author: YOUNG, Justice. NYE, Chief Judge

text:
    Larry BEALL, Jr., et al., Appellants, v. LO-VACA GATHERING COMPANY et al., Appellees.
    No. 980.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 16, 1975.
    Rehearing Denied with Dissenting Opinion Dec. 31, 1975.

      James E. Hope, Hope, Henderson, Hoh-man & Georges, San Antonio, for appellants.
    S.E. Dyer, Dyer, Redford, Burnett, Wray & Woolsey, M. W. Meredith, Jr., Corpus Christi, Marvin C. Hanz, San Angelo, for appellees.
   OPINION

YOUNG, Justice.

This combination summary judgment and plea of privilege case arose from injuries sustained by a sixteen year old motorbike rider when he was wrested from his moving motorbike upon his hitting a cable strung across a private road about neck high between two utility poles. The action originated as one for personal injuries brought by Larry Beall, Sr., individually and as next of friend of his minor son, Larry Beall, Jr., against defendants Lo-Vaca Gathering Company, Edwin Wilde, Walter Wilde individually and as Independent Executor of the Estate of Fenton A. Wilde, Burkie L. Harlow and Jimmy Hall.

By judgment rendered February 28,1975, the trial court granted Lo-Vaca’s motion for summary judgment and sustained pleas of privilege filed on behalf of all other defendants, residents of Tom Green County, except for Hall. He filed only a general denial and the cause against him was severed and retained for trial in Nueces County. The Bealls appeal from that judgment.

On February 27, 1972, the younger Beall was injured while riding his motorbike west to east down a “turn row” on the property of Edwin Wilde. Young Beall was attending a motorbike contest being held on an abandoned airstrip owned by Walter Wilde and leased to Harlow and Hall for motor vehicle and motorbike races. The property upon which the racing events were being held is directly adjacent to that owned by Edwin Wilde and, in fact, portions of the abandoned airstrip extend onto Edwin Wilde’s property. The airstrip itself was shaped like an inverted “N”, with the parallel sides running from north to south. Running north and south parallel and near to the westernmost runway is a hard top surface known as Cemetery Road. The designated access point to the race facilities extends from Cemetery Road to the southern edge of the runway. However, the “turn row” is also open to Cemetery Road along the north edge of the runway. There was testimony that the “turn row” was also used to gain access to the race area. The “turn row” upon which young Beall was injured was east and west across the northern edge of the parallel portion of the runway approximately on the border between the adjacent tracts owned by the Wildes.

In July or August of 1970 the Concho Valley Electric Company erected two 32' utility poles in approximately the center of and with one pole on each edge of the “turn-row” about 40-50' apart to supply electricity to grain storage bins owned by Edwin Wilde. Thereafter on October 21, 1970, Lo-Vaca leased ten acres of land from Edwin Wilde for the purpose of storing and welding pipe. The ten acres included the northern edge of the runway and that portion of the “turn row” upon which the utility poles were located. In order to allow large trucks to gain access to the storage and welding areas Lo-Vaca graded the “turn row” and spread caliche over the graded surface. To deter truck traffic from going between the poles, Lo-Vaca while in possession of the ten acres strung a wire or cable between the utility poles approximately 40"-50" off the ground. It was this cable which appellant Larry Beall struck and which was the cause of his injuries. The lease expired in April of 1971 at which time Lo-Vaca returned possession of the ten acres to Edwin Wilde.

The appellant alleges two points of error: (1) that the trial court erred in granting defendant Lo-Vaca’s motion for summary judgment; and (2) that the trial court erred in sustaining the pleas of privilege of defendants Edwin Wilde, Walter Wilde individually and as Independent Executor of Estate of Fenton Wilde and Burkie Harlow. A determination of the merits of appellants’ first point of error will also determine appellants’ second point of error.

More precisely, appellants’ first point of error is that the trial court erred in granting Lo-Vaca’s motion for summary judgment because Lo-Vaca did not prove as a matter of law that there was ho genuine issue of fact as to one or more essential elements of plaintiffs’ cause of action. In its motion for summary judgment Lo-Vaca alleged that the appellant had proven no cause of action against it. The basis for this motion was that Lo-Vaca had vacated the premises some eight months before the accident in question and that Lo-Vaca conclusively proved that their landlord and co-appellee, Edwin Wilde, was advised of the cable between the poles and readily accepted the property in this condition. Lo-Vaca, therefore, contends that as a matter of law their liability to anyone coming onto the property ceased upon the acceptance of the property by the landlord Edwin Wilde.

The appellant relies primarily on the case of Strakos v. Gehrig, 360 S.W.2d 787 (Tex.Sup.1962). In Strakos a contractor was employed by the State to widen and improve an eight mile section of road. After completing the improvements the contractor left several open post holes covered by weeds along an old fence line. The contractor’s work was accepted by the county. Thereafter the appellant Strakos fell into one of these unmarked holes and suffered severe injury. In its decision the Supreme Court rejected the decision of the lower court which relied on the case of T. J. Mansfield Const. Co. v. Gorsline, 288 S.W. 1067 (Tex.Comm’n App.1926) for the proposition that a contractor owed no duty to third persons for injuries suffered on property where the contractor had worked, once the property was returned and accepted by the other contracting party. In its holding in Strakos the Supreme Court rejected the “accepted work” doctrine and held that a contractor remained liable for negligent work done or unsafe conditions left on premises even after the premises are accepted by the other contracting party.

Strakos does not mean, however, that a contractor becomes strictly liable to third parties for any negligent work or defective condition left on the premises after it had been accepted. To the contrary, this decision only brings contractors within the general rules of tort litigation.

In that regard, it was stated by the Supreme Court at page 791 in the Strakos decision:

“. . .in certain cases, factors or conditions may arise after the completion of the work, including the lapse of a substantial period of time, such as would compel a finding that independent causes had intervened to produce the injury.

The basic holding of Strakos as it applies to this case is that one who is in temporary possession and control of land, such as a contractor or lessee, will not have all liability for injury caused by acts done to the land terminate upon relinquishment of the land.

Sections 352 and 353 of the Restatement of the Law, Torts (2d), clearly set out the liability one has upon transferring land. Section 352 sets out the transferor’s liability for dangerous conditions existing at time of transfer:

“. . .a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.” (Emphasis supplied.)

Section 353(1) is an exception to Section 352 where there are undisclosed dangerous conditions known to the vendor:

“(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if
(a) the vendee does not know or have reason to know of the condition or the risk involved, and
(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.” (Emphasis supplied.)

Further, the holding of the Court of Appeals for the 5th Circuit in United States v. Inmon, 205 F.2d 681 (1953) is applicable to this case. In Inmon the court held that the liability of a grantor of land to the grantee or third persons for the dangerous or defective conditions of the land ceased upon the transfer of possession and control. This rule is subject to the qualification that the grantee must disclose any latent defect or dangerous condition he knows or should know will not be discovered by the grantee.

For all practical purposes Lo-Vaca stood in the same position as a grantor of this land when it returned the land to their lessor, Edwin Wilde. During the six-month period preceding the termination of their lease Lo-Vaca had the exclusive right of possession, use and control over this land. Upon termination of the lease, therefore, it reconveyed the land to Edwin Wilde in much the same manner as a grantor would convey land to his grantee.

In applying the holding of Strakos, In-mon and the above quoted section of the Restatement to the facts of this case, it is clear that the trial court properly granted appellee Lo-Vaca’s motion for summary judgment. This is so even though under the Supreme Court’s ruling in Strakos, Lo-Vaca could not escape liability for the offending instrumentality simply by returning possession of the land to Edwin Wilde; and under Sections 352 and 353 of the Restatement Lo-Vaca had a duty to disclose this instrumentality to Edwin Wilde.

Lo-Vaca’s summary judgment proof consisted of eighteen excerpts from the deposition of appellee Edwin Wilde. Some of Edwin Wilde’s deposition testimony is as follows:

"Q Well, let’s back up to fall of 1970 when Lo-Vaca first came upon your premises. Can you give me some idea in times of months after their arrival that you first became aware that there was that horizontal cable that we have been talking about?
A If I guess 8 months . . .
A I’d say 3 months. That’s my estimation. .
Q Yes, sir. Then your answer would be that the cable was put across the southern and northern utility poles sometime in the year 1970.
A End of 1970.
Q When you in late 1970 noticed that the horizontal cable between the two poles was erected, what, if anything, did you do?
A Not anything. It protected lives with them going around it. .
Q Then you’re saying that you did not make any protest, official or unofficial, to anybody?
A No, sir.”

Appellee Edwin Wilde further stated that Lo-Vaca cleaned up the land to his satisfaction and in April or May of 1971 left the property and never returned.

