text:
    James Albert SIMMONS, Appellant, v. Joyce Elaine SIMMONS, Appellee.
    No. 19446.
    Court of Civil Appeals of Texas, Dallas.
    June 2, 1978.
    Rehearing Denied June 29, 1978.
    Peter S. Chantilis, Coffee, Coffee & Chantilis, Dallas, for appellant.
    Reba Graham Rasor, Raggio & Raggio, Inc., Dallas, for appellee.
   AKIN, Justice.

The principal question on this appeal is whether long-term monthly disability benefits provided by an employer and payable to a former husband after divorce are community property. We hold that these benefits are community property because the right to the payments was part of the husband’s compensation for services during marriage. Accordingly, we affirm.

Appellant Simmons was a pilot for Delta Airlines. He commenced his employment with Delta on July 9, 1956, and married appellee in Kansas on July 16,1960. Appellant became a participant in the Delta Pilots Disability and Survivorship Plan when it was established on February 1, 1972. During a physical examination on December 23, 1975, it was discovered that appellant had recently suffered a myocardial infarction. Because of this impairment, he was grounded as a pilot. On March 16, 1976, appellant had open heart coronary bypass surgery to alleviate blockage of three coronary arteries. Since this surgery, appellant has been unable to meet standards prescribed by the Federal Aviation Administration (F.A.A.) for renewal of his medical certificate and will continue to be grounded until he is able to physically meet the standards.

On March 8,1977, appellant began receiving $2,460 per month in benefits under the Delta Pilots Disability and Survivorship Plan and will continue to receive these benefits until he regains his medical certification under F.A.A. regulations or until his death, whichever occurs first. On May 3, 1977, appellant and appellee were divorced. The trial court found that the right to receive disability benefits from Delta is an earned property right which did not come to the appellant as a payment for damages suffered by a personal injury, but as a part of the bundle of benefits which appellant acquired incident to his work for Delta and were, therefore, community property. Accordingly, the court awarded these monthly payments sixty-one percent to appellant and thirty-nine percent to appellee, and the husband appeals.

Appellant contends that the long-term disability benefits are separate property because they represent a recovery for personal injury and loss of earning capacity after divorce. In support óf this argument, he cites section 5.01(a)(3) of the Texas Family Code Annotated (Vernon 1974) which provides:

(a) A spouse’s separate property consists of .
(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

He then points to section 5.01(b) which defines community property as follows:

(b) Community property consists of the property, other than separate property, acquired by either spouse during marriage. [Emphasis added]

Thus, he reasons that since his heart attack was a personal injury, disability payments made after divorce are separate property since they are for recovery of loss of earning capacity after divorce.

We cannot agree with this reasoning. Appellant’s contention ignores the fact that the right to receive the disability payments after divorce was a vested property right resulting from his employment with Delta Airlines and as such was part of appellant’s remuneration for his employment. Copeland v. Copeland, 544 S.W.2d 183, 184 (Tex.Civ.App. — Amarillo 1976, no writ). Without question the payments made by Delta were community property since this contractual right was a part of his compensation during marriage because it was one of the benefits flowing from his employment with Delta. We hold, therefore, that since the right to receive the payments was community, the benefits payable under the plan were likewise community subject to division by the court upon divorce. Tex.Fam.Code Ann. § 3.63 (Vernon 1975).

Appellant argues, however, that the heart attack was analogous to a tort injury and, therefore, under the rationale of Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972), it is separate property. The supreme court in Graham did hold that recovery in tort for personal injuries to the body of a spouse is the separate property of the spouse so injured. However, in Graham, the court called attention to the views of learned writers to the effect that the right of personal security, which is the right violated by a personal injury tort, is not a right acquired during the marriage, but is an “intensely separate right” which belongs to the injured spouse, and not to the community. This reasoning does not apply to a vested property right acquired during the marriage as a part of the remuneration for employment during marriage. Thus, the supreme court did not hold that if physical injury to a married person results in loss of earning capacity, any proceeds that may flow to the spouse so injured from a community contract right must be separate property. Here, the only reason that benefits were payable as a result of the heart attack was because of the Delta disability plan, which, as we have held, supra, was owned by the community, since it was one of the bundle of benefits that flowed from his employment during marriage and had vested prior to divorce.

Our holding is supported by the supreme court’s decision in Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970) which held that disability retirement benefits accrued during marriage were community property. The court’s rationale was that the disability retirement pay was not a gift or gratuity but rather was an earned property right accrued during marriage. Id. at 552, citing with approval Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App. — San Antonio 1960, no writ) and Mora v. Mora, 429 S.W.2d 660, 662 (Tex.Civ.App. — San Antonio 1968, writ dism’d). The supreme court in Busby also rejected the contention that there was a difference between voluntary retirement benefits and disability retirement benefits. Similarly, here the disability plan providing for benefits vested during marriage and was, therefore, an earned property right. Thus, the benefits from such a vested property right are community property even though they may be paid after divorce. As noted by the court in Dominey v. Dominey, 481 S.W.2d 473, 475 (Tex.Civ.App. — El Paso 1972), cert. denied, 409 U.S. 1028, 93 S.Ct. 462, 34 L.Ed.2d 321 (1972), disability benefits still fit into the mold of an earned property right since they did not come as a result of payment for damages suffered as a result of an injury, but rather were part of the “bundle of benefits” earned during marriage.

Appellant insists, nevertheless, that Ramsey v. Ramsey, 474 S.W.2d 939, 941 (Tex.Civ.App. — Eastland, 1972, writ dism’d) is controlling. That case held that Veterans Administration payments for a service-connected disability were separate property, even though they were received during marriage, because the disability payments were not an earned property right, but were remuneration for a service-connected disability, for which the Veterans Administration had no obligation to pay. The opinion does not disclose whether the disability arose before or after marriage. The court distinguished Busby on the ground that in Busby the right to benefits was acquired during the marriage as a result of the joint efforts of the spouses.

We conclude that since the benefits here arose by a contract right vested during marriage rather than as a recovery for personal injuries sustained by the husband during marriage, the disability benefits were correctly characterized as community property by the trial court. Consequently, we find no abuse of discretion by that court and accordingly affirm.


source: Caselaw Access Project

author: ROBERTSON, Justice.

license: Public Domain

text:
    Lorena K. MOWERY, Appellant, v. FANTASTIC HOMES, INC., Appellee.
    No. 19536.
    Court of Civil Appeals of Texas, Dallas.
    June 2, 1978.

