary, and also by electing his successor on the board of directors at the meeting of May 12, 1960. 14 Tex.Jur.2d 451, et seq.; Hall v. Crawford & Delphenis Co., Tex.Civ.App., 11 S.W.2d 804, err. dism.; 5 Fletcher Cyclopedia Corporations, Sec. 2011.

Appellee also argues that appellant’s defense based upon the abolition of the office for which the salary is claimed, being in confession and avoidance, cannot be raised under a general denial but must be specially pled under Rule 94, Vernon’s Texas Rules of Civil Procedure. We agree with this as an abstract statement of law, but the record in this case shows that ap-pellee waived this objection and consented to the trial of the issue of the efficacy vel non of his dismissal. When appellant’s counsel first stated to the court that he wished to introduce these minutes in evidence counsel for appellee warned the trial judge that he was going to object to the minutes when offered on the ground that there were no pleadings to support it, that they could not properly be offered under a general denial, that this was a matter of confession and avoidance which has to be specially pleaded under Rule 94. The court stated that he would overrule that objection and would admit both the waivers and the minutes of the shareholders’ and directors’ meetings. Counsel for appellee then stated that he wanted to make the further objection that the minutes were not “properly proven”. The court sustained that objection; whereupon counsel for appellant introduced testimony identifying the minute books, the waivers and the minutes in question; and in the course of his cross-examination of this witness counsel for ap-pellee himself offered in evidence “the entire minute books, both the stockholders and the directors and the bylaws of the corporation.” No objection being voiced by counsel for appellant, the minute books and bylaws were admitted in evidence, including the minutes of the meetings of February 27, 1960. Therefore, in view of this evidence and the record as a whole, we hold that the issue as to whether appellant successfully avoided further liability to appellee by the actions taken at those meetings was tried by consent even though not properly raised by appellant’s pleadings, Thomas v. Linder, Tex.Civ.App., 231 S.W.2d 891, err. ref.; Rule 67, Vernon’s Texas R.C.P.

Appellant’s second contention, embodied in its eighteenth, nineteenth and twentieth points of error, is that if appellee is entitled to recover at all his recovery must be limited to salary for one year following either his election to the office of Executive Vice-President or his discharge, because any recovery beyond that period was “barred by the Statute of Frauds.” The reference, of course, is to Art. 3995, V.A.T.S., which provides, inter alia, that no action shall be brought upon any agreement which is not to be performed within the space of one year from the making thereof unless the agreement or some memorandum thereof shall be in writing and signed by the party to be charged therewith.

This position is overruled because: (1) this is not an action on an agreement, and appellee states in his brief that he “has never claimed any contract rights”; and (2) if this were a suit or an oral employment contract not to be performed within the space of one year, the statute would prohibit any recovery, not just for the period after the expiration of one year. In other words, the statute of frauds does not operate like a statute of limitation under which a part of a debt sued for might be barred and another part not barred.

The judgment appealed from includes $5,000 as attorney’s fee, and appellant’s twenty-first point assails this as error. Appellee says he is entitled to such a fee under Art. 2226, V.A.T.S., because the salary sued for is “payable for the performance and availability of the skilled personal services contemplated.” Art. 2226 authorizes a recovery of a reasonable attorney’s fee by a person having a valid claim for “personal services rendered.” This statute is penal in character and must be strictly construed. Van Zandt v. Fort Worth Press, Tex., 359 S.W.2d 893; Burke v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Tex. Civ.App., 363 S.W.2d 392, no writ, hist.; Panhandle Broadcasting Co. v. Cercy, Tex. Civ.App., 363 S.W.2d 792, no writ. hist. Such a construction would not permit us to say that the statute covers a suit for services not rendered but made available and which were “contemplated”. The record is silent on the question of whether appellee actually rendered any services to appellant after March 1, 1960. Appellee does not even allege that he did. The burden was on him to plead and prove that he did so. Having failed to meet that burden, he was not entitled to recover any attorney’s fee under Art. 2226. Appellant’s said last point is sustained.

For the reasons hereinabove set forth the judgment is reversed and, as the case seems to have been fully developed, it is here rendered for appellant.

Reversed and rendered.

ON MOTION FOR REHEARING

Appellee challenges our holding that he waived his objection that the defense of abolition of the office, being in confession and avoidance, could not be raised under a general denial but must be specially pled under Rule 94, and consented to the trial of this issue by himself offering in evidence all of the minute books of the meetings of stockholders and directors as well as the by-laws of the appellant. He states that we have mis-stated the record. In view of this assertion, we have again carefully reviewed the statement of facts and have concluded that we were correct in our original opinion.

In the course of the attorneys’ preliminary statements to the court concerning their respective positions in the case, counsel for appellant stated that he would offer in evidence the waiver of notice and the minutes of a special meeting of stockholders of the defendant corporation held on February 27, 1960; whereupon counsel for ap-pellee asked for what purpose this was offered, to which counsel for appellant replied: “Showing the action of the stockholders in connection with the abolishment of the position of executive vice-president” (S.F. 7, Lines 2-6), whereupon counsel for appellee stated: “We are going to object to it, Judge, on the ground that there are no pleadings to support it; it cannot be offered under a general denial. This is a matter of confession and avoidance which has to he specially pleaded under Rule 94.” (S.F. 7, Lines 7-11).