This evidence offered by appellee Lo-Vaca in support of its motion for summary judgment clearly shows that as a matter of law, Lo-Vaca had discharged its duty of disclosure to Edwin Wilde and upon vacating the premises in April or May of 1971 terminated any liability it had for constructing the horizontal cable. Its liability ceased as a matter of law at this time.

As our Supreme Court pointed out in Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.Sup.1970), the question on appeal in a summary judgment case “is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim a cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action.” See also Schrader v. Garcia, 516 S.W.2d 690 (Tex.Civ.App.—Corpus Christi 1974, no writ); Holzapfel v. Brueggman, 404 S.W.2d 916 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.).

When a defendant moves for summary judgment he must show as a matter of law, that he will prevail since there is no genuine fact issue as to at least one essential element of plaintiff’s cause of action. The defendant must negate the plaintiff’s possibility of recovery by offering summary judgment proof which shows that the defendant is entitled to prevail as a matter of law. Therefore, the defendant must show uncontrovertedly that the plaintiff cannot win the lawsuit because not only will he be unable to prove a recovery element in his cause of action but also that as to that element the defendant must prevail. Glenn v. Prestegord, 456 S.W.2d 901 (Tex.Sup.1970).

The appellant here has totally failed to prove that the negligence, if any, of the appellee Lo-Vaca was the proximate cause of his injuries. There is absolutely no evidence that Lo-Vaca failed to disclose the existence of the offering instrumentality to its landlord Edwin Wilde. Therefore, Lo-Vaca’s liability ceased upon acceptance of the land by Edwin Wilde and any cause of action that the appellant has, if any, must lie against the owner of the land, Edwin Wilde.

Appellants’ summary judgment proof consists of the sworn affidavits of Larry Beall, Jr. and Larry Beall, Sr. Taken in a light most favorable to these appellants, these affidavits state only that Lo-Vaca leased the property from Edwin Wilde and that Lo-Vaca constructed the cable across the road. They fail to state any basis upon which this Court can find Lo-Vaca liable after it returned the land to Edwin Wilde. Additionally, there is no conflicts between appellants’ affidavits and appellee Lo-Vaca’s summary judgment proof from which an inconsistency over a fact issue is raised. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). For the reasons set out above appellants’ first point of error is therefore overruled.

Appellants’ second point of error is also overruled because appellant has failed to meet the requirements of Tex.Rev.Civ. Stat.Ann. art. 1995 § 4 (1964). In order to maintain venue under § 4 of Art. 1995 there are three essential elements which must be established by the plaintiff. First, the plaintiff must show that one of the defendants resides in the county where suit is brought. Second, the plaintiff must allege a joint cause of action between a resident or a cause of action so intimately connected with the cause of action against the nonresident defendant that the two may be joined under the rules intended to avoid multiplicity of suits. Third, the plaintiff must show a cause of action against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936, opinion adopted); Socony Mobil Oil Co., Inc. v. Southwestern Bell Tel. Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). As was stated earlier in this opinion the appellant has not established a cause of action against the resident defendant Lo-Vaca. Therefore, the trial court was correct in granting the pleas of privilege of appellees Edwin Wilde, Walter Wilde, individually and as independent executor of the estate of Fenton Wilde and Burkie Harlow.

The judgment of the trial court is therefore affirmed.

NYE, Chief Judge

(dissenting on motion for rehearing).

I respectfully dissent. Appellant in his motion for rehearing points out the error of this Court in not recognizing that the Supreme Court of Texas has not adopted the Restatement of Torts, Sections 352 or 353, and the error of this Court in not recognizing that the Supreme Court has expressly held contrary to the holdings of this Court. A general statement of the facts exists in the majority opinion and, therefore, a detailed statement of the facts becomes unnecessary. However, a short summary of the pertinent facts is set forth as follows.

Lo-Vaca Gathering Company (hereafter referred to as Lo-Vaca) leased ten (10) acres of land from Edwin Wilde on October 21, 1970. Lo-Vaca’s purpose for leasing the property was for storing and welding pipe. While on the property, Lo-Vaca strung a cable or wire between two utility poles for the purpose of keeping trucks from driving between the two poles. The lease expired in April, 1971. Lo-Vaca returned the property to the owner with the wire still strung between the two utility poles. It can be assumed for summary judgment purposes that the wire created a dangerous situation to users of the land.

Wilde accepted the property in this condition and was aware of the existence of the cable between the two utility poles at the time he accepted the property back from Lo-Vaca. After Wilde had come into possession of the property, the plaintiff Larry Beall, Jr. was injured when he struck the wire cable while riding his motorbike on Wilde’s property.

This Court in our original opinion affirmed the trial court’s action in granting Lo-Vaca’s motion for summary judgment and held that: 1) Lo-Vaca, upon transferring the property back to Wilde, had a duty to disclose to Wilde the existence of the “dangerous condition”; 2) that Lo-Vaca had satisfied that duty; and, 3) that in view of such disclosure by Lo-Vaca and the acceptance of the property by Wilde, Lo-Vaca’s liability to the plaintiff ceased as a matter of law at that time. I am now convinced that we were in error.

The law in Texas raises a question with respect to the legal effect given by Wilde’s knowledge or awareness of the existence of the dangerous condition at the time he accepted the property back. The majority continues to assert that the existence of such factors (as knowledge and acceptance) causes Lo-Vaca’s liability to plaintiffs, to cease as a matter of law at the time Wilde took possession of the property. The rule in Texas is that such factors do not cause Lo-Vaca’s liability to cease, as a matter of law. On the contrary, such factors are material only to the fact question of whether it was Lo-Vaca’s creation of the dangerous condition, or Wilde’s negligence in accepting the property in this condition and failing to remedy the condition, that was the proximate cause of the plaintiff’s injuries.

The majority applies Sections 352 and 353 of the Restatement of the Law of Torts (Second) and holds that Lo-Vaca was under a duty to disclose the dangerous condition (wire strung between the poles) to Wilde at the time Wilde retook possession, and having done so, its liability to plaintiff terminated ipso facto as a matter of law.

Although I believe that the law as set out in the Restatement of Torts, Sections 352 and 353, should be the law, I must also recognize the rule that when a principle, rule or provision of law has been decided by the highest court of the state having jurisdiction of the particular case, such decision is binding precedent on courts of lower rank when the same point is again presented in a subsequent suit. Swilley v. McCain, 374 S.W.2d 871 (Tex.Sup.1964); Morriss-Buick Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889, 890 (1938, opinion adopted); Metal Structures Corporation v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App.—Amarillo 1971, writ ref'd n. r. e.).

The Supreme Court of Texas has not as yet adopted the Restatement of Torts, Sections 352 or 353 as the law in Texas. In fact, it has actually held contrary to it. Section 352 of the Restatement of Torts (Second) is like the “accepted work” doctrine. This doctrine which is yet to be adopted in Texas is to the effect that although a contractor is found to have performed negligent work or left premises in an unsafe condition and such negligence is found to be a proximate cause of injury, he must nevertheless be held to be immune from liability, solely because his work has been complete and has been accepted in the unsafe condition. See T. J. Mansfield Const. Co. v. Gorsline, 288 S.W. 1067 (Tex.Comm’n App.1926). Such rule, like Section 352 of the Restatement, is not the law in Texas yet.

The “accepted work” doctrine was specifically overruled by the Supreme Court in an opinion written by Justice Norvell in Strakos v. Gehring, 360 S.W.2d 787 (Tex.Sup.1962). There, the court held that the fact that one who assumes control over a dangerous condition left by a contractor may be liable for injuries resulting therefrom does not mean that he who creates the danger should escape liability. The Supreme Court held that the question of liability should be determined or controlled by the fact of causation (foreseeability). The court stated: “Absence of proximate cause is not established as a matter of law simply because premises in a dangerous condition or a contractor’s defective work have been accepted.” (Emphasis supplied.)

The Supreme Court in Strakos, by expressly rejecting the “accepted work” doctrine, refused to follow and made applicable the rule of law as set out in Section 352 of the Restatement of Torts (Second).

The majority, although agreeing that under the Strakos ruling that Lo-Vaca could not escape liability for the offending instrumentality simply by returning possession of the land to Wilde, added the exception that under the Restatement of Torts (Second), Sections 352 and 353, Lo-Vaca had a duty at the time of transferring the property back to Wilde to disclose any dangerous condition existing, and having done so, its liability ceased as a matter of law at that time. Lo-Vaca’s disclosure may have mitigated its damages, or the disclosure may have raised the fact issue that the proximate cause of plaintiff’s injuries rests with Wilde, the landowner, but such disclosure did not exonerate Lo-Vaca from its original mischief as a matter of law.