      Frances Ann McWilliams, Homer A. Brown, Brown & Brown, Garland, for appellant.
    David R. Noteware, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   ROBERTSON, Justice.

Lorena K. Mowery sued Fantastic Homes, Inc., seeking damages for various defects in her new home. She alleged that Fantastic Homes was guilty of both common law fraud and statutory real estate fraud under Section 27.01 of the Texas Business and Commerce Code. Alternatively, Mowery alleged breaches of express and implied warranties regarding the construction, merchantability, and fitness of the house for habitation. She also alleged that the defects were the result of Fantastic Homes’ negligence in construction. The case was tried to a jury, and the court’s charge was submitted over the objections of Fantastic Homes. In response to the special issues, the jury found that Fantastic Homes had represented that the house was soundly constructed; that this representation was false; that the representation was a material inducement to Mowery to purchase the house; that she relied on the representation; and that the misrepresentation was willful. The jury also found that Fantastic Homes was liable for its negligent construction of the house. In addition to compensatory damages, the jury awarded Mowery $10,000 in exemplary damages. After the verdict was returned, Mowery moved for judgment on the verdict. Although no motion to disregard jury findings or for judgment non obstante veredicto was filed, the trial court nevertheless denied recovery for fraud, disregarded the jury’s award of exemplary damages, and rendered judgment on the negligence theory in the amount of $10,746.75. Mowery now appeals from that judgment. We reverse and render judgment based upon the fraud theory and reinstate the award of exemplary damages.

Mowery urges that the trial court erred in failing to render judgment on the fraud findings and the jury’s award of exemplary damages. Fantastic Homes argues, however, that because the court’s charge set forth an erroneous measure of damages for fraud, the trial court could not render a proper judgment for Mowery on that theory, and the fraud issues were thus properly disregarded. We cannot accept Fantastic Homes’ contention because it was not raised in the trial court by objections to the charge. The court submitted two issues concerning damages for fraud, as follows:

Special Issue No. 8
What do you find from a preponderance of the evidence was the cash value parted with by the plaintiff at the time of purchase?
Answer in dollars and cents, if any.
ANSWER: $18,400.00
Special Issue No. 9
What do you find from a preponderance of the evidence is the reasonable market value of the property at the time of trial ? [Emphasis added] Answer in dollars and cents, if any.
ANSWER: $11,548.25

According to Fantastic Homes, the measure should not be calculated by the market value of the property at the time of trial; rather, it should be based on the value at the time of sale. We need not decide whether the court submitted an incorrect measure of damages, since the record does not reflect that any specific objection was made in this regard prior to submission.

Fantastic Homes’ objections to Special Issue No. 9 were as follows:

The Defendant specially excepts to Issue No. 9 for the reason that such special issue is irrelevant to any issue before this court, the trial of the plaintiff’s case. [The issue is] irrelevant to any issue before this court and jury or any damages sustained by plaintiff.
That [Special Issue No. 9] does not allow this defendant to take into consideration the fact that reasonable repairs could be effected on the property which would greatly enhance the value of the property so that in rendering an opinion with regard' to fair market value the cost of damages should be considered.

These objections are insufficient to preserve any error regarding the submission of an improper measure of damages in Special Issue No. 9. Rule 274 of the Texas Rules of Civil Procedure requires a party to “point out distinctly the matter to which he objects and the grounds of his objection.” Absent a specific objection, the error is waived. Missouri Pacific R. R. Co. v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283 (1960); Osteen v. Crumpton, 519 S.W.2d 263-64 (Tex.Civ.App. — Dallas 1975, writ ref’d); see Whitson v. Bluff Creek Oil Company, 156 Tex. 139, 293 S.W.2d 488 (1956) (objection which stated “said issue does not inquire as to the proper measure of damages” held insufficient for failing to point out defect with sufficient specificity). Thus, even assuming that the submitted measure of damages was erroneous, the trial court was not authorized to disregard the jury’s finding of damages on that ground when no distinct objection to the measure of damages was made before submission. Allen v. American National Ins. Co., 380 S.W.2d 604, 609 (Tex.1964); Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922 (Tex.Civ.App.— Austin 1936, no writ). As our supreme court stated in Allen :

Where, however, the ground (of recovery or defense) is submitted, however, erroneously or incompletely, the parties are thereby put on notice that the jury’s answers to the issues actually submitted will form the basis of the court’s judgment thereafter to be rendered thereon. It then becomes the duty of each party to point out errors of omission or commission, or be held estopped from thereafter urging them. [Emphasis added]

If a party is precluded from urging errors in the charge if no distinct objection is made prior to submission, then surely the trial court may not, on its own motion, disregard material issues which have been submitted without a proper objection.

We hold, therefore, that the trial court improperly disregarded the jury’s answers to the issues concerning the fraud theory and exemplary damages. When a jury verdict sustains several alternative theories of recovery advanced by a plaintiff, the trial court must render judgment on the theory which affords the greatest recovery. See Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73, 75 (1953). Accord: ingly, we reverse the judgment of the trial court, and render judgment for Mowery in the sum of $6,851.75, together with $10,000 exemplary damages and costs.


author: ROBERTSON, Justice. AKIN, Justice,

text:
    Nick ZELIOS, Appellant, v. CITY OF DALLAS, Appellee.
    No. 19541.
    Court of Civil Appeals of Texas, Dallas.
    June 6, 1978.
    Rehearing Denied July 13, 1978.

      Morris I. Jaffe, Wynne & Jaffe, Dallas, for appellant.
    Robert P. Buckner, Charles M. Hinton, Asst. City Attys., Dallas, for appellee.
   ON REHEARING

ROBERTSON, Justice.

Our original opinion is withdrawn and the following opinion is substituted therefor.

The City of Dallas sued Nick Zelios, seeking a mandatory injunction to force removal of a frame structure built on the side of his condominium. The City alleged that the structure was built without the building permit and safety inspections required by the Dallas Building Code and Comprehensive Zoning Ordinance, and that it extended into the side yard which, under the ordinance, is required to remain unobstructed. The City further asserted that as a result of the lack of safety inspections, the improvement might pose a serious threat to the safety of persons and property within or near the structure. The trial court issued a mandatory injunction directing Zelios to remove the structure, and Zelios now appeals. We affirm.