Appellant then stated further that it was their position that the office of executive vice-president had been abolished by the stockholders and appellee dismissed and discharged as an employee (S.F. 7, Lines 20-24) and appellee, after pointing out that there was no statutory authority for the stockholders to so terminate the office, continued to object that “if they wanted to show under a general denial that he wasn’t elected and so on, they can’t show that they subsequently terminated the office because that is an affirmative defense, which has to be pleaded specifically under Rule 94”. (S. F. 8, Lines 11-15).

Appellant further offered the waiver by the directors of the special meeting held on the same day, and the minutes, to which the same objection was made. (S.F. 8, Lines 16-21).

The court then said:

“Let me back up a little bit and look at Mr. Andress’ objections. All right, I will overrule the objection and I will admit both the waiver and the minutes of the meeting of the stockholders and the waiver and minutes of the directors meeting.” (S.F. 9, Lines 19-23).

Appellee then made the further objection that the minutes were not properly proven, which the court promptly sustained (S.F. 10, Lines 5-7), and in order to meet that objection the appellant produced Frank Cain as a witness, who identified the minute books as having been in his possession and appellant’s counsel offered the same minutes and some additional ones, which the court had identified (S.F., Lines 11-12) and when appellee again objected that they were still not properly proven, because it was not shown who Frank Cain was (S.F. 13, Lines 19-24), the court required further proof, finally practically proving them up himself, and the following then took place:

“Mr. Andress: We will still object to the introduction of these minutes, Your Honor, because they are not properly proven.
“The Court: I will overrule it, I will admit them.
“Mr. Andress: All right, without waiving that I will take the witness on cross examination.” (S.F. 16, Lines 8-13).

Then the court recognized that the minutes of the stockholders and directors meetings of February 27, the only ones affecting the abolition of the office, were already in evidence (S.F. 25, Line 14; S.F. 33, Lines 11, 20).

Appellee then offered in evidence the minutes of December 9,1959, (S.F. 33, Line 23) which had nothing to do with the abolition of the office, but were the minutes of the meeting at which the appellee was admittedly elected to the office with its appurtenant salary of $1,500 per month (S.F. 5, Lines 14-24).

Then after considerable direct, cross, redirect and recross examination of the witness Cain, none of which is material to the question now under consideration, the court said: “Is there any objection to all of the by-laws of the corporation being considered in evidence, you offered some and Mr. Irwin offered some sections?” (S.F. 40, Lines 2-4). To this counsel for appellee replied: “Judge, I was just about to offer the entire minute books, both the stockholders and directors, and the by-laws of the corporation.” (S.F. 40, Lines 5-7). The court then asked appellant’s counsel if he had any objection, and when counsel said he had none the court said: “All right, that might be preferable.”

It is obvious from the above that the only reasonable interpretation that can be given to the record at this point is that this was an offer without reservation or limitation of all of the stockholders and directors minute books and the by-laws of the corporation. It is obvious that the trial court interpreted what was said as an unqualified tender of those records, and it is obvious to us that the court’s statement, “All right, that might be preferable,” meant that he was admitting all of the minute books and all of the by-laws as offered by appellee’s counsel. We so hold.

It will be observed that after first objecting to the introduction by appellant of the minutes of the two meetings of February 27, 1960 on the grounds that appellant had not pled specifically in confession and avoidance, the last two times appellee objected it was only on the ground that the minutes were not properly proven. This in itself tends to show at least tentative abandonment of the objection based on the absence of pleadings, and then when at last counsel for appellee himself unreservedly introduced in evidence all of the minute books, which necessarily included the minutes of the two meetings of February 27, 1960, it was quite obvious that he had abandoned that position and tacitly consented to the trial of the issue as if it had been properly pled.

Counsel for appellee now takes the position in his motion for rehearing that he did not thereby offer the minutes of the meetings of February 27, 1960, that they had already been admitted in evidence over his obj ections, and that all he really introduced were “the remainder of the minute books and of the by-laws, to put in context those minutes which had already been admitted and were a portion of the record over objection,” but the contrary is shown by the record of what he actually said, as above demonstrated.

The technical aspect of appellee’s position is further demonstrated by the following, which is quoted from the statement of facts beginning on Page 47 at Line 16:

“The Court: What does the evidence show with reference to Mr. Wineburgh being a stockholder at the time this meeting was called, that is the stockholders, was held?
“Mr. Andress : Here is the situation, Judge. He was a stockholder of record. The stock certificates issued to him and the members of his family were still outstanding. He had endorsed those and delivered them to Monte Irion, according to Frank Cain. But they had never been canceled on the books of the corporation, and no new stock certificates had ever issued. And accordingly, under Article 1, Section 1 of those by-laws, he and the members of his family were still the stockholders of record.
“The Court: He was still a stockholder of the company?
“Mr. Andress: Yes, sir. And at some time after the Sth of April, 1960, they issued this stock.”

Counsel for appellee made it perfectly clear at the trial that at the time of his dismissal he owned no stock and no beneficial interest in the corporation whatsoever. He also makes this perfectly clear in his brief filed in this court wherein he says:

“Let it be clearly understood that the appellee and his family did not claim any beneficial stockholding interest in the corporation at the time of this purported stockholders meeting. They had signed all of their stock certificates and delivered the stock to Mr. Irion, who in turn delivered it to one Mr. Stevens (S.F. 20), who was identified by Mr. Cain as the chief stockholder of Republic-Odin Corporation which owned Texlite (S.F. 29). The Wine-burghs, therefore, had parted with their beneficial interest, but the transferees had not qualified as stockholders entitled to vote at a stockholders meeting.”