The factor of disclosure (or awareness) of the dangerous condition by the lessor (Wilde) and its effect was discussed in the Strakos opinion. There the court said:

“The employer’s (Wilde’s) awareness of the danger has no bearing on the contractor’s (Lo-Vaea’s) duty of care. It could, of course, be material to the question of proximate cause or to the employer’s negligence in accepting the work and failing to remedy a dangerous condition.”

It is clear from the Strakos opinion that the Supreme Court did not intend that someone in Lo-Vaca’s position would be relieved of all liability merely by disclosing to Wilde the existence of the dangerous condition, but I believe that the Supreme Court intended that such disclosure or awareness would be a factor in considering the question of proximate cause; that is, was it Lo-Vaca’s negligence in erecting the cable between the two utility poles that was a proximate cause of plaintiff’s injuries; or was it Wilde’s negligence in accepting the property with the dangerous condition and failing to remedy such dangerous condition before plaintiff became injured, that was a proximate cause of plaintiff’s injuries?

The majority relies on the United States Court of Appeals case [United States v. Inmon, 205 F.2d 681 (CCA 5th Cir. 1953)] as controlling the law under the facts of this case. The Inmon case approves the general rules in Sections 352 and 353 of the Restatement of Torts, but that court’s approval of the restatement does not bind the Texas Supreme Court or this Court. The Restatement of Torts, Sections 352 and 353, was in existence at the time the Supreme Court handed down the Strakos decision. The court had ample opportunity to then adopt the restatement, but declined to do so. Sections 352 and 353 of the restatement are in substance identical with the “accepted work doctrine” which was specifically rejected by the Supreme Court.

Before the Supreme Court’s decision in Strakos the rule was that an independent contractor was not liable for injuries sustained by third parties after the contractor had completed the work and it had been turned over and accepted by the owner. See Nedler v. Neece Lumber Company, 63 S.W.2d 403 (Tex.Civ.App.—Waco 1933, no writ). To alleviate the harshness of this rule numerous exceptions developed in the Texas decisions. The primary exception to the general rule was stated by the San Antonio Court in Hartford v. Coolidge-Locher Company, 314 S.W.2d 445 (Tex.Civ.App.—San Antonio 1958, no writ). The court stated that “the liability of the contractor is continued even after he has parted with his control over a stipulated work, where the work is turned over to the owner in a manner so negligently defective as to be inherently dangerous to third [parties].”

The majority has, therefore, announced a new rule not in accord with a single Texas case, by holding that Lo-Vaca, by giving notice to Wilde of the dangerous condition existing on the property at the time the property was returned to Wilde, excused itself of liability as a matter of law.

If the prevailing rule is to be abrogated, it is the exclusive prerogative of the Supreme Court of Texas to announce the modification. I would apply the prevailing rule; that a fact issue exists as to whether Lo-Vaca’s negligence in erecting the wire between the two utility poles was a proximate cause of the plaintiff’s injuries. I would reverse the trial court’s granting of the summary judgment and remand the case for trial.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Chief Justice.

license: Public Domain

text:
    Millard L. DRAKE, Appellant, v. MUSE, CURRIE & KOHEN, Appellees.
    No. 18699.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 30, 1975.
    Rehearing Denied Nov. 26, 1975.

      Roy J. True, Dallas, for appellant.
    Ralph W. Currie, Currie & Neilon, Dallas, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

Elizabeth Holt, administratrix of the estate of Eugene Dixon Duncan, deceased, applied to the probate court of Dallas County, Texas, for authorization to pay attorney’s fees to the law firm of Muse, Currie & Kohen for services rendered to the adminis-tratrix in contesting an application to probate a will of Eugene Dixon Duncan, which had previously been admitted to probate in the state of New Hampshire and to substitute Millard L. Drake, the executor named in the New Hampshire will, for the admin-istratrix. Drake opposed the claim, contending that attorney’s fees were not legally allowable under Tex.Prob.Code Ann. § 242 (Vernon 1956). The probate court approved the claim in the amount of $12,-771.10 and directed that amount be,paid as an expense of administration. From that order, Drake appeals. We hold that the claim for attorney’s fees, under the facts of this case, is not allowable and, therefore, reverse and render judgment.

This is a case of first impression and presents this question: whether an adminis-tratrix, in her official capacity, has the duty to contest an application to probate a foreign will. All parties agree that an admin-istratrix has the right to contest such an application. Appellant contends that, absent a duty to contest, the administratrix may not claim attorney’s fees for expenses incurred in the contest of the foreign will. We agree.

Appellees presented a claim to the admin-istratrix for legal services rendered on behalf of the estate. Such claim was limited to services performed in connection with their opposition to an application by appellant Drake, a resident of Massachusetts, to probate, as a foreign will, a written instrument previously admitted to probate in the state of New Hampshire. The claim presented set forth in detail the exact services rendered. Drake does not contest the reasonableness of the fee. The administra-trix allowed the claim without change. Appellant Drake filed his objection to the claim, alleging that the services rendered were “not in connection with the administration of the estate herein” and did not benefit the estate, but rather benefitted the administratrix as an heir-at-law.

Jurisdictional Questions

We are confronted with two counterpoints attacking the jurisdiction of this court to hear the appeal. Appellees contend that the court lacks jurisdiction for these reasons: (1) Appellant failed to observe the jurisdictional requirements of Tex.R.Civ.P. 333 requiring that an appeal bond be filed within fifteen days after date of the order appealed from, and (2) appellant failed to observe the jurisdictional requirements of rule 336 which provides that the transcript, on appeal from the probate court to the district court, must be filed within thirty days from the date of the order appealed from.

The judgment of the probate court allowing the claim for attorney’s fees was signed on March 26, 1975. Notice of appeal to the court of civil appeals was duly made and filed on April 2, 1975. On April 22, 1975, appellant Drake deposited the sum of thirty dollars in cash with the county clerk of Dallas County, Texas, “in accordance with Rule 354, Rules of Practice and Procedure in Civil Actions, in lieu of a cost bond, appealing said costs to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, sitting at Dallas, Texas.” Thereafter on May 23, 1975, the transcript was filed in this court.

It is apparent from the record that appellant gave timely notice of appeal to the court of civil appeals and, twenty-seven days after the order appealed from, made a cash deposit in lieu of appeal bond, thereby complying with the requirements of Tex.R. Civ.P. 354, providing for a cost bond in cases appealed to the court of civil appeals. The record also reveals that, within sixty days from the order appealed from, appellant filed the transcript in this court in accordance with Tex.R.Civ.P. 386. Appellant contends, however, that the appeal of this case was governed not by Tex.R.Civ.P. 354 and 358, but rather by Tex.R.Civ.P. 333 and 336.

Prior to 1973, appeals from probate proceedings were to district courts, where the issues were tried de novo. However, in 1973, the legislature of Texas amended § 5 of the Texas Probate Code and thereby directed that final orders in probate matters shall be appealed to the courts of civil appeals. The question presented is whether the procedure to be followed in taking an appeal from the probate court to the court of civil appeals is now governed by rules 333 and 336 which governed appeals from the probate courts to district courts, or whether such appeal shall be governed by the rules applicable to other civil cases appealed to the court of civil appeals. We hold that, as a result of the legislative enactment of new § 5 of the Probate Code, rules 333 and 336 are no longer applicable and that appellant has properly complied with rules 354 and 386.

When a rule of civil procedure promulgated by the supreme court conflicts with a legislative enactment, the rule must yield. Few v. Charter Oak Fire Insurance Co., 463 S.W.2d 424, 425 (Tex.1971). The amendment to Tex.Prob.Code Ann. § 5 (Vernon Supp.1974) stated that final orders in probate matters “shall be appealable to the courts of (civil) appeals.” The rules appellees assert as controlling are found in the section captioned “Review of District Courts of County Courts Rulings.” While we do not hold that captions to the Texas Rules of Civil Procedure have the full force of law, we do accept the captions as directive, and we do not hesitate to consider them as aids in interpreting the meaning and applicability of the rules. Furthermore, to sustain appellee’s argument that rules 333 and 336 are controlling, we would be required to change the wording of those rules. Both rules make repeated references to dealing with the clerk of the district court and to powers which a district court may exercise in these matters. The language of these two rules unquestionably contemplates that they are applicable to an appeal to the district court. It is not within our authority to alter the wording of these rules in order that they convey the meaning appellees would impose upon them. It is significant that the legislature chose to amend the statute, in accordance with the constitutional amendment, without setting forth rules or even alluding to the rules of appellate procedure which would be applicable. When the legislature vests jurisdiction in the court of civil appeals and does not provide to the contrary, the general rules of procedure for perfecting appeal in the court of civil appeals apply by necessary implication. We hold, therefore, that appellant perfected his appeal under the applicable rules of procedure and that this court has jurisdiction of the appeal.