The primary question on this appeal is whether the trial court abused its discretion in ordering the mandatory injunction. The resolution of this issue depends upon whether the findings of fact filed by the trial court support its decree. According to the findings, the subject structure is a one-story home improvement approximately nine feet wide. It occupies virtually the entire ten-foot side yard for a length of forty-four feet adjacent to and adjoining Zelios’ condominium unit. The structure contains electrical wiring, and has no foundation other than that provided by its attachment to the condominium. The court further found that Zelios “knew he was doing wrong in adding the structure” and that the Board of Adjustment of the City of Dallas had denied Zelios’ application for a variance in the side yard requirements on two occasions. The sufficiency of the evidence to support these findings has not been challenged, and accordingly, we must accept the findings as a correct recitation of the facts. Katz v. Rodriguez, 563 S.W.2d 627, 631 (Tex.Civ.App. — Corpus Christi 1978, no writ); Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App. — Corpus Christi 1977, writ ref’d n. r. e.); Texas State Board of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884 (Tex.Civ.App. — Austin 1976, no writ).

The City argues that since these findings show a willful violation of the ordinance, the mandatory injunction was proper. We agree. Although we have found no Texas authority, it is the general rule in other jurisdictions that mandatory injunc-tive relief is proper when the defendant acts with full knowledge that his acts are wrongful. See, e. g., Welton v. 40 East Oak Street Building Corp., 70 F.2d 377 (7th Cir.1934); Morgan v. Veach, 59 Cal.App.2d 682, 139 P.2d 976 (1943); Flower Haven, Inc. v. Palmer, 502 P.2d 424 (Colo.App.1972); Hollingsworth v. Szczesiak, 32 Del.Ch. 274, 84 A.2d 816 (1951); Johnson v. Pattison, 185 N.W.2d 790 (Iowa 1971); MeCavic v. DeLuca, 233 Minn. 372, 46 N.W.2d 873 (1951); Wilson Concrete Co. v. County of Sarpy, 189 Neb. 312, 202 N.W.2d 597 (1972); Higgins v. Builders and Finance, Inc., 20 N.C.App. 1, 200 S.E.2d 397 (1974); Williamson v. Needles, 191 Okl. 560, 133 P.2d 211 (1942); McCausland v. Jarrell, 136 W.Va. 569, 68 S.E.2d 729 (1952).

Zelios argues that enforcement of the ordinance by mandatory injunction will damage him in an amount which is grossly disproportionate to the damage, if any, resulting from the violation. In essence, this argument urges us to reverse the trial court because it failed to “balance the equities” by considering the respective damage to the City and Zelios before issuing its order. We cannot accept this argument. Equity never aids in the commission of a wrong. Sanders v. Cauley, 52 Tex.Civ.App. 261, 113 S.W. 560 (1908, no writ). Consequently, the doctrine of balancing the equities cannot be invoked by a party guilty of intentional wrong. See Grey ex rel. Simmons v. City of Paterson, 60 N.S.Eq. 385, 45 A. 995 (1900); Stuart v. Lake Washington Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956); McCauslar v. Jarrell, supra. As the court stated in Welton v. 40 East Oak Street Building Corporation, 70 F.2d 377, 383 (7th Cir. 1934), a case in which the defendant’s violation was willful:

There is involved that immeasurable but nevertheless vital element of respect for, and compliance with, the health ordinance of the city. The surest way to stop the erection of high buildings in defiance of zoning ordinances is to remove all possibility of gain to those who build illegally-

We express no opinion on the City’s burden of proof if no willful violation is shown.

Affirmed.

AKIN, Justice,

dissenting.

I cannot agree with the majority opinion that the trial court’s finding that appellant knowingly violated the zoning ordinance obviates the necessity of the city to show that serious injury may occur if the structure is not removed by mandatory injunction. Instead, I would adhere to our original opinion. I can see no logical reason to draw a distinction between a case where the property owner unknowingly violates an ordinance and a situation where the owner knows prior to construction that the structure violates the zoning ordinance. Neither can I accept the rationale of the majority, as well as the conclusion of law of the trial court, that because the violation was with knowledge, the court is prevented from balancing the equities and has no choice but to grant the mandatory injunction even upon a showing of a slight technical violation of the ordinance. Thus, the thrust of the majority opinion is that mere proof of a violation of the ordinance entitles the city to a mandatory injunction if the property owner had knowledge of the violation.

None of the cases cited by the majority stand for the proposition that a city need show only a knowing violation of a building ordinance in order to obtain a mandatory injunction. Indeed, cases cited in the majority opinion concern restrictive covenants, covenants not to compete, and suits by individuals to enforce an ordinance asserting a vested property right, none of which are germane to the question here presented.

In my view, the general rule governing the issuance of a mandatory injunction applies here. Thus, a mandatory injunction compelling the destruction of property should be granted only where serious injury is likely to occur if the injunction is not granted. City of Dallas v. Gaechter, 524 S.W.2d 400, 402 (Tex.Civ.App. — Dallas 1975, writ dism’d); Cabla v. Shockley, 402 S.W.2d 289, 291 (Tex.Civ.App. — Amarillo 1966, writ ref’d n. r. e.); Nolte Irrigation Co. v. Willis, 180 S.W.2d 451, 455 (Tex.Civ.App. — Amarillo 1944, writ ref’d w. o. m.). Here, the trial court made no finding that serious injury was likely to occur if the injunction was denied; instead the judge granted the mandatory injunction solely on the ground that Zelios had knowingly violated the side-yard requirement of the zoning ordinance.

The undisputed evidence showed that the roof placed upon the existing nine-foot, solid brick patio walls was an asset to Zelios’ property, as well as to that of adjoining property owners. The uncontradicted evidence showed also that prior to placing the roof atop the patio walls, Zelios was confronted with a serious drainage problem occasioned by water collecting in the patio and entering the interior of Zelios’ condominium. Other owners of condominiums in the same complex, as well as other adjacent property owners, testified that the covering of the patio greatly enhanced the entire neighborhood by eliminating a nuisance and that they preferred the covering to remain. Thus, although the covering of the patio technically violated the city’s zoning ordinance side-yard requirements, it resulted in a benefit to the entire neighborhood. Particularly in a situation such as this, it was incumbent upon the city to show that the violation by Zelios of the side-yard ordinance requirement was likely to result in serious injury. Nolte Irrigation Co. v. Willis, at 455. The city neither pleaded nor attempted to introduce evidence of any such likely dangers. Indeed, although discovery was readily available to the city, no effort was made to develop such evidence if indeed it existed.