This statement by appellee and the record as a whole show that there was no real dispute in the facts, which makes the case equivalent to one tried on an agreed statement of facts. It was held in Banker v. Jefferson County Water Control & I. Dist., Tex.Civ.App., 277 S.W.2d 130, 135, err. ref. n. r. e., that in such a case the pleadings of the parties are not of material consequence.”

The purpose of pleadings being to apprise the opposing party of one’s position in a case, and the positions of both parties having been fully stated orally to the court at the beginning of the trial, and no obj ection being made until the corporate minutes in question were offered in evidence, it seems quite clear to us that under the circumstances the objection lacked substance and, even if meritorious when made, was waived.

In his second assignment of error in his motion for rehearing in this court ap-pellee says we erred in holding that appellee had been removed as a director, making it unnecessary for him to be notified of the meeting of directors, because the point was neither raised nor briefed by appellant. This contention is overruled. Appellee did not sue for the value of his services as a director and his removal as a director was not an ultimate fact to be proven. He sued for salary as an officer or employee, and the ultimate issue was whether he had been successfully removed as an officer and employee. He says that he was not legally removed as an officer and employee by the Board of Directors because he, a member of the Board, was not notified of the meeting and was not present. Purely as an evi-dentiary matter it was shown that he was not a director, and hence not entitled to notice of the directors meeting, because he had previously been properly and legally removed by the stockholders as a member of the board of directors. It was not necessary for this evidentiary consideration to he raised as a separate point in the brief.

Appellee insists there were numerous other errors committed in our disposition of the case, and after carefully considering all of them we find they are without merit and are overruled.

Appellee also asks us under Rule 45S, T.R. C.P., to make certain additional findings of facts. We have carefully considered each of the matters upon which we are requested to make additional findings and, feeling that they are either immaterial or undisputed, we overrule the request.

The motion for rehearing is overruled.


author: WILSON, Justice.

text:
    UNITED STATES of America, Appellant, v. RAY THOMAS GRAVEL COMPANY, Inc., et al., Appellees.
    No. 4163.
    Court of Civil Appeals of Texas. Waco.
    Nov. 21, 1963.
    Rehearing Denied Dec. 12, 1963.

      Barefoot Sanders, U. S. Atty., Charles D. Cabaniss, Asst. U. S. Atty., Louis F. Oberdorfer, Meyer Rothwacks, Joseph Kovner, Earl J. Silbert, Washington, D. C., for appellant.
    John A. Kerr, Joseph P. Burt, Fay Prescott, Sheldon Anisman, Ft. Worth, for ap-pellees.
   WILSON, Justice.

The questions presented are whether the federal tax lien fixed pursuant to 26 U.S. C.A. § 6321 is inferior, as the trial court concluded, to three other competing claims.

We adopt appellant’s statement of the facts:

On May 31, I960, Seabreez Pools, Inc., by contract agreed to construct a swimming pool for Glen V. Paden. Paden agreed to pay Seabreez $5,000 upon the completion of the swimming pool and in addition to pay for all labor, taxes and insurance, material, swimming pool equipment, equipment rental, and any other costs owing in the construction of the pool. Seabreez began construction of the pool on or about May 31, 1960.

Prior to September 9, 1960, the United States of America assessed and filed liens for federal taxes against Seabreez in the amount of $3,905.70. On that date Sea-breez in writing assigned to W. C. Turner $2,335.34 of the amount it was to be paid under its contract with Paden. This amount was subsequently reduced to $2,142.13. The assignment was accepted in writing by Paden, but was never recorded.

On November 4, 1960, Ray Thomas Gravel Company, Inc., filed an action for debt in the District Court of Tarrant County against Jay W. Ratliff and Sea-breez. On January 5, 1961 that court adjudged that Ratliff and Seabreez were indebted to Ray Thomas Gravel Company, Inc., in the amount of $1,345.01. On November 4, 1960, Ray Thomas Gravel Company, Inc. also filed garnishment proceedings in the District Court of Tarrant County against Paden as garnishee, alleging that he was indebted to Ratliff and Seabreez. The writ of garnishment was served on Paden on November 9, 1960, and he answered, on November 23, 1960, that he was not so indebted. Since Paden, the garnishee, was a resident of Johnson County, the Tarrant County court transferred the garnishment proceeding to the District Court of Johnson County. The latter court concluded that at the time the garnishment proceeding was instituted Paden was indebted to Seabreez under their contract in the sum of $2,286.07 for equipment rental and materials furnished.

After the garnishment proceeding was transferred to the District Court of Johnson County, Paden, on August 17, 1962, filed his bill of interpleader in which he joined Ray Thomas Gravel Company, Inc., Seabreez Pools, Inc., Jay W. Ratliff, W. C. Turner and W. E. Turner, and the United States of America. Prior to this date, the United States had assessed and filed additional tax liens against Seabreez, bringing the total of its tax liens to $7,809.-42, plus interest.

The district court concluded that Paden, indebted to Seabreez under the contract in the amount of $7,286.07, properly filed his bill of interpleader. For the services of his attorney in this proceeding and the garnishment proceeding, the District Court awarded Paden $1,000. It also determined that Seabreez was indebted to the Turners in the amount of $2,142.13, to Ray Thomas Gravel Company, Inc., in the amount of $1,345.01, and to the United States of America in the amount of $7,809.42, plus $1,307.77 interest computed through March 28, 1963. It further ruled that the attorney’s fees, the assignment by Seabreez to the Turners, and the garnishment lien of Ray Thomas Gravel Company, Inc., all had priority over the tax liens of the United States.