Action on Former Appeal

Appellees also contend that the right of the administratrix to charge the estate with expenses of contesting the foreign will has been settled by this court’s refusal to dismiss a former appeal. We cannot agree.

The contest of the foreign will was tried in the probate court and appealed to the district court. Where the will was admitted to probate, an appeal was then taken to this court from that judgment of the district court. While the appeal was pending in this court, Drake filed a motion to dismiss in which he asserted that the appeal was not taken by the administratrix in her official capacity but was, in fact and in law, an appeal in her personal capacity and interest so that she would be required to post bond. We overruled this motion to dismiss the appeal. Appellees now assert that by our action in overruling the motion to dismiss, we impliedly held that the administra-trix has a duty to appeal in her fiduciary capacity under the circumstances of this ease and thereby implied that the legal services rendered were proper expenses of administration. We do not agree. The hearing on the motion was not a hearing on the merits. In refusing to dismiss the appeal, we recognized that Holt, as adminis-tratrix did have a right to appeal as an interested party. However, we did not say, nor can it be implied, that we held that an administratrix has a duty to appeal under the circumstances presented. Our action on that motion does not make any issues now presented res judicata.

Administratrix’s Attorney’s Fees in Foreign Will Contest

We come now to the question of first impression presented by appellant: Does an administratrix of an estate in Texas have the authority to charge the estate of the decedent for attorney’s fees incurred by the administratrix in contesting an executor’s application to probate a foreign will of the decedent on the ground that the judgment of the sister state is not entitled to full faith and credit?

The record is uncontroverted that Millard L. Drake, as exécutor of Eugene Dixon Duncan, probated Duncan’s will in the state of New Hampshire. Prior thereto, Elizabeth Holt had been appointed administra-trix of the estate of Eugene Dixon Duncan in the probate court of Dallas County, Texas. Drake as executor tendered the will to the probate court of Dallas County, Texas, and asked that it be probated as a foreign will pursuant to Tex.Prob.Code Ann. § 105 (Vernon Supp.1974). At that time Mrs. Holt, acting through her attorneys, appel-lees herein, resisted the application for probate on the ground that the decedent was not a resident of New Hampshire at the time of his death but, to the contrary, was a resident of the state of Texas, and, therefore, asserted that the foreign will was not entitled to full faith and credit in this jurisdiction. Following a hearing, the probate court denied the foreign will to probate, and Drake appealed to the district court of Dallas County, Texas. Trial in the district court resulted in a judgment admitting the foreign will to probate, and from that judgment Mrs. Holt perfected an appeal to the court of civil appeals. The Eastland Court of Civil Appeals reversed and remanded the cause to the probate court for further proceedings. Holt v. Drake, 505 S.W.2d 650 (Tex.Civ.App.—Eastland 1973, no writ). It is uncontroverted that the services performed by appellees, as attorneys for the administratrix, were rendered in connection with the will contest outlined above. Attorney Currie, the only witness, testified that the value of the Texas estate was about $40,000 and that attorney’s fees incurred in resisting the application for probate, to the present time, amounted to approximately $12,000 and thus would be in excess of one-fourth of the total value of the estate. He also testified that, in view of the foreseeable trial in the probate court and possible appeals from that judgment, additional attorney’s fees would be incurred. Mr. Currie stated further that he had advised his client Mrs. Holt that it was her duty to resist the application for probate because the executor’s application was in the form of a claim against the estate. In response to a question from the court, Mr. Currie stated that the administratrix’s allowance of the claim for attorney’s fees was under the facts of this case, based upon the provisions of § 242 of the Probate Code.

Tex.Prob.Code Ann. § 242 (Vernon 1956) provides:

Personal representatives of estates shall also be entitled to all necessary and reasonable expenses incurred by them in the preservation, safe-keeping, and management of the estate, and in collecting or attempting to collect claims or debts, and in recovering or attempting to recover property to which the estate has a title or claim, and all reasonable attorney’s fees, necessarily incurred in connection with the proceedings and management of such estate, on satisfactory proof to the court.

Appellees assert that the adminis-tratrix’s contest of the Texas probate of the foreign will was an activity undertaken in “the preservation, safe-keeping, and management of the estate.” Based upon the facts presented in this record, we cannot agree with appellees. There is no evidence before us that indicates a necessity for continuing the administration of the Texas ad-ministratrix, as opposed to the executorship of Drake. While no one doubts the right of Mrs. Holt, as administratrix, to resist the application to probate the foreign will, we find no authority, either in the Probate Code or by decisions of courts of this state, which would impose upon her a legal duty to resist the application. It is entirely possible that the rights of the heirs of the estate may be altered if the foreign will is admitted to probate in Texas. However, the mere fact that the share of an heir is altered or exhausted does not of itself create a legal duty on the part of the adminis-tratrix to take action pursuant to § 242 of the Probate Code and to allow the resulting attorney’s fees to be charged to the estate. We hold that this record fails to demonstrate that the administratrix had a duty to oppose the application for foreign will under any of the provisions of § 242 of the Probate Code.

Appellees argue that the contest, being a claim against the estate, was brought by the administratrix to preserve the assets of the estate. We recognize the rule relied upon by the appellees that attorney’s fees incurred in defending a suit against an estate are properly chargeable as expenses of administration. Ackermann v. Ackermann, 99 S.W. 889 (Tex.Civ.App.—1907, no writ); Stoughton Wagon Co. v. S.G. Dreyfus Co., 181 S.W. 703, 705 (Tex.Civ.App.—Beaumont 1915, writ ref’d). That rule, however, is not controlling here because Drake’s attempt to probate the deceased’s foreign will is not a suit against the Texas estate nor does it constitute a claim against the estate.

Appellees also argue that the action on the part of the administratrix in allowing attorney’s fees is authorized pursuant to § 248 of the Texas Probate Code which provides:

When any person designated as executor in a will, or as administrator with the will annexed, defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney’s fees, in such proceedings.

That rule obviously has no application to the facts of this case since the administra-trix was not seeking to have a will admitted to probate nor was she defending a will already admitted.

Appellees, while admitting that there is no Texas authority directly in point on the question, seek to find support for the payment of attorney’s fees in Dyess v. Rowe, 177 S.W. 523 (Tex.Civ.App.—San Antonio 1915), reversed, 213 S.W. 234 (Tex. Comm’n App.1919). However, the facts in that case are easily distinguished from those presented here. In Rowe, an heir sought to withdraw the estate from administration, and the administrator resisted such action and thereby incurred attorney’s fees, which were allowed as an expense of administration. The administrator obviously felt that the administration was not ready to be closed and that it was his duty to preserve the estate by resisting the termination of the estate at that time. The Commission of Appeals held that it was the duty of the administrator not to surrender the trust property to one not entitled thereto and that, under those circumstances, it was his duty to oppose the withdrawal of the administration. In the present case, the action was not to withdraw the estate from administration but to probate a will which had previously been admitted to probate in a sister state. It cannot be said that the corpus of the estate would have been dissipated or jeopardized if the will had been admitted to probate since it is assumed that the executor would perform his duty of preservation as required by law.

We hold that since the administratrix did not have a duty to contest the appellant’s application to probate the foreign will, attorney’s fees incurred by the administratrix in the contest are not properly chargeable against the estate of Eugene Dixon Duncan.

The judgment of the probate court is reversed, and judgment is now rendered that the application of Elizabeth Holt, ad-ministratrix of the estate of Eugene Dixon Duncan, for an order directing the payment of a claim for attorney’s fees to Muse, Cur-rie & Kohen in the amount of $12,771.10 is denied. All costs are assessed against ap-pellees Muse, Currie & Kohen.

Reversed and rendered.

      . Amendments to the Texas Rules of Civil Procedure, effective January 1, 1976, repeal rules 333 and 336. The amendment states:
      “Rules 332-351, inclusive, are repealed effective January 1, 1976: The Amendment to Article V, Section 8, Tex.Const., and the enactment of S.B. 534, 64th Legislature, render these rules unnecessary.”

      . This appeal from the probate court to the district court was prior to the effective date of the 1973 act of the Texas Legislature which amended § 5 of the Texas Probate Code and provided for appeals from probate matters directly to the court of civil appeals.


author: GUITTARD, Justice.

text:
    Edgar VON SCHEELE, Appellant, v. KUGLER-MORRIS GENERAL CONTRACTORS, INC., et al., Appellees.
    No. 18695.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 13, 1975.
    On Rehearing Dec. 31, 1975.
    Second Rehearing Denied Jan. 29, 1976.