Although the city argues that harm to the public welfare must be presumed by the violation of an ordinance, destruction of property cannot be ordered upon mere presumption. Disruption of the city’s zoning scheme does not, in itself, justify relief by mandatory injunction. This is particularly true where, as here, the area in question is in a flux of change from single-family dwellings to apartment houses, condominiums, and townhouses. If the city believed that the roof over the patio so endangered the public welfare as to warrant its removal, it had the duty to present facts showing that such a danger actually existed. Absent such proof, the drastic remedy of mandatory injunction is improper. In City of Amarillo v. Meade, 286 S.W.2d 276, 278 (Tex.Civ.App. — Amarillo 1956, no writ), the court held that in the absence of proof of fire, sanitation, or other public hazard, enforcement of an ordinance requiring a minimum rearyard by mandatory injunction would be denied as arbitrary, capricious, and unreasonable.

Even though the violation by Zelios was willful, according to the trial court’s finding, this does not, in my view, relieve the city of its burden to show an actual danger. Since the crucial inquiry in a mandatory injunction suit is whether serious injury will be inflicted if relief is withheld, the trial court must base its decision on the effect of the violation on the public welfare. If no harmful effect is shown, the issuance of a mandatory injunction, in cases of a violation of a city ordinance, would result in the destruction of property without any corresponding public benefit. In my view, in such a case, the mandatory injunction serves a punitive, rather than a remedial purpose, and should be denied.

This rationale finds support in the opinion of the supreme court in City of Fort Worth v. Johnson, 388 S.W.2d 400, 402 (Tex.1964). In that case, the supreme court stated that “if the evidence is conclusive that a zoning ordinance is arbitrary and unreasonable, generally or as to particular property, it is the duty of the courts to refuse to enforce it.” Thus, the supreme court has recognized that mere violation of an ordinance does not mandate judicial enforcement. Accordingly, I would sustain Zelios’ point of error predicated on this specific ground because, in my view, it is arbitrary and unreasonable for the city to seek destruction of property by mandatory injunction where no public benefit is to be derived nor where no public harm is to be remedied. Without such a showing by the city, I would hold that, as a matter of law, mere violation of a city ordinance is insufficient in itself to justify destruction of property by mandatory injunction. Accordingly, I must respectfully dissent.


author: GUITTARD, Chief Justice.

text:
    Fay Robinson SMOOT, Appellant, v. Lloyd SMOOT, Jr., Appellee.
    No. 19544.
    Court of Civil Appeals of Texas, Dallas.
    June 7, 1978.

      Charles H. Robertson, Robertson & Wilkinson, Dallas, for appellant.
    Barton E. Bernstein, Hockberg, Bernstein & Skor, Reba Graham Rasor, Raggio & Raggio, Inc., Dallas, for appellee.
   GUITTARD, Chief Justice.

In this divorce case, tried without a jury, the court made a division of the property unsatisfactory to the wife. On this appeal she attacks the finding of the trial court that certain land, which was an asset of a partnership between the husband and his father, was the husband’s separate property. We hold that the record sustains the trial court’s finding.

The facts are undisputed. The divorce decree divides the community property of Fay Smoot and Lloyd Smoot, Jr. and lists other assets that are declared to be the separate property of the respective parties. The values of the various items of property, both community and separate, are stated by the judge in findings of fact. According to these values, which are not challenged here, the community assets allotted to Fay Smoot had an aggregate value of $111,427 and those allotted to Lloyd Smoot, Jr. had a value of $93,251. The decree ordered Lloyd to pay community debts of $4,470 and also to pay Fay $12,500 in cash within thirty days from entry of the judgment. Accordingly, the total property allotted to Fay, not considering her separate property, was $123,927, and the net community property received by Lloyd, after deducting the debts and the amount of this cash payment, was $76,281. Thus Fay received the equivalent of 62% of the community property, leaving Lloyd with 38%. The values of the separate property listed aggregate $133,137 for Fay and $106,387 for Lloyd. The principal asset listed as his separate property is an undivided one-half interest in a tract of land designated as the “South Haskell property,” which the evidence shows to be worth at least $80,000. This is the asset which Fay contends should have been treated as community property and included in the division of the community assets.

The trial court found that Lloyd’s interest in the South Haskell land was the result of a gift from his father. More specifically, the court found that in 1948, less than three years after the parties were married, Lloyd’s father bought a tract of sixty acres of land for $60,000, paying $25,000 in cash and signing a note for $35,000, which he subsequently paid; that Lloyd was never liable for this indebtedness and did not make any contribution to its payment; that contemporaneously with acquisition of the land, Lloyd’s father began to keep a ledger in the name of “Smoot & Son;” that Lloyd made no contribution to Smoot & Son either in capital or cash, nor did he render any services or labor of any type; that no consideration of any type passed from Lloyd to his father and any interest he may have had in Smoot & Son was the result of a gift from his father; that Smoot Homes, Inc., in which Lloyd and his father owned stock (Lloyd’s shares having been given to him by his father), developed and sold 54 acres of the South Haskell property, leaving six acres undeveloped; that the rental from the land was paid in to Smoot & Son; that Lloyd’s father managed Smoot & Son and made gifts to Lloyd of the monies received; that in July, 1967, Lloyd and his father, as executors of his mother’s estate, and his father individually, executed a deed conveying to Lloyd an undivided interest in the remaining South Haskell land; that Lloyd gave no consideration for this conveyance; that Lloyd’s interest in Smoot & Son had a value of $7,000. This interest, as well as Lloyd’s half interest in the land, valued at $80,000, was listed in the separate property set apart to Lloyd in the divorce decree.

More generally, the court found that the division effected in the decree was fair, just and equitable and that the award to each party of his or her separate property, as effected in the judgment, was “fair, just and equitable . . . considering all matters before it, including the source of the funds expended, the nature of the gift to each of the parties of the separate property set forth herein, and the nature of the inception of the title in and to said property.”

The evidence shows that Lloyd’s father kept the partnership ledger for “Smoot & Son” in his own hand continuously from the time he acquired the land until the time of the trial. The purchase price of the land, including both the down payment and the amount of the note, was listed in this ledger. From time to time, lots were sold to Smoot Homes, Inc. and the proceeds of these sales were entered in the ledger. Rents from the land were received and shown, as well as various dealings in securities. Expenses were shown, including office and legal expenses. Distributions of profits, including long-term gains, were made to Lloyd and his father, and advances were made to Lloyd in the amount of approximately $25,000 in addition to the distribution of profits. The undisputed evidence shows that at the time of trial, the principal assets of Smoot & Son was the six acres left of the South Haskell property, which was then under lease to Auto Convoy Company.