We recognize appellant’s contention that the standing of the competing claims in relation to the federal tax lien is largely a federal question. United States v. Acri, 348 U.S. 211, 213, 75 S.Ct. 239, 99 L.Ed. 264. We adopt also the principles announced in United States v. Pioneer American Ins. Co., 374 U.S. 84, 83 S.Ct. 1651, including those that priority is governed by the “first in time, first in right” rule; that under the present facts the federal tax lien arises when it is assessed; and that whether liens created by state law are inchoate or choate, so as to become attached for priority purposes, is tested by whether they are perfected, i. e., they become choate when the identity of the lien- or, the property subject to the lien, and the amount are established.

1. Attorney’s fees.

Upon original joinder in the bill of in-terpleader, appellant was dismissed on its plea of sovereign immunity. It thereafter filed a motion for leave to voluntarily intervene in the same interpleader action, which leave was granted. It then intervened, asserting claim to the fund in the registry.

Rule 43, Texas Rules of Civil Procedure is derived from and is identical in substance to Rule 22(1) Federal Rules of Civil Procedure. The general rule is summarized, 48 A.L.R.2d 192: In the absence of any statutory provisions governing the matter, notably in the federal courts and in Texas, “a disinterested stakeholder who has reasonable doubts as to the party entitled to the funds or property in his possession, and who in good faith interpleads the claimants, is entitled to an allowance for attorneys’ fees.” Nearly 100 federal decisions are cited in support of the text. This has consistently been the rule in Texas. Nixon v. Malone, 100 Tex. 250, 98 S.W. 380, 99 S.W. 403; Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857.

Appellant relies on the holding in United States v. Pioneer American Ins. Co., above, that attorneys’ fees provided for in a mortgage were subordinate to the federal lien for taxes. There the secured note stipulated only that the maker would pay “reasonable” attorneys’ fees in an unliquidated amount, and it was held this portion of the lien was inchoate. In considering the attorney’s fee we are not here dealing with a lien or with a contractual debt or right. In United States v. Liverpool & London & Globe Ins. Co., 348 U.S. 215, 75 S.Ct. 247, 99 L.Ed. 268, the United States was named and served as a party to a state court garnishment proceeding by a bill of inter-pleader. Upon removal to federal court, the United States was dismissed as a party to the interpleader action. It did not then seek to re-enter the suit, but filed a separate complaint for foreclosure of its tax lien. The garnishee’s attorney fee allowed, which was the subject of the holding, was incurred in the garnishment proceedings to which the United States was not properly a party. That holding is applicable here in so far as the attorney’s fee was awarded in connection with the garnishment. It is not applicable to such fee as was awarded for services in the interpleader proceedings.

Appellant was not required to utilize the services and machinery of the state court; it could have protected its rights independently of the interpleader. Indeed, it successfully objected to involuntary subjection to the jurisdiction of that court and its action on the bill, and thereafter voluntarily invoked that same jurisdiction by obtaining leave to intervene. By so seeking and accepting the remedy made available by the law of this state, it became amenable and subject to the law governing that remedy as fully as if it had initiated the action. It will not be permitted to deprive the stakeholder of rights to which he would be otherwise entitled, any more than would any other claimant to the fund. Immedia! My before appellant entered the proceedings as intervenor, the court was authorized to award an attorney’s fee to the stakeholder from the fund. An intervenor takes the case as he finds it. Corzelius v. Crosby Producing & Royalty Co., Tex.Civ.App., 52 S.W.2d 270, 272; Lynn County School Board v. Garlynn, etc. Dist., Tex.Civ.App., 118 S.W.2d 1070, writ ref.

As to this phase of the matter, we are not concerned with priority in time, or the time at which the amount was fixed. The assessment of the fee is in much the same category as the assessment of the stakeholder’s costs of court. Although making no complaint as to court costs, appellant insists in argument that it is entitled to recovery, as a preference, of the entire fund, even as against court costs. In our opinion the trial court properly ordered the fee taxed against and paid from the fund. Wilke v. Finn, Tex.Com.App., 39 S.W.2d 836, 839; Parker Square State Bank v. Triangle Supply Co., Tex.Civ.App., 364 S.W.2d 418, 424, writ ref. n. r. e. The attorney’s fee awarded to the stakeholder for services in connection with the interpleader is to be accorded priority to the appellant’s tax lien claim, and the latter was properly subordinated to it. However, the attorney’s fee fixed by the trial court is for services both in the garnishment and in the inter-pleader proceedings, unsegregated as to the amount attributable to each. This portion of the judgment is severed, reversed and remanded for a new trial. Upon another trial the attorney’s fees awarded should be fixed separately for services in each proceeding, and order of payment of the fee for services in the garnishment made inferior to appellant’s lien claim.