      Ralph Langley, Foster, Lewis, Langley, Gardner & Banack, William T. Armstrong, III, San Antonio, Strasburger, Price, Kel-ton, Martin & Unis, Dallas, for appellant.
    Robert S. Addison, Storey, Armstrong, Steger & Martin, David C. Musslewhite, Moore, Peterson, Bauer, Williams & Mussle-white, Dallas, for appellees.
   GUITTARD, Justice.

This appeal from an order overruling a plea of privilege exemplifies the intricacies peculiar to Texas venue law. The controversy concerns construction of the Oak Hills Motor Inn in Bexar County, Texas. The general contractor, Kugler-Morris General Contractors, Inc., sued the owner, Edgar Von Scheele, in Dallas County, alleging completion of the project and the owner’s liability for the balance of the contract price. The general contractor also sued the masonry subcontractor, Dee Brown Masonry, Inc., a resident of Dallas County, alleging in the alternative that if the owner was correct in refusing to accept the work of the subcontractor and was entitled to any offset to the sum owing under the general contract because of the subcontractor’s work, then the general contractor was entitled to judgment against the subcontractor for the amount of any such offset.

The owner, who resides in Bexar County, filed a plea of privilege. The general contractor’s controverting plea alleges that the suit may be maintained against the owner in Dallas County under Tex.Rev.Civ.Stat. Ann. art. 1995, subd. 4 (Vernon 1964) because of the subcontractor’s residence in Dallas County. The nonresident defendant contends that his plea of privilege should have been sustained because the allegations of the general contractor’s alternative claim against the resident subcontractor are insufficient to meet the requirements of proving a bona fide claim against the resident defendant under subdivision 4, and are merely conjecture, based on what the owner might do in the lawsuit. Although this contention seems to confuse the question of proper joinder of the claims against the two defendants with the question of sufficiency of proof of a cause of action against the resident defendant, we treat it as raising both questions. Thus, the questions to be decided may be stated as follows: (1) Is a claim against a resident defendant properly joined with a claim against a nonresident defendant if the claim against the resident is alleged only as an alternative to the claim against the nonresident? (2) Is proof of the alternative or contingent liability of the resident defendant sufficient to establish that plaintiff has a bona fide cause of action against that defendant? We answer both questions in the affirmative, and, accordingly, we affirm the order overruling the plea of privilege.

1. Joinder of Causes of Action

Subdivision 4 of article 1995 provides: “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” Although this language is admirably simple, it has spawned a plethora of interlocutory appeals which have produced a number of conflicts in the decisions. These conflicts have not arisen from any complexity or uncertainty in the statute, but rather from requirements which the courts have added to protect the defendant’s “sacred right” to a trial in the county of his residence. The only venue fact specified in subdivision 4 is the residence of one defendant in the county of suit. Texas courts, however, as stated in Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 (1936), have imposed two additional requirements: (1) plaintiff must allege a joint cause of action against the resident and nonresident defendants, or a cause of action against the resident defendant “so intimately connected” with the cause of action against the nonresident defendant that the two may be joined to avoid a multiplicity of suits, and (2) plaintiff must introduce evidence at the venue hearing sufficient to establish the cause of action alleged against the resident defendant. These requirements are justified on the theory that a defendant ought not to be required to litigate in a distant county unless he is properly joined in a suit against a resident defendant and unless the plaintiff demonstrates by evidence his good faith in suing the resident defendant. Id. at 1303.

The two nonstatutory requirements summarized in Stockyards have led to much litigation because the law rarely defines with precision the causes of action that may properly be joined or the facts that must be alleged and proved to establish a cause of action for venue purposes. Although opinions resulting from almost a hundred years of litigation under subdivision 4 may be found in the South Western Reporter, and are annotated in more than a hundred columns of fine print in Volume 5 of Vernon’s Texas Revised Civil Statutes Annotated, they leave a number of problems unresolved, including the problem raised by alternative claims against different defendants. Is an alternative claim, even if it arose out of the same transaction or occurrence, “so intimately connected” with the primary claim that the two claims may be joined to avoid a multiplicity of suits under the test stated in Stockyards I

Some of the courts of civil appeals have held that alternative causes of action against different defendants are not joina-ble for venue purposes because they are “separate and distinct” causes of action and are not based on any joint liability or “community of responsibility” between the defendants. McAlister v. City of Mertens, 43 S.W.2d 651, 652 (Tex.Civ.App.—Waco 1931, no writ); Danciger v. Smith, 229 S.W. 909, 910 (Tex.Civ.App.—Dallas 1921, no writ). On this theory, if the cause of action alleged against a nonresident defendant is primary and that alleged against the resident defendant is alternative or contingent, the two claims have been held not properly joinable for venue purposes. Windham v. Alpine Independent School District, 478 S.W.2d 861, 865 (Tex.Civ.App.—Amarillo 1972, writ dism’d); Shaver v. Hughes, 214 S.W.2d 176, 178 (Tex.Civ.App.—Fort Worth 1948, no writ). Windham, which is probably the strongest case in support of the nonresident owner’s contention here, involved a claim on two warrants against a nonresident school district and an alternative claim against a resident securities dealer for restitution in the event the warrants should be declared invalid. The Amarillo court of civil appeals held that joinder of these claims was not proper under subdivision 4 because of lack of a “community of responsibility” between the defendants.

On the other hand, in a case more nearly like that now before us than any of those above cited, the Corpus Christi court of civil appeals has held that alternative allegations are sufficient to maintain venue. Bee County Cooperative Ass’n v. Dominy, 489 S.W.2d 418, 421 (Tex.Civ.App.—Corpus Christi 1972, no writ). In that case, as in this, a general contractor alleged a primary cause of action against the nonresident owner for money due under the contract and an alternative cause of action against a subcontractor for breach of contract in the event any deficiency should be found in the subcontractor’s work. The owner contended, as does the owner here, that the claim against the subcontractor was “an unac-crued cause of action which does not satisfy the requirements of Subdivision 4”, but the court held that the cause of action was not hypothetical because the ultimate issue determining whether owner or subcontractor was liable was whether the project was properly completed in accordance with the contract.

This decision was followed by the Amarillo court of civil appeals without referring to its Windham decision, in Brown-McKee, Inc. v. City of Andrews, 501 S.W.2d 714, 717 (Tex.Civ.App. — Amarillo 1973, no writ), which involved alternative claims by a general contractor against a nonresident owner and against the resident assignee of a subcontractor.

The “community of responsibility” test applied in Windham, and some of the other cases above cited, was recently disapproved by this court in Angelo v. Chemical Bank & Trust Co., 529 S.W.2d 783 (Tex.Civ.App.—Dallas, 1975), in which we held that a more appropriate test of proper joinder under subdivision 4 was the existence of a common question of fact. The primary claim in Angelo, as distinguished from the present case, was against the resident defendant and liability of the nonresident was alleged in the alternative. We now hold, in accordance with the decision of the Corpus Christi court of civil appeals in Bee County, supra, that the same test applies to a case in which the liability of the nonresident defendant is primary and that of the resident defendant is alternative or contingent. The same interest in avoiding multiplicity of suits exists in both types of case, and also the same possibility that a plaintiff, though clearly entitled to recover from one of two defendants, may be denied relief because the same issue of fact may be found against him both affirmatively and negatively if he is forced to litigate in two different suits. Thus, in the present case, each of the causes of action alleged by the general contractor arises from the same transaction or series of transactions, namely, the construction of the Oak Hills Motor Inn, and in each the controlling issue of fact is performance of the masonry subcontract. If a Bexar County jury, in a suit between the general contractor and the owner, finds that the masonry work was defective, and a Dallas County jury, in a suit between the general contractor and the masonry subcontractor, finds that the masonry work was properly done, then the general contractor must suffer a loss based on the subcontractor’s default, but will be unable to recoup that loss from the subcontractor. Hence, we hold that the two causes of action are so intimately connected that they may be properly joined for venue purposes, under the Stockyards rule.

2. Proof of Cause of Action against Resident Defendant

The problem in alternative causes of action under subdivision 4 lies not so much in the requirement of an allegation of a properly joinable cause of action against the nonresident defendant as in the requirement of proof of a cause of action against the resident defendant at the venue hearing. If the alleged liability of one defendant is alternative in the sense that it is contingent on the nonliability of the other, then proof of a cause of action against one must negate liability of the other. Thus, paradoxically, in such a case, plaintiff must prove by a preponderance of the evidence facts negating the liability of the nonresident defendant against whom he is seeking to establish venue. See Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935). This result is consistent with Stockyards, since in that case evidence negating liability of the nonresident defendant was held not to defeat venue in the county of suit.