The court’s finding of a gift to Lloyd of an interest in this land is supported by recitals in the 1967 deed to Lloyd from his father and the executors of his mother’s estate. This deed describes the undivided half interest and recites:

“This conveyance is made in acknowledgment by the Grantor, Lloyd Smoot, that the aforedescribed properties have heretofore been held in his name under deed of conveyance dated June 14, 1948 executed by Pauline G. Tholl, as independent4 executrix and sole devisee under the will of F. J. Tholl, deceased, to Lloyd Smoot, as shown in Dallas County, Texas Deed Records, Volume 2992, page 250, which property said Lloyd Smoot states has, since the aforesaid date, belonged jointly in partnership between Lloyd Smoot and Lloyd Smoot, Jr., notwithstanding the fact that the said property has been listed in the name of Lloyd Smoot only.”

We review this decree under the Family Code, which gives the trial court broad discretion to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of [the parties].” Tex.Family Code Ann. § 3.63 (Vernon 1975). Our role is to determine whether there has been an abuse of discretion. McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex.1976).

Fay Smoot contends that the trial court abused its discretion because the court erred in characterizing Lloyd Smoot, Jr.’s partnership interest in Smoot & Son as his separate property and also in characterizing the land, which was a partnership asset, as his separate property. She argues that since the partnership of Smoot & Son was formed after the parties married, Lloyd’s interest is presumed to be community property and could not have been a gift from his father because one person by himself cannot create a partnership and then give an interest in it to another. She contends further that since the Uniform Partnership Act, Tex.Rev.Civ.Stat.Ann., art. 6132b, § 28 — A(l) (Vernon 1970), provides that a partner’s rights in specific partnership property are not community property, then neither can they be separate property; consequently, the land in question was partnership property rather than separate property, and since his interest in the partnership was community property, it should have been taken into account as such in dividing the community estate.

We do not agree that Lloyd’s interest in the partnership was necessarily community property because the parties , were married when the partnership was formed. A partner’s interest in a partnership without assets is neither separate nor community because no property exists which may be characterized as one or the other. When property is contributed to the partnership, each partner is a co-owner of each specific item of property, holding as a tenant-in-partnership, Tex.Rev.Civ.Stat. Ann., art. 6132b, § 25 (Vernon 1975). The community or separate nature of each partner’s interest depends on the source of the property. If a married partner contributes community property, or if partnership assets are accumulated from rents or profits, then, to that extent, his interest is community property, even though such rents or profits may have resulted from the use of separate property. See Hardee v. Vincent, 136 Tex. 99, 147 S.W.2d 1072, 1073-74 (1941).» On the other hand, if a married partner contributes separate property, then his interest in the partnership is separate property to that extent, and any appreciation in its value as a result of general economic conditions, as distinguished from labor and effort beyond that required for preservation of the separate property, remains separate property. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, 681 (1953); W. DeFuniak & M. Vaughn, Principles of Community Property, §§ 73, 80 (1971).

In the present case the partnership from its inception was the result of the paternal benevolence of the elder Smoot. When he acquired the property in his own name, he made no formal deed of gift of the half interest to Lloyd Smoot, Jr. He was meticulous, however, in showing the land as an asset in the partnership ledger and in showing also the source of the funds used to acquire it. He testified that he gave Lloyd an undivided half interest. Whether he gave that interest to Lloyd, who contributed it to the partnership, or contributed it directly to the partnership for Lloyd’s benefit, his intent was clear and the result was the same. Lloyd’s entire interest, initially, was a gift. After the elder Smoot’s wife died in 1967, he made a record of Lloyd’s interest by joining with the executors of his wife’s estate in formally conveying this half interest to Lloyd, reciting that it “belonged jointly in partnership between Lloyd Smoot and Lloyd Smoot, Jr.” Thus, any problem concerning lack of a formal deed of gift in 1948 was obviated, and once again the intent was clear. Although the elder Smoot was originally the owner of the land, he intended from the beginning to give a half interest to Lloyd and intended for Lloyd to have a half interest in the partnership of Smoot & Son. Lloyd paid no consideration for that interest and contributed few services, if any, to the partnership enterprise.

Under this evidence, the trial court was justified in finding that Lloyd’s interest, whether it was an interest in the land or an interest in the partnership, resulted entirely, from the benevolence of the elder Smoot. Although Fay Smoot may have had a community interest in the partnership (as distinguished from partnership assets) to the extent of any assets derived from profits of the partnership, Lloyd’s interest in the partnership to the extent of one-half of the value of the land was the result of a gift from his father and was properly treated as his separate property.

If the trial court made a technical error in treating the land as an asset belonging to Lloyd individually, as distinguished from an asset of the partnership in which Lloyd had an interest, the error is harmless because it would not affect the division in the divorce decree. If Lloyd’s interest in the partnership had been regarded as including an undivided one-half interest in the land, to that extent it would have been separate property for the reasons already stated. Under neither interpretation of the facts could it have been properly regarded as community property which Fay was entitled to have included in the division of the community estate.

No problem of tracing is presented here, as in Cox v. Cox, 439 S.W.2d 862 (Tex.Civ. App. — San Antonio 1969, no writ). It is undisputed that the six-acre tract in question is a part of the same land bought by Lloyd’s father in 1948. If Lloyd’s interest in the land, or in the partnership to the extent that the land was a partnership asset, was separate property in 1948, it was still separate property at the time of this trial.

No specific attack is made in this court on the trial court’s finding that Lloyd’s interest in the partnership (other than the land) was separate property worth $7,000, although Fay suggests that this interest may have included rentals and other income in which she had a community interest. The ledger shows that the principal receipts of the partnership over the years were the proceeds of sales of lots to Smoot Homes, Inc. Since we hold that Lloyd’s interest in the partnership was initially his separate property, his interest in the proceeds of these sales was also separate. Although the receipt of rentals may have added an element of income in which Fay had a community interest, the trial court was justified in concluding from the partnership records, which are detailed and complete, that distributions to the partners had more than offset any accumulation of profits other than those attributable to gains from sales of the land. At least, the court was warranted in finding that under these circumstances a division of assets based on this assumption was “just and right, having due regard for the rights of the parties.” Cf. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974) (award of stock in corporation to husband as his separate property affirmed, notwithstanding wife’s claim that increase in stockholders’ equity during marriage was community property).