2. Garnishment lien; Ray Thomas Gravel Co., Inc.

Ray Thomas Gravel Co. urges the notice of tax lien was not filed in the proper county. This appellee became a judgment creditor of the taxpayer in the amount of $1345.01 on January 5, 1961. 26 U.S.C.A. § 6323 makes the lien for taxes created by assessment invalid as against a judgment creditor until notice is filed in the office designated by the law of the state in which the property subject to lien is situated. Arts. 6644, 6645 and 5490, Vernon’s. Ann.Tex.Civ.St. designate the office of the Clerk of the County Court of “that county in which the property shall remain” or “be situated” as that in which the notice of federal liens shall be filed. The notice of tax lien was filed in Tarrant County, the principal place of business of the taxpayer, Sea-breez Pools, Inc. No notice was filed in Johnson County, the residence of the debt- or, Paden. No notice was filed in Hill County where the construction work was being done.

It is held that as to tangible, mobile personalty, which may be physically removed from place to place, the filing of the notice in the county of the taxpayer’s domicile satisfies the requirement of the Texas statute. Grand Prairie State Bank v. United States, 5 Cir., 206 F.2d 217. The rule as to situs of a chose consisting of a claim for labor and material furnished, in determining where the property is situated under 26 U.S.C.A. § 6323, is settled in Citizens State Bank of Barstow, Texas v. Vidal, 10 Cir., 114 F.2d 380, 383. It was there held that such property was situated either at the domicile of the taxpayer or at the place where the work was performed. Intangible personal property is generally held to be “situated” under Art. 7153, V.A.T.S.* and Texas Const., Art. 8, Sec. 11, Vernon’s Ann.St, at the domicile of the owner, as at common law. Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1, 243 S.W. 778; Ferris v. Kimble, 75 Tex. 476, 12 S.W. 689.

In our opinion the notice of lien filed in Tarrant County, the domicile of the taxpayer who owned the chose which was then subject to the lien, made the lien valid under 26 U.S.C.A. § 6323 as to the judgment creditor.

The gravel company also says the debt owing by Paden to the taxpayer was contingent, and did not constitute “property or rights to property” to which a lien could attach. 26 U.S.C.A. § 6321 provides a lien for taxes upon “all property and rights to property” belonging to the tax debtor. What constitutes such property or rights is governed by state law. Aquilino v. United States, 363 U.S. 509, 513, 517, 80 S.Ct. 1277, 1280, 1285, 4 L.Ed. 2d 1365, 1368, 1375. An intangible right to receive the contract price, though contingent on performance by the contractor, is a chose which constitutes property, or a right in property. Womack v. Womack, 141 Tex. 299, 172 S.W.2d 307, 308.

Appellee relies on In Re Halprin, 3 Cir., 280 F.2d 407. In that case it was held the contract was wholly executory, and the obligation to pay was qualified and contingent upon performance. If we follow Halprin, however, the court here found that on November 4, 1960 Paden was indebted to the taxpayer in the amount of $2286.07. This determination is unchallenged. The notice of lien in an amount exceeding this sum and in excess of the gravel company’s claim was filed before November 4, I960; and under the court’s finding the lien attached to a debt which was then an unqualified obligation to pay as between Paden and the taxpayer.

The garnishment lien was subordinate to the federal tax lien. United States v. Acri, 348 U.S. 211, 75 S.Ct. 239, 99 L.Ed. 264; United States v. Security Trust & Savings Bank of San Diego, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53; United States v. Liverpool & London & Globe Ins. Co., 348 U.S. 215, 75 S.Ct. 247, 99 L.Ed. 268.

This portion of the judgment is modified to make appellant’s lien claim superior, in order of payment from the fund in the registry, to the claim of this appellee.

3. Assignment to Turner

On September 9, 1960 Seabreez Pools, Inc., assigned in writing to W. C. Turner $2335.34 of the amount to be paid under its contract with Paden. Paden had notice, and made written acceptance of the assignment. Prior to that assignment the federal tax lien had been assessed and notices had been filed in the sum of $3905.70. The Turner assignment was not recorded. The court found notices of levy of the federal tax lien were first served on Paden January 16, 1961, at which time the United States and its supervisory agent had actual notice of the prior assignment to Turner. Ray Thomas Gravel Company also had actual notice of the assignment before institution of garnishment proceedings. At the time the Turner assignment was made, approximately one-third of the construction work under the contract had been completed. It was one-half completed by December 31, 1960, and 98% completed by the end of May, 1961. The court found that at the time of the notice there were sufficient funds due from Paden to the taxpayer to pay both Turner and the amount of the tax lien then existing.

Appellant’s reason for seeking reversal of this portion of the judgment is that the Turner assignment was not recorded as provided by Art. 260-1, V.A.T.S., and was not, therefore, a protected assignment. Its position is that its lien fixed priority both as to taxes assessed prior to the assignment and thereafter. We do not agree.

The enactment relied on does not provide, as do similar statutes in some other states, that such assignments shall be invalid against subsequent creditors, assignees or lienholders, unless the recording statute is complied with. Some such legislation in other states which does so provide, restricts the invalidity to subsequent creditors and assignees “without notice”. See Parker Square State Bank v. Triangle Supply Co., Tex.Civ.App., 364 S.W.2d 418, 421, 423, writ ref. n. r. e. The Texas statute, Sec. 6, states the quality of constructive notice imparted by compliance with it: subsequent creditors and assignees shall be “conclusively” deemed to have received notice of the assignment from time of filing. This statutory method of affording protection to an assignee is permissive. It is not exclusive. Its function and purpose is outlined by Justice Norvell in Scarborough v. Victoria Bank & Trust Co., Tex.Civ.App., 250 S.W.2d 918, writ refused.