Even more paradoxical is a case like the present, in which the plaintiff alleges a primary claim against the nonresident defendant and only an alternative or contingent claim against the resident defendant. If the general contractor is required to establish a breach of contract against the subcontractor in order to maintain venue of the suit against the nonresident owner, the general contractor’s proof at the venue hearing to that extent must be contrary to its primary position in the case. Thus, in this case, the general contractor alleged in its primary claim that the contract, including the masonry work, was completely performed, and its officer so testified at the venue hearing. To show a breach by the subcontractor it introduced the testimony of the owner concerning deficiencies in the masonry work. May the general contractor be heard to assert that it has proved a cause of action for breach of contract against the subcontractor as against its own judicial admissions that the building was completed?

We resolve this difficulty in the light of the reasoning behind the judicially-imposed requirement of proof of a cause of action against the resident defendant. The purpose of this requirement is to establish the good faith of the plaintiff in joining the resident defendant. The theory is that proof of a cause of action against the resident defendant is necessary to establish that the resident defendant is not joined fraudulently or collusively for the purpose of maintaining venue against the nonresident defendant. See Stockyards, supra, and Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747, 749 (1923).

We conclude that the evidence in this case is sufficient to support a finding of good-faith joinder of the resident defendant. The evidence at the venue hearing shows the elements of the general contractor’s cause of action against the nonresidential owner, the owner’s testimony concerning deficiencies in the masonry work and his claim against the general contractor for such deficiencies, and the contingent liability of the masonry subcontractor to the general contractor in the event the issue of completion of the masonry work should be ultimately resolved in favor of the owner. Although counsel for the owner suggests that the general contractor and the subcontractor have colluded to fix venue in Dallas County, the evidence establishes that the general contractor has a real and legitimate interest in joining the subcontractor so as to protect itself against loss in the event the masonry work is found to be incomplete. Consequently, we hold that proof of this contingent liability is sufficient to establish the good faith of the general contractor in joining the subcontractor in this suit.

Affirmed.

ON MOTION FOR REHEARING

In footnote 1 of our original opinion we explained that although our disposition of the venue question turned on Kugler-Mor-ris’s action against Von Scheele and Dee Brown Masonry, Inc., as alleged in its cross-claim and counterclaim, the litigation began as a suit by Dee Brown against Kugler-Morris and Von Scheele. Dee Brown’s claim against Kugler-Morris was for the balance due on the masonry subcontract, and his claim against Von Scheele was for interference with performance of Kugler-Morris’s obligation under the subcontract. On motion for rehearing Von Scheele contends that venue of the original action by Dee Brown should be separately considered and determined. He cites cases such as Boyd v. Thompson-Hayward Chemical Co., 450 S.W.2d 937 (Tex.Civ.App.—Tyler 1970, writ dism’d), which involved subdivision 29a of article1 1995 rather than subdivision 4, and held that venue of a severable third-party action or cross-claim must be determined independently of the original action.

We need not decide whether Dee Brown’s actions and Kugler-Morris’s action are severable, since we conclude that controlling consideration is not severability but propriety of joinder of actions to avoid a multiplicity of suits. In this connection we note that the test of joinder of actions for venue purposes under subdivision 4 differs from the test under subdivision 29a. Under subdivision 29a, which applies when none of the defendants is a resident of the county, the test is severability, based on the strict concept of “necessary parties,” and no consideration is given to the problem of a multiplicity of suits. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776 (1944). On the other hand, under subdivision 4, which applies when at least one of the defendants is a resident of the county, the broader “proper party” test is used, and that test is defined in terms of avoiding a multiplicity of suits. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 (1936). Although Stockyards dealt with actions by one plaintiff against more than one defendant, we see no reason why the same principle should not be applicable where, as here, the same three parties are involved in both actions.

We also find a persuasive analogy in cases where a plaintiff asserts several different causes of action against the same defendant. In such cases the courts have held that if venue is proper as against one of the several causes of action alleged, other causes of action against the same defendant may be joined in order to avoid a multiplicity of suits. Middlebrook v. David Bradley Manufacturing Co., 86 Tex. 706, 26 S.W. 935 (1894); Parkhill Produce Co. v. Pecos Valley Southern Ry., 348 S.W.2d 208, 209 (Tex.Civ.App.—San Antonio), writ ref’d n. r. e. and this holding approved in Pecos Valley Southern Ry. v. Parkhill Produce Co., 163 Tex. 88, 352 S.W.2d 723 (1961). Although the claims joined here are not different claims of the same* plaintiff against the same defendant, we conclude that similar reasoning applies where the parties are the same and there is a common issue of fact. Here the two actions involve not only the same three parties, but also the same principal fact issue, namely, performance of the masonry subcontract. Clearly, the two actions should be tried together to avoid a multiplicity of suits.

In this connection we hold also that the order in which the actions were filed is not controlling. Determination of the venue question must be made relative to and consistent with the posture of the case at the time of the venue hearing. Estes Chemical Co. v. Ciba-Geigy Corp., 501 S.W.2d 469, 479 (Tex.Civ.App. — Amarillo 1973), reversed and remanded for settlement, 505 S.W,2d 249 (Tex.1974). Since both the Kugler-Morris action and the Dee Brown action were before the court at the venue hearing, and in both actions pleas of privilege and controverting pleas had been filed, the court was not required to determine whether one action or the other should be regarded as the “main action” for venue purposes. Since the original action by Dee Brown against Kugler-Morris and Von Scheele was properly joined with the action by Kugler-Morris against Von Scheele and Dee Brown, venue of the entire controversy lay in Dallas County. Consequently, the trial court properly overruled Von Scheele’s plea of privilege with respect to Dee Brown’s action as well as its plea of privilege with respect to Kugler-Morris’s action.

Motion overruled.

      . The litigation began as a suit by the masonry subcontractor against the general contractor and owner, and the general contractor’s pleading is in the form of a cross-claim against the owner and a counterclaim against the subcontractor. Since our disposition of the venue question turns on the general contractor’s cross-claim and counterclaim, the subcontractor’s action will not be mentioned further. Neither do we find it necessary to discuss additional claims of the general contractor against the owner and against two other subcontractors.

      . The cases are reviewed in 1 McDonald, Texas Civil Practice in District and County Courts § 4.10.1 et seq. (rev.ed.1965).

      . The owner’s alternative allegation als"' asserted that if there were any deficiencies in the work, they were the result of the combined actions of the subcontractor and the owner. This allegation does not serve to distinguish that case from the present because here, also, the general contractor alleges in the alternative that the owner was guilty of “continual interference with the subcontractor and their performance on the job.”

      . For other cases approving joinder for venue purposes of separate claims against different defendants arising out of the same transaction or series of transactions on the theory of avoiding a multiplicity of suits, though not involving the same cause of action or a “community of responsibility,” see Atlas Roofing Co. v. Hall, 150 Tex. 611, 245 S.W.2d 477 (1952); Meeker v. W. M. & W. Well Servicing Co., 318 S.W.2d 678, 681 (Tex.Civ.App.—San Antonio 1958, no writ); Taylor v. Jones, 244 S.W.2d 371 (Tex.Civ.App.—Texarkana 1951, no writ); and Herold v. Texas Venetian Blind Co., 203 S.W.2d 691, 692 (Tex.Civ.App.—Dallas 1947), mand. overruled with apparent approval of this holding in Texas Venetian Blind Co. v. Bond, 146 Tex. 212, 205 S.W.2d 977 (1947).

      . Theoretically the general contractor may avoid this difficulty by alleging his primary claim against the subcontractor for breach of the subcontract and alleging in the alternative a claim against the owner for full contract price in the event the contract was found to be completed, but we conclude that the general contractor should not be required to take this position when his own evidence will show that the contract is complete and proof of breach of contract by the subcontractor must depend on the adverse evidence offered by the owner.


author: BARROW, Chief Justice.

text:
    Theresa GONZALEZ, Appellant, v. Alvaro GONZALEZ, Appellee.
    No. 15487.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 10, 1975.
    Rehearing Denied Jan. 7, 1976.

      Mayo J. Galindo, P. Joseph Brake, Galin-do, Cooper & Brake, San Antonio, for appellant.
    Earl S. Post, San Antonio, for appellee.
   BARROW, Chief Justice.

This is an appeal by Theresa Gonzalez and her 18-year old son, Alvaro Gonzalez, Jr., from a judgment denying either of them any recovery for delinquent child support payments allegedly owed by appellee under a decree of divorce.