Fay Smoot makes another attack on the division of property in the divorce decree. She points out that in May, 1964, Lloyd’s father credited Lloyd’s account in Smoot & Son with $30,000. The father testified that this credit was made as forgiveness of prior indebtedness from Lloyd to Smoot & Son and was intended as a gift to both Lloyd and Fay. Thus Fay argues that she was entitled to half of this amount and that the trial court failed to consider it in dividing the estates of the parties.

We cannot agree that at the time of the divorce this credit represented an asset that Fay was entitled to have divided. It did not enhance the value of the partnership, as she insists, since it resulted in a reduction of the partnership assets at that time. Neither did it represent any specific item of property to be divided between Fay and Lloyd. As forgiveness of prior indebtedness, evidently created by advances to Lloyd over and above his share of the partnership profits, this credit was presumably made in cancellation of a community debt. To the extent of that forgiveness, therefore, Fay has already benefited equally with Lloyd. Consequently, the trial judge did not err in failing to include it in his division of the community property.

Affirmed.


author:
MURRAY, Justice.
      CADENA, Chief Justice,

text:
    Read KILLGORE, Appellant, v. ESTATE of Roberta M. KILLGORE, Deceased, Appellee.
    No. 16017.
    Court of Civil Appeals of Texas, San Antonio.
    June 14, 1978.
    William H. Russell, San Antonio, for appellant.
    Waynene C. Combest, Veitch & Britt, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

The single question in this case is whether the probate court has jurisdiction to remove an independent executor who is an incompetent.

On April 28,1977, appellant’s mother, Roberta M. Killgore, died, and appellant, Read Killgore, was named independent executor in the decedent’s will. On June 30, 1977, appellant, Read Killgore, was adjudged non compos mentis and a temporary guardian was appointed. On August 31, 1977, the order of the court, admitting the will to probate and authorizing letters testamentary was entered, said order stating that “. . . in said will, decedent named Read Killgore as Independent Executor, to serve without bond, who is duly qualified and not disqualified by law to act as such and to receive Letters Testamentary; . . ” On October 19,1977, the court set aside that order on the grounds that Read Killgore had been adjudged non compos mentis on June 30, 1977, and appointed a temporary administrator with the will annexed.

We set out certain provisions of the Probate Code as originally enacted in 1955 and as amended in 1957, which are deemed particularly pertinent here:

Sec. 3, Definitions and Use of Terms When used in this Code, unless otherwise apparent from the context:
(aa) ‘Personal Representative’ or ‘Representative’ includes executor, independent executor, administrator, temporary administrator, guardian, and temporary guardian, together with their successors. The inclusion of independent executors herein shall not be held to subject such representatives to control of the courts in probate matters with respect to settlement of estate except as expressly provided by law.
Sec. 145(h)
When an independent administration has been created, and the order appointing an independent executor has been entered by the county court, and the inventory, appraisement, and list aforesaid has been filed by the executor and approved by the county court, as long as the estate is represented by an independent executor, further action of any nature shall not be had in the county court except where this Code specifically and explicitly provides for some action in the county court.
Sec. 78
No person is qualified to serve as an executor or administrator who is:
(b) An incompetent.
Sec. 222. Removal
(b) With Notice.
The court may remove a personal representative on its own motion, or on the complaint of any interested person, after the personal representative has been cited by personal service to answer at a time and place fixed in the notice, when:
(5) He becomes an incompetent, or is sentenced to the penitentiary, or from any other cause becomes incapable of properly performing the duties of his trust.

We think the Waco Court of Civil Appeals has correctly stated the test used to determine the extent to which the probate court can exercise its hold over an independent executor in the ease of Bell v. Still, 389 S.W.2d 605 (Tex.Civ.App. — Waco 1965), adopted at 403 S.W.2d 353.

In interpreting any section of the Probate Code containing the word “executor,” the courts have had to determine whether or not the limitation expressed in such section applies to both an ordinary executor and an independent executor. Prior to the 1955 revision of the Code, it was generally held that only those statutes which dealt with matters other than the “settlement of the estate” applied to an independent executor. Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892 (1898); Woodward, Some Developments in the Law of Independent Administrations, 37 Texas L.Rev. 828 (1959). The test under the present Sec. 3(aa) and Sec. 145, as stated in Bell v. Still, supra, appears as follows:

. (1) Whether removal of the independent executor for the assigned reasons requires the probate court to take action in connection with ‘settlement’ of the estate, and (2) whether the Code ‘specifically and explicitly’ provides for that action in the [county court].

Sections 149 and 214-217 of the Code provide the only method for removal of an independent executor by the Probate Code. These statutes specifically apply to independent executors.

The fact that the probate court cannot remove an incompetent independent executor is of doubtful wisdom. Our Supreme Court concluded in Bell v. Still, supra, at page 353:

The matter is a difficult one because doubts exist as to the wisdom of a policy under which an independent executor, accused of gross mismanagement of an estate, is not subject to removal by the probate court as any other executor or administrator. This, however, is a matter within the control of the Legislature. It is our opinion that the Probate Code did not change the rule previously existing that the probate court did not have this power unless the independent executor, properly appointed and qualified, was required to post bond and could not or would not do so. We do not have here the question as to whether the district court has this power of removal.

We hold that Section 222 of the Code does not specifically and explicitly apply to independent executors.

The judgment of the trial court is reversed and appellant, Read Killgore, is ordered reinstated as independent executor of the Estate of Roberta M. Killgore, deceased.

CADENA, Chief Justice,

dissenting.

Neither the provisions of the Probate Code nor the decisions interpreting such provisions compel the unwise conclusion that the probate court cannot remove an independent executor who lacks the legal capacity to perform his duties.

I do not agree that Bell v. Still, 389 S.W.2d 605 (Tex.Civ.App. — Waco 1965), aff’d, with opinion of the Court of Civil Appeals adopted by the Supreme Court, 403 S.W.2d 353, 354 (1966), furnishes a definitive answer to the question involved in this case. (Since the Supreme Court in Bell adopted the opinion of the Waco Court of Civil Appeals, the opinion of the Waco court will be referred to in this opinion as that of the Supreme Court, although citations will, of necessity, refer to the Court of Civil Appeals opinion.)