Prior to the enactment, recording of such an assignment was not authorized, and the record of it was held to give no notice of its existence. Burnham v. Chandler, 15 Tex. 441, 443. The Texas rule as to priority among assignments was stated in Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S.W. 621. In Clark v. Gillespie, 70 Tex. 513, 8 S.W. 121, it was held that an assignment by the contractor to a materialman of a portion of the amount owing by the owner under a construction contract, with notice to the owner, was valid “against all subsequent liens fixed upon the property” under existing mechanic’s lien law; and the assignment had the effect of withdrawing the fund from the further control of the owner, and giving the assignee “not only a lien upon the fund, but a property in the fund itself.” The distinction between the effect of a statute which imports notice by recordation, and actual notice of assignment to subsequent assignees of a judgment (under a statute which made recordation of a written transfer “full notice and valid and binding” on persons subsequently dealing with it) is illustrated in Smith v. Texas & P. Ry. Co., Tex.Civ.App., 39 S.W. 969, 972. It was said the statute did not affect validity of an assignment which did not comply with it, although such assignment would not he effective against a subsequent purchaser “without notice of the former assignment.”

In no state or federal case cited by appellant, or which we have examined (in which it was held an assignment not in compliance with Art. 260-1 was ineffective as to subsequent creditors, assignees or lien-holders) was there any actual notice to the subsequent creditor, assignee or lienholder of the prior assignment.

In our opinion, actual notice to appellant of the prior assignment to Turner was fully as effective to give Turner s assignment priority over the federal tax lien subsequently attaching as would have been the constructive notice provided by the statute. Although appellant’s lien claim based on the amount of $3905.70 existing before the Turner assignment was made is obviously prior and superior to Turner’s rights, it is inferior thereto as to the amounts of liens fixed after the assignment of which appellant had actual notice. This portion of the judgment is affirmed. Costs are taxed one-sixth against appellee, Ray Thomas Gravel Co., Inc., and five-sixths against appellant.


author: POPE, Justice.

text:
    Juanita WILSON, d/b/a Burkeshire Courts, et al., Appellant, v. Geneva DUEVER et al., Appellees.
    No. 14151.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 20, 1963.
    Rehearing Denied Dec. 18, 1963.

      Clinton G. Brown, Jr., San Antonio, for appellant.
    Arch B. Haston, San Antonio, Kelly, Hunt, Cullen & Mallette, Victoria, for ap-pellees.
   POPE, Justice.

This suit was instituted by Geneva Due-ver, joined by her husband, David Duever, suing individually and as next friend for the use and benefit of Stephen Barnhart, her minor son, hereinafter referred to as Stephen, complaining of Juanita Wilson, a feme sole, doing business as Burkeshire Courts, for damages for injuries to Stephen, and expenses incurred in connection with such injuries. The injuries were received by Stephen when the defendant’s employee was putting chlorine tablets into the skimmer of a swimming pool and suddenly this chlorine “back fired” out of the skimmer and got on Stephen. The trial was to a jury and resulted in judgment in favor of plaintiffs in the sum of $5,750.00, from which judgment Juanita Wilson, d/b/a Burke-shire Courts, has prosecuted this appeal. Appellant’s only point is that the trial court erred in overruling her motion for judgment non obstante veredicto.

The jury found, among other things, that appellant (1) on the occasion of the accident, acting through Warren David Tuorila, failed to handle chlorine tablets in a safe and prudent manner, having due regard for the safety of customers on the premises, that such failure was negligence'and a proximate cause of the occurrence in question, and (2) failed to maintain the equipment used to handle chlorine tablets on her premises in a reasonably safe condition with due regard for the safety of customers upon said premises, and that such failure was negligence and a proximate cause of the chlorine spraying up out of the skimmer, into which it had been placed, and injuring Stephen.

The evidence shows that appellant, Juanita Wilson, d/b/a Burkeshire Courts, maintained a swimming pool upon the premises of the courts for the benefit of her tenants. In addition thereto, the swimming pool was open to the public for a fee of fifty cents per person, and the public was invited to use and enjoy the facilities provided at this price.

On May 20, 1961, Stephen, a minor twelve years of age, paid his fifty cents and was a guest and invitee at the swimming pool. Warren David Tuorila, also known as W. D., was a life guard and attendant at the swimming pool. W. D. discovered that it was necessary to add some chlorine to the water in the pool. He had everybody get out of the pool and began to add chlorine "by placing chlorine tablets in what is called .a skimmer from which the water would drain into and through the filter and thence be pumped back into the pool. After he had put some of the tablets of chlorine into the skimmer a mist was blown back through the •skimmer and some of this mist went across the pool and got on Stephen and injured him. W. D. described how this happened in the following manner: After he discovered the need for more chlorine in the water he went up to the office and told them he was going to take everybody out of the pool for maybe fifteen or twenty minutes and not let anybody else in. He went back to the pool with his chlorine and got everybody out, and administered the chlorine, and then it blew back out of the filter. He put the chlorine “into the skim drain. It’s the drain that’s on the top, that the top water drains off into.” W. D. further testified as follows:

“Q Then what happened?
■“A And then the first dose went down okay, and the only thing I can figure out, that the dose that went down blew back up, but as I was fixing to drop a few more tablets down I heard water that sounded like it was rushing and fumes, water sprayed back out of the filter.
■“Q Was this water spray, how would you describe it? Was it a general mist, or was it a —
41A It was just a general mist, yes, sir.
‘Q Did it seem to come out with great force ?
‘A Yes, sir, it did. It was — it was back like a — just a back. It was just a back flush, that’s what it was.
‘Q When you started to put this chlorine in was the pump running at the time?
‘A Yes, sir. It had to be.
‘Q You could hear it running?
'A Yes, sir.
‘Q Well, after administering these — you say you put two, you put two applications of chlorine in there ?
‘A Yes, sir. * * *
‘Q Did you hear the pump about this time? Did the pump stop or did it continue to run ?
‘A It sounded like it was winding like a car will wind when you are at top speed.
‘Q I don’t quite understand what you mean there. Do you mean a car with a low battery or something?
‘A No, sir. It sounded like it was pulling, had too much of a pull on it, or something.
‘Q Did the motor stop ?
‘A It did temporarily, and then it started back up. Just an overload. * * *
‘Q W. D., had you ever had any experience or any difficulty with this filtering system, or this pump, at the pool before?
A Getting stopped up quite a bit. That was because of the amount of people that was in it. The lint and filter and stuff that was on it.
“Q How often did that occur ?
“A We might have to clean it out once a week or something like that.
“Q Had you ever had any experience with the pump stopping before or slowing down, like you said it was doing?
“A No, sir, none at all. * * *
“Q Had anything like this backfiring of this water and chlorine ever occurred before there while you were present?
“A Not while I was present, no, sir.* * *
“Q Have you ever complained to Mr. Wilson about this pool, or this pump, or anything about it at all ?
“A I told him there was too many people in the pool for the pump to handle.”

The witness George Hagy, Jr., testified that he was in the pool service, repair, and maintenance business, that he had been in the pool business for about eight or nine years and had never heard of anything happening such as was described by W. D. There was no evidence that such an occurrence had ever happened before. Hagy further testified that W. D. by removing the cover and putting the chlorine tablets into the skimmer was following the usual and customary method of putting chlorine into the water in the swimming pool. The evidence shows that there was no inherent vice in the chlorine tablets.

It appears that Mrs. Wilson was the proprietor and operator of the swimming pool, Stephen was her business invitee and was injured in the manner set forth above. The question is, Did Mrs. Wilson owe Stephen the duty to guard against his being injured while upon her premises, in the manner in which he was injured? It appears to us that she owed no such duty.

In the very recent case of Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368, the Supreme Court, speaking through Justice Greenhill, stated:

“As stated by this Court in [Robert E.] McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), it would be simpler and perhaps preferable to treat these matters under ordinary negligence and contributory negligence; and many Texas cases-have been decided on that basis. This-view is urged by many able scholars- and text writers. But this choice was-afforded this Court in McKee and rejected because of stare decisis; that is,, that the concepts of ‘no duty’ and voluntary exposure to risk had theretofore become established in this State-
“The ‘no duty’ doctrine is this: the-occupier of land or premises is required', to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to-inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). His duty-is to protect his invitee from dangers-of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise-of ordinary care. If there are dangers-which are not open and obvious, he is-under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom and to warn them thereof.”

The trial court submitted two items-of negligence to the jury. In reply to Questions Nos. 1 to 3, the jury found that Warren David Tuorila failed to handle-chlorine tablets in a safe and prudent manner, having due regard for the safety off customers on the premises, and that such failure was negligence and a proximate-cause of the injuries sustained by Stephen.

There is no evidence in the record to support these findings. W. D. testified that he simply placed a handful of chlorine tablets in the skimmer and then put some more in. There is no evidence that if he had laid these tablets in a lesser quantity or in a more gentle manner in the skimmer, the usual place of applying them, there would not have been any mist arising out of the skimmer. There is no evidence even suggesting that W. D. should have foreseen that his placing of the handful of tablets into the skimmer could cause the mist to shoot up out of the skimmer.

In answer to Questions Nos. 4 to 6, the jury found that on the occasion of the accident appellant failed to maintain the equipment used to handle chlorine tablets on its premises in a reasonably safe condition with due regard for the safety of customers upon the premises, that such failure was negligence and a proximate cause of the occurrence in question.

There is no evidence to support these findings. The occurrence in question, of course, is the mist shooting up out of the skimmer and getting on Stephen and injuring him.

If it may be said, under all of the facts in this case, that Mrs. Wilson, or her employee, W. D. Tuorila, knew, or after a careful inspection of the premises should have known, that there was danger of this mist shooting up out of the skimmer and getting on Stephen when W. D. placed the chlorine tablets in the skimmer, then she would have owed the duty to Stephen to protect him from or warn him of this danger.

The evidence shows that never before had such an unusual occurrence happened. There was nothing to show what caused the unexplained phenomenon. The only thing that W. D. could figure out was that the motor stopped and then started again, and that this might have caused the mist to arise from the skimmer. It is not shown that the motor or pump was connected in any way with the skimmer. The evidence vaguely shows that the top water drained into the skimmer and then through the filter; that after the water had thus drained through the filter it was sucked up out of the filter tank by the pump and forced back into the pool. The evidence does show that appellant had been told and she realized that the filter and pump were inadequate to keep the pool clean with so many people swimming in it, but there was nothing to indicate that by reason of the inadequacy of the filter and pump, chlorine spray might shoot up out of the skimmer. The only result of the inadequacy of the filter and pump was that the filter had to be cleaned of lint and other substances too often, and that it was not keeping the pool as clean as it should. There is nothing to show that any amount of inspection of the premises by appellant would have revealed the danger of chlorine mist spraying up out of the skimmer. Appellant had no knowledge of this danger and had no reason to believe it might happen, and therefore she owed no duty to Stephen to protect him from this chlorine mist.