Alvaro and Theresa Gonzalez were divorced on June 10, 1957. Custody of their five-month old son, Alvaro, Jr., was granted Theresa Gonzalez, and Alvaro Gonzalez was ordered to pay the sum of $15.00 weekly for a period of eight weeks and thereafter the sum of $10.00 per week until the son reached the age of 18 years. On April 2, 1973, Theresa Gonzalez filed a motion for contempt wherein she alleged that Alvaro Gonzalez was delinquent in the sum of $7,800.00. The motion was heard on April 17, 1973, and by order signed on April 26, 1973, Alvaro Gonzalez was found to be delinquent in the amount of $2,000.00. It was ordered that he be committed to jail for a period of three days and until he purged himself by paying the $2,000.00 in arrearag-es. The order provided that the arrearages could be paid in the following manner: the sum of $1,000.00 was to be paid in cash by May 21,1973; the weekly support payments were to be increased to $25.00 per week until the arrearages were paid; and thereafter, the weekly payments would be reduced to $10.00 per week until the minor became 18 years of age.

On July 1, 1974, Theresa Gonzalez filed another motion for contempt and to reduce to judgment all unpaid child support payments which Alvaro Gonzalez was ordered to pay under the original divorce decree. She alleged that Alvaro Gonzalez was delinquent in the total sum of $6,490.00, of which sum, $155.00 was owed under the court’s contempt order of April 26, 1973. On January 20, 1975, an amended motion was filed wherein the son, Alvaro Gonzalez, Jr., was joined as a petitioner and sought to recover in his own name the unpaid child support. Trial was had before the court and á judgment signed on May 12, 1975, whereby petitioners were denied all relief except for the sum of $500.00, allowed as attorneys’ fees for bringing such action.

Appellant, Theresa Gonzalez, complains by two points that the trial court erred in holding she could not go behind the order of April 26,1973, to recover child support payments allegedly owed by Alvaro Gonzalez under the original divorce decree. In this connection, it is urged that the order of April 26, 1973, was in truth and fact based on a consensual agreement which was procured through fraud upon her by Alvaro Gonzalez. The son, Alvaro, Jr., urges by two points that he should not be estopped by the April 26th order from recovering all unpaid child support installments in that he was not a party to such proceeding and, in fact, could not bring such an action until he became 18 years of age on November 27, 1974.

The order of contempt signed on April 26, 1973, provides in part that the parties, Theresa Gonzalez and Alvaro. Gonzalez, came in person and by their attorneys and announced ready; and “the Court, having heard and considered the evidence and the argument of counsel, is of the opinion and finds that the said Alvaro Gonzalez is guilty of contempt of this Court [in] that he has failed and refused to make child support payments in the total sum of $2,000.00 and is now in arrears in said sum.” Appellants concede that all payments called for by the April 26,1973 order have now been made by appellee, including the $155.00 delinquent on July 1, 1974.

It is seen that the order specifically sets out that the court heard and considered the evidence. There was no appeal from this final order or even a complaint as to the form of same. Appellant may not do so now by this collateral attack. The April 26, 1973 order was based upon power conferred by Article 4639a, Tex.Rev.Civ.Stat. Ann., which statute could be enforced only by contempt proceedings. Menner v. Ranford, 487 S.W.2d 698 (Tex.1972); Hutchings v. Bates, 406 S.W.2d 419 (Tex.1966). Appellant voluntarily accepted the benefits of this judgment, including a substantial cash payment, and cannot now complain of the judgment. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). In any event, it cannot be said, after an examination of the statement of facts, that Theresa Gonzalez’ claim of fraud was established as a matter of law. The two points of error asserted by appellant, Theresa Gonzalez, are without merit and overruled.

The divorce decree did not require appellee to make any support payments directly to his minor son. The suit before us was not a claim for necessaries furnished to the son. To the contrary, the evidence established that all support was furnished by his mother. We do not know of any authority for the son to now assert a claim for payments that were required to be made to his mother. It has been held that a child cannot maintain an independent suit to recover against his parent for support and maintenance. Price v. Price, 197 S.W.2d 200 (Tex.Civ.App.—El Paso 1946, writ ref’d). The trial court did not err in denying appellant, Alvaro, Jr., a recovery for alleged delinquent support payments. His two points of error are overruled.

The judgment is affirmed.

      . Sec. 14.09(c) of the Texas Family Code, which was effective January, 1974, authorizes the court, upon motion of any party entitled to receive payments for the benefit of a child, to render judgment against a defaulting party for any unpaid amount owed under an order of the court.


author: HALL, Justice.

text:
    GOODPASTURE, INC., Appellant, v. Joe SKAGGS et al., Appellees,
    No. 5475.
    Court of Civil Appeals of Texas, Waco.
    Dec. 30, 1975.

      McGowan, McGowan & Hale, Brownfield, for appellant.
    Huffaker & Green, Tahoka, for appellees.
   HALL, Justice.

The appellees are in the business of buying and selling junk iron and pipe and other scrap metal. In late November or early December, 1972, they made an oral agreement with the appellant, Goodpasture, Inc., to purchase several thousand tons of junk from Goodpasture at the price of $18.00 per ton. The junk consisted of water wheels and other parts of old irrigation systems, trucks, cement mixers, tanks, and other unusable scrap iron located on farms and other properties owned by Goodpasture in and around Terry County. The appellees brought this suit against Goodpasture for damages on the theories, originally, of breach of the oral contract and quantum meruit. The essence of the appellees’ pleadings was this: When the contract was made, the appellees and Goodpasture knew that some of the scrap iron, specifically the water wheels, was not worth $18.00 per ton by reason of its weight and quality, but that other parts of the junk was worth more than $18.00 per ton, and $18.00 was agreed upon by the parties as a mean value per ton; that the water wheels alone were not worth more than $3.00 per ton; that Goodpasture was anxious to have the water wheel scrap removed first, and appellees agreed to this procedure, knowing the junk they would finally buy would have a total value of $18.00 per ton; that after the appellees had removed 685.51 tons of junk which was mostly water wheels, paying $18.00 per ton therefor in keeping with the agreement, and had removed many other loads of water wheels from the fields to Goodpasture’s place of business at “Thirty Acres” and cut them up, Goodpasture refused to continue with the contract. The ap-pellees prayed for $100,000 for breach of the contract; and, under an alternative “quantum meruit” count, they sought $10,-100 as the difference between the $18.00 per ton already paid by them for the 685.51 tons of junk and its actual value of $3.00 per ton, and $6,000 as their expense for removing the remainder of the scrap to Goodpasture’s business location and cutting it up.

Goodpasture filed a general denial; a special plea that the oral contract pleaded by appellees violates Sections 2.201 and 26.01, Vernon’s Tex.Codes Ann., Bus. & C., and will not support their cause of action; and a counterclaim on sworn account for $2,753.81 allegedly still unpaid by the appel-lees for the scrap iron bought and hauled off by them, with additional counts for attorneys’ fees and pre-judgment interest.

During the course of the trial, the appel-lees filed a trial amendment in which they alleged that (1) the oral contract “by reason of the same being in a sum and for junk in excess of $500 and other reasons and the same not being in writing and signed by the parties, is and was unenforceable”; (2) there was no consideration or a failure of consideration for the amount paid by appel-lees to Goodpasture “in excess of $3.00 per ton” for the water wheels and other junk actually received by them; and (3) for “removing [other] water wheel systems [which Goodpasture refused to deliver to appellees] out of the sand, hauling the same into the Defendant’s property, and cutting the same up” they were entitled to recover on quantum meruit the sum of $7,855.

It is undisputed that the appellees received delivery of 685½ tons of junk from Goodpasture, at the rate of $18.00 per ton, before Goodpasture refused further delivery under the contract. It is also undisputed that the junk received by the appellees was composed of both water wheels and material of much higher value, although how much of each, and its value, is disputed. Disputed, too, is the question of which party first breached and caused the ending of the agreement between them. Also, on the trial the parties stipulated that the balance owed to Goodpasture by the appellees on the account for junk delivered to the appellees at the rate of $18.00 per ton was the sum of $2,059.92; and that the number of tons not paid for “would be this [sum] divided by 18.”

Trial was to a jury. Answering special issues numbered as follows the jury found that (1) the agreement of $18.00 per ton was based upon knowledge by appellees and Goodpasture “that junk of a higher value than the water wheel systems was included therein arriving at said price”; (2) the market value of the junk received by the appel-lees was $12.00 per ton; (3) the reasonable value “of the services performed by the [appellees] in pulling out, hauling in, and cutting up the water wheels left on the defendant’s premises” is $8,000; (4) Good-pasture requested the appellees to perform the services enumerated in special issue no. (3), above; (6) the services performed benefited Goodpasture; and, (7) Goodpasture should have reasonably expected to pay ap-pellees for these services. The jury failed to find that (5) the services were performed by the appellees “with the expectation of being entitled to charge [Goodpasture] compensation therefor.”

The appellees moved the court to disregard the jury’s answer to special issue no. (5) on the grounds that (a) there is no evidence to support the answer and (b) the question inquired about therein (whether the appellees expected to get paid for the services when they were rendered to Good-pasture) is immaterial, and render judgment for the appellees on the remainder of the* verdict, and on the parties’ stipulation. The court granted this motion in its entirety. That is, it disregarded the answer to Special Issue No. 5 on the grounds that there is no evidence to support it and that the inquiry made therein is irrelevant, and rendered judgment on the remainder of the verdict and the stipulation “that Plaintiffs should have and recover of and from the defendant the sum of $4,113.06, and the sum of $8,000.00, and that the Defendant should be entitled to offset thereof the sum of $1,835.52 for a total recovery on behalf of the Plaintiffs in the amount of $10,-277.54.”

The record shows that upon the closing of proof by all parties, but before the case was submitted to the jury, Goodpasture moved for an instructed verdict on the grounds that “[t]here is no evidence in the case to show that services were being rendered by the [plaintiffs] with the expectation of being entitled to charge the defendant therefor; there is no evidence to show that the services as performed benefited the defendant in any manner; there is no evidence to show that the defendant should have expected to pay for the work performed by the plaintiffs.” The motion was overruled. Goodpasture timely filed objections to the court’s charge to the jury on a number of grounds which we need not detail, including one to the effect that Special Issue No. 1 constituted an improper measure of damages on quantum meruit. The objections were all overruled.

After judgment, Goodpasture filed what it denominated a “Motion For Judgment On Finding Of Jury,” asserting that the oral contract was enforceable to the extent performed, entitling Goodpasture to recover on its cross-action under the jury’s finding; that the answer to Special Issue No. 2 was immaterial; and that, for sundry reasons, the verdict would not support a recovery by plaintiffs on quantum meruit. The record fails to show that this motion was called to the attention of the trial court or acted on by it. Therefore, contrary to the assignments of error in Goodpasture’s brief, nothing relating to the motion is preserved for review. Tex-Wash Enterprises, Inc. v. Robna, 488 S.W.2d 504, 505 (Tex.Civ. App.—Waco, 1972, writ ref., n. r. e.).

Goodpasture assigns 21 points of error on appeal. It did not file a motion for new trial.

In point one, complaint is made about the overruling of Goodpasture’s motion in limine designed to prevent specified proof by the appellees. There can be no error in the overruling of a motion of this nature. The error, if any, would be subsequently permitting the proof over proper objection on the trial; and this error, to be preserved for review in a jury trial, would have to be assigned in a motion for new trial. Rule 324, Vernon’s Tex.Rules Civ. Proc.; Miller v. Miller, 274 S.W.2d 762, 764 (Tex.Civ.App.—San Antonio, 1955, writ ref.); Superior Insurance Company v. Sanchez, 428 S.W.2d 718, 719 (Tex.Civ.App.— Waco, 1968, writ ref., n. r. e.).

In points 2 and 3, complaint is made of the permitting of proof over Goodpasture’s objection. The effects of the assignments of error in points 4, 5, 6, 7, 8, 9, 10, and 15, are complaints that the case was improperly submitted to the jury in several particulars relating to the measure of damages and to alleged elements of a quantum meruit action. Complaint is made in point 12 that Special Issue No. 1, as submitted, constitutes a comment upon the weight of the evidence. Reversal is sought in points of error 14, 16, and 18, on the grounds that the evidence is factually insufficient to support the jury’s answers to Special Issues Nos. 4, 6, and 7. Because these complaints were not assigned as error in a motion for new trial, they have been waived and we are without authority to review them. Rule 324; Darryl v. Ford Motor Co., (Tex.Sup., 1969) 440 S.W.2d 630, 633; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Manning v. Sears, Roebuck & Company, 417 S.W.2d 639, 640 (Tex.Civ.App.—Houston, 1967, writ ref.).

Contrary to Goodpasture’s contentions, no error may be based upon the court’s ruling on its motion for instructed verdict, because complaints turning upon the overruling of a motion for instructed verdict must be brought forward as assignments of error in a motion for new trial. Rule 324; Tex-Wash Enterprises, Inc. v. Robna, Inc., supra (at 488 S.W.2d 506).

In its point 11, Goodpasture assigns error to the court’s action in disregarding the jury’s answer to Special Issue No. 5, asserting that by this answer “the jury found that the plaintiffs performed the services without expectation of being entitled to charge the defendant compensation therefor, as this finding is an essential element of quantum meruit recovery.” And in its points 13 and 17, Goodpasture asserts there is no evidence to support the jury’s answers to Issues 4 and 7. We shall discuss these complaints together.

The answer to Special Issue No. 5 is not a finding, it is a failure to find. It is a failure on the part of the jury to find by a preponderance of the evidence that the services for which the appellees seek payment from Goodpasture “were being performed with the expectation of being entitled to charge the defendant compensation therefor.” In their motion to disregard, the appellees asserted that the question inquired about in this issue is immaterial, and that there is “no evidence” to support the answer. The Court granted the motion and disregarded the answer on both grounds. Because the appellees had the burden of proof on the issue, the want of any evidence to support the answer cannot benefit them, and is not a proper basis for disregarding the answer. What the appellees and the court obviously meant by “no evidence to support the answer” was that the evidence establishes conclusively, as a matter of law, the affirmative of the question; that is, that the only evidence on the question is that the services were being performed by the appellees with the expectation of being entitled to be paid therefor by the defendant. See Williams v. Bailey, 471 S.W.2d 446, 447 (Tex.Civ.App.—Waco, 1971, writ ref., n. r. e.). If the only evidence on the question requires an affirmative answer, then the jury’s failure to find the affirmative was properly disregarded. Rule 301.

The negotiations between the parties for the sale and purchase of the junk was handled by Rex Reach on behalf of Goodpas-ture, and by Joe Skaggs on behalf of appel-lees. Reach testified as follows: “We wanted to get rid of the water wheels. We had a lot of other junk there. We decided we would put it up for the highest bidder. Joe [Skaggs] was to move all water wheels off before he started on anything else. He made the offer for the junk and I told him before he made the offer that he was to get the water wheels before he got anything else. I told him that, because we wanted to make sure that we got the water wheels out first. It would cost more money to cut up the water wheels to where he could get a load in weight on his truck than it would anything else there. The water wheels by themselves were nearly a losing proposition. That’s the reason we had the other iron to go along with it, so he could afford to take it all. We agreed on the deal because he was to clean up all the water wheels on all the farms, the Thirty Acres, everywhere that we had them, before he started on anything else . . . . He was supposed to get all of our water wheels and after all of the water wheels was done away with, he was supposed to get all of our scrap iron that we had. . . . The highest bid we ever got just on the water wheels was $2.50 per ton. That is because they are bulky and you can’t carry very much on a truck. And, they had to be cut up and a lot of them had to be dragged out of the sand. He hauled them in from the farms there to the Thirty Acres. And he cut them up there at the Thirty Acres. The biggest percentage of what he left at Thirty Acres has been cut up.”

Skaggs testimony was substantially the same as Reach’s on the water wheels priority. Their testimony in this regard is undisputed in the record, and is corroborated in several material respects by the testimony of other witnesses. This testimony conclusively establishes that Goodpas-ture requested (in fact, required) appellees to perform the services inquired about in the issues; that appellees expected payment therefor in the value differential between that of the water wheels and the other, more valuable junk; and that, likewise, Goodpasture should have expected (and did, in fact, expect) to make payment in this fashion. Accordingly, the jury’s answer to Special Issue No. 5 was properly disregarded; and Issues 4 and 7 are supported by proof.

Additionally, it is the settled rule that “where one receives a benefit by accepting the services of another, even though performed in pursuance of an invalid or illegal contract, nevertheless such person is bound upon the plainest principles of equity for the reasonable value of such services.” Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771 (Tex.Comm.App., adopted, 1941). As we had said, no complaint to the measure of damages submitted to the jury has been preserved. Under the record, judgment thereon was proper.

The appellant’s remaining points and contentions are without merit under the record, and are overruled.

The judgment is affirmed.

      . § 2.201. Formal Requirements; Statute of Frauds.
      (a) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.

      . § 26.01. Promise Or Agreement Must Be In Writing.
      (а) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. (b) Subsection (a) of this section applies to . (б) an agreement which is not to be performed within one year from the date of making the agreement.