Bell does no more than hold that the probate court lacks jurisdiction to interfere with an independent executor in matters involving the settling of the estate. As the Supreme Court pointed out (389 S.W.2d at 607):

To permit the court to remove the trustee named by the testator for causes such as here charged, which involve passing upon his conduct in settling the estate, is to authorize accomplishment by obliquity what is prohibited to be done directly. If the asserted grounds of removal concern the acts of the independent executor in the settlement of the estate, as they do here, in that respect the power to remove is the power to control, (emphasis added)

Denial of the probate court’s power to remove an independent executor in Bell was expressly based on the fact that to permit removal for mismanagement amounts to vesting in the probate court the power to control the conduct of the independent executor in the settlement of the estate. Since, in adopting the opinion of the Court of Civil Appeals, the Supreme Court expressed doubt “as to the wisdom of a policy under which an independent executor, accused of gross mismanagement of an estate, is not subject to removal by [a] probate court as any other executor or administrator” (403 S.W.2d at 353), the rule insulating an independent executor from removal should not be extended unless the probate court requires that conclusion, as the Supreme Court felt was the case in Bell.

The Bell decision is based primarily on the second sentence of § 3(aa) and the second sentence of § 145.

The first sentence of § 3(aa) merely provides that the term “personal representative,” as used in the Code, includes an independent executor. The second sentence provides that the fact that the term “personal representative” includes an independent executor “shall not be held to subject [independent executors] to control of the courts in probate matters with respect to settlement of estates except as expressly provided by law.”

The first sentence of § 145 merely provides that a testator may direct in his will that no action shall be had in the probate court “in relation to the settlement of his estate” other than the probating and recording of his will, and the return of an inventory, appraisement and list of claims of his estate. The second sentence then provides that when the will has been probated and the inventory, appraisement and list of claims have been filed by the executor and approved by the court, “as long as the estate is represented by an independent executor, further action of any nature shall not be had in the [probate] court except where this Code specifically and explicitly provides for some action in the [probate] court.”

According to Bell, the effect of the provisions referred to in the two paragraphs immediately preceding “is to establish these general tests for ascertaining existence vel non of the power [to remove an independent executor]: (1) whether removal of the independent executor for the assigned reasons requires the probate court to take action in connection with ‘settlement’ of the estate, and (2) whether the Code ‘specifically and explicitly’ provides for that action in the [probate court].” 389 S.W.2d at 606.

The two “general tests,” as stated in Bell, present problems of interpretation of the language used in formulating the tests. Did the Supreme Court mean that an independent executor- can be removed by the probate court only if removal for the “assigned reasons” requires the probate court to “take action in connection with ‘settlement’ of the estate,” and the Code “specifically and explicitly” provides for “that action” by the probate court? If this be the correct interpretation of the Bell language, the result is that removal of an independent executor is impossible in cases where removal does not require that the probate court take action in connection with settlement of the estate, even if the Code contains explicit and specific provisions for removal. If we bear in mind that, traditionally, the purpose of independent administration has been to free the independent executor of control by the probate court with reference to matters involving settlement of the estate, it is clear that an interpretation of Bell as permitting removal only when removal involves meddling by the court in matters concerning the settlement of the estate must be rejected as sheer nonsense.

The only reasonable interpretation of the Bell tests is to require that the second “test” — specific provision in the Code — -is irrelevant only where removal is sought because of conduct of the independent executor relating to settlement of the estate. This conclusion is almost inescapable if we bear in mind the language, already quoted, by which the Bell opinion points out that removal for mismanagement involves “passing upon his conduct in settling the estate,” and that to permit removal for mismanagement amounts to a grant of power to the court to control “acts of the independent executor in the settlement of the estate.”

The Bell test, then, may be restated as follows: (1) Does removal of the independent executor for the “assigned reasons” require that the probate court “take action in connection with the settlement of the estate?” If this question be answered in the affirmative, then we must ask: (2) Does the Probate Code “specifically and explicitly” vest the probate court with the power to take “that action”? It is clear that the term “that action” in the second portion of the test necessarily refers to the “action” referred to in the first portion — that is, “action in connection with the settlement of the estate,” rather than to the act of removal.

This interpretation of the Bell “tests” is justified not only by the language used in the opinion when such language is construed in context — a case involving a charge of mismanagement, but also by the provisions of the Code itself.

The second sentence of § 3(aa) prohibits action by the probate court only “with respect to settlement of estates” in the absence of express Code provision for such action. If the action by the court does not involve matters with respect to the settlement of the estate there is nothing in the second sentence of § 3(aa) disabling the probate court from taking such action. Insofar as the second sentence of § 145 is concerned, the disability created must be interpreted in the context of the entire section. The first sentence permits a testator to direct that no “action,” other than those enumerated, shall be had in the probate court “in relation to the settlement” of the estate. The prohibition in the second sentence against further action in the probate court, when read in the light of the first sentence, refers to further action in connection with the settlement of the estate.

This interpretation of the Code and of Bell in no way interferes with the realization of the purpose of provisions in a will for independent administration of an estate. It gives full effect to the testator’s desire that the courts not interfere in matters involving settlement of his estate.

The Bell opinion expresses concern about allowing accomplishment by “obliquity” of results which cannot be achieved directly. This expression of concern comes too late. It appears to be well settled that a district court can appoint a receiver to take control of an estate which is being administered by an independent executor. Stanley v. Henderson, 139 Tex. 160, 162 S.W.2d 95 (1942); Metting v. Metting, 431 S.W.2d 906 (Tex.Civ.App. — San Antonio 1968, no writ). In doing so, the courts have taken pains to insure that their action is deserving of the “obliquity” epithet by pointing out that although the appointment of a receiver necessarily divests the independent executor of the power to manage and control the estate, it is not necessary that the order appointing the receiver contain language removing the independent executor; such language would be “duplicative and unnecessary.” O’Connor v. O’Connor, 320 S.W.2d 384, 391 (Tex.Civ.App. — Dallas 1959, writ dism’d). In any event, to allow removal of an independent executor for reasons which do not involve inquiry into the manner in which he is settling the estate is not to permit the probate court to take indirect action in matters concerning settlement of the estate.

To construe Bell and §§ 3(aa) and 145, as does the majority in this case, is to assert that the Supreme Court, in adopting the Court of Civil Appeals in Bell, fell into error when it said that the probate court lacks power to remove an independent executor “unless the independent executor, properly appointed and qualified, was required to post bond and could not or would not do so.” 403 S.W.2d at 353. There is no provision in the Code which “specifically and explicitly” subjects an independent executor to removal by the probate court if he refuses or fails to post the bond required by that court. In fact, the Code contains no language, not even “unspecific and unexpli-cit” which permits removal for such cause, unless such authority is found in § 222(b)(3). The power of the probate court to require an independent executor to give bond is granted by § 149, which is found in Chapter 6, Part 4, of the Code, which deals with independent administration of estates. This grant of power contains no language authorizing removal of the independent executor if he fails to comply with the order requiring him to furnish bond. The only provisions authorizing removal of an executor or guardian for failure to furnish bond are found in Chapter 7, Part 2, of the Code, in §§ 214-217.

The provisions concerning removal for failure to file bond speak in terms of an “executor” or “guardian.” There is no basis for holding that either term includes an independent executor. The term “personal representative,” which does include an independent executor, does not appear in §§ 214 — 217. The result is that there is no provision for removal of an independent executor who fails to give the bond in the Code unless such grant of authority is found in § 222(b)(4), which permits removal of a “personal representative” (which term includes independent executor) because of failure to obey an order of the court having jurisdiction with respect to the performance of his duties.

At this point, it is in order to examine the Code provision, § 222, which authorizes removal of a “personal representative.” The first portion of that section authorizes removal without notice of personal representatives “appointed under provisions of this Code.” § 222(a). It can, perhaps be persuasively argued that, because summary removal is authorized only as to personal representatives “appointed under provisions of” the Probate Code, § 222(a), is not applicable to independent executors. Whatever may be the merits of this argument, § 222(b), which provides for removal of a personal representative only after such personal representative has been cited to appear and answer by personal service, is not limited to personal representatives “appointed under provisions of” the Probate Code. There can be no doubt, then, that § 222(b) is applicable to all personal representatives, including independent executors. There is nothing to prevent the application of such provisions to independent executors, except that §§ 3(aa) and 145, as interpreted in Bell, would prevent removal of an independent executor for mismanagement because removal on such grounds would involve control of the independent executor by the probate court in matters relating to “settlement of estates.” Assuming, as we must, that this is a correct interpretation of § 222(b)(4), which permits removal for gross mismanagement, when such section is read with §§ 3(aa) and 145, such holding, and the reasoning supporting it, cannot be given controlling effect when the removal is for causes which do not require the probate court to take action in connection with “settlement” of the estate.

Removal of an independent executor because he has lost the legal capacity to perform his duties, as authorized by § 222(b)(5), requires no inquiry into the manner in which he is managing the estate or into his conduct in the settlement of the estate. An “incompetent” independent executor is being removed not because of any mismanagement or other misconduct, but because he lacks the legal capacity to perform the acts necessary to settle the estate. Removal because of legal incapacity to perform does not involve intrusion by the probate court into the manner in which the independent executor is discharging his managerial and administrative responsibilities. Since passing upon the legal capacity of the independent executor to perform his duties does not involve passing judgment on the manner in which he is performing such duties, removal of such a personal representative for lack of legal capacity does not constitute an intrusion by the probate court into the forbidden area of “matters with respect to settlement of estates.”

Removal of an independent executor for lack of legal capacity to perform his duties does not subject the independent executor to control by the probate court in matters relating to the settlement of the estate. Removal of such an executor for failure to give bond when required to do so under § 149, on the other hand, does of necessity inquire into his conduct in matters concerning the settlement of the estate, since the order requiring a bond can be based on a finding that the independent executor is guilty of mismanagement, a finding which requires inquiry into the area of matters relating to the settlement of the estate. Where, because of mismanagement, an independent executor is required to give bond and is subsequently removed for failure to comply with the order, it is clear that the probate court is, by resort to “obliquity,” meddling in matters relating to the settlement of the estate. Since, as a practical matter, an independent executor who has been found guilty of mismanagement and, because of such finding, required to give bond, will be unable to find sureties willing to vouch for his honesty, it is apparent that the requirement of a bond is, in fact, but the first step in the process of removal for mismanagement.

The conclusion that a probate court may directly remove an independent executor who has lost the legal capacity to perform his duties does not run counter to the notion that the Legislature, in adopting the Probate Code, did not undertake to make radical changes in the former probate law. Except for the oft-repeated dicta to the effect that an independent executor can be removed only for failure to file bond when required to do so under § 149, our attention has been called to no statutory provision or judicial holding to the effect that an independent executor cannot be removed on the ground that he has lost the legal capacity to act. In any event, the conclusion that an independent executor can be removed by the probate court for lack of legal capacity finds as much support in the Probate Code as the statement that an independent executor can be removed for failure to give bond, and removal for the former reason requires no inquiry into his conduct concerning matters relating to the settlement of the estate, as does removal for the latter reason.

      . Unless otherwise indicated, all statutory references are to sections of Tex.Prob.Code Ann. (1956).


author: McKAY, Justice.

text:
    CITY OF HOUSTON, Appellant, v. Chauncey RIGGINS, Appellee.
    No. 1138.
    Court of Civil Appeals of Texas, Tyler.
    June 15, 1978.

      Roy F. Martin, III, Asst. City Atty., Houston, for appellant.
    Rod V. Steinburg, Michael Y. Saunders, Helm, Pletcher, Hogan & Burrow, Ray Put-ney, Houston, for appellee.
   McKAY, Justice.

Appellee Chauncey Riggins brought suit against the City of Houston (City) for damages for personal injuries received when the boat in which appellee was riding went over the spillway at the dam on Lake Houston. Trial was before a jury, and the trial court, based upon the verdict, rendered judgment for appellee for $36,850.00 plus stipulated medical expenses of $1,956.00, the total judgment being for $38,806.00. The City brings this appeal on several points.

The pleadings of appellee allege that the City was negligent (1) in failing to provide a barricade or sufficient warning signs or lights or other instruments around the dam to warn of dangerous conditions created by the high level of water in the lake, and (2) in failing to warn persons in boats which the City could reasonably foresee would be transversing the property of the dangerous conditions. The City answered by general denial, and further alleged that any injuries to appellee were caused by his own acts of negligence, each of which was a proximate cause of the accident and any injuries. It was further alleged by the City that conditions on Lake Houston were open and obvious, that appellee