To hold that appellant should have protected Stephen from the mist whether or not she knew or should have known of the danger, would be to hold the occupier of land liable for injuries sustained by invitees, though such occupier be without fault and fix his liability simply because he was the occupier of the premises. Camp v. J. H. Kirkpatrick Co., Tex.Civ.App., 250 S.W.2d 413.

In Corpus Christi Speedway, Inc. v. Morton, Tex.Civ.App., 279 S.W.2d 903, the plaintiff was driving in an automobile race on defendant’s race track when his car was in an accident. He got out of the car and was hit by a bottle thrown from the grandstand. On his way back to get in his car, for protection from bottles, he was injured when his car was struck by another racing car. The trial court’s judgment in favor of the plaintiff was reversed and rendered in favor of the defendant by the Court of Civil Appeals. In its opinion by Justice Norvell, the Court said:

“However, although it appears that the track had been in operation some three years prior to appellee’s injury, there was no evidence of a general fight or altercation having broken out among the spectators upon any occasion, nor was there evidence that any one had been hit with a bottle or that one had ever been thrown prior to the incident giving rise to this lawsuit.
“ * * * In the present case, the throwing of the bottle is largely unexplained. No prior altercation or difficulty was shown. * * * With reference to a similar situation, the Supreme Court of Virginia, in Whitfield v. Cox, 189 Va. 219, 52 S.E.2d 72, 75, said:
“ ‘ * * * The duty on the defendant was to use reasonable care to protect the plaintiff from dangers that could reasonably be anticipated. The evidence does not, we think, establish a breach of that duty or any causal connection between such an alleged breach and the plaintiff’s injury.’ ”

In Houston Lighting & Power Company v. Brooks, 161 Tex. 32, 336 S.W.2d 603, the Court said:

“The record wholly fails to show any facts which would be a basis for holding that petitioner could reasonably anticipate the time for pouring concrete on top of the second floor. Of course petitioner knew the location of the lines in relation to the building, but since they were properly located in accordance with the National Electrical Safety Code the knowledge of such location in itself gave no reason to anticipate danger to respondent. Respondent wholly failed to establish any reason why petitioner should anticipate the injury of which he complains.
“If the reason to anticipate injury is not established, then no duty arises-to act to prevent such an unanticipated, injury. * * *
“There is no evidence that petitioner in this instance had actual knowledge of probable danger to respondent, and there are no facts in the record', upon which to base constructive notice-to petitioner. To hold petitioner liable under the facts of this case we would necessarily have to arbitrarily impute foresight to petitioner. It was-said in Texas & Pacific Railway Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 163:
“ ‘ * * * a party should not beheld responsible for the consequences, of an act which ought not reasonably to have been foreseen. * * * it would seem that there is neither a legal nor moral obligation to guard! against that which cannot be foreseen,, and under such circumstances the-duty of foresight should not be arbitrarily imputed.’
“Also, it was said in the case of City of Dallas v. Maxwell, 248 S.W. 667, 670, 27 A.L.R. 927, (Tex.Com.App.. opinion, approved by Supreme Court) :.
“ ‘In this state it is now a settled! doctrine that anticipation of consequences is a necessary element in determining not only whether a particular act or omission is actionably negligent, but also whether the injury complained of is proximately caused by such act or omission.’ ”

See also Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249; St. Louis, S. F. & T. Ry. Co. v. Gore, Tex.Civ.App., 69 S.W.2d 186; McFerren v. Brae Burn Country Club, Tex.Civ.App., 274 S.W.2d 122.

The evidence in this case shows that the defendant was using the customary type of chlorine tablets to maintain her pool in a. sanitary condition; that these tablets in themselves were not inherently dangerous. That the life guard had checked the chlorine content of the pool and found it to be low. Based on this chlorine check, he knew that a certain amount of chlorine tablets were necessary to bring the chlorine count up to where it should be. The life .guard had a tube or measuring device in which he measured out the necessary amount of chlorine tablets. He then took these to the pool and put some tablets in the skimmer and held them there by hand. The evidence further showed that this was the customary manner of administering chlorine tablets to a pool. After he had laid a few tablets in the skimmer he dropped a few more in, another application, and at that time there was a “kickback” or back-flush, which was sudden, .and which the witnesses stated was in the form of a mist. This back-flush or kick-hack is entirely unexplained. All of the ■witnesses familiar with appellant’s pool, as well as other pools, testified that they had never known of such a thing to happen previously. The pool service man, with eight or nine years experience in and around pools, stated that he had never .known such a thing to occur.

Neither appellant nor W. D. had .any way of knowing or anticipating that such an occurrence would happen; therefore, there was no legal or moral obligation on them to guard against it. Under these circumstances, the duty to foresee should not be arbitrarily imputed to appellant or to W. D. In other words, without such knowledge there is no duty, and ■consequently no breach of duty, and therefore no liability.

The trial court erred in not granting appellant’s motion for judgment non ob-stante veredicto. The judgment of the trial court is reversed and judgment here Tendered that appellees take nothing.

POPE, J., concurs in the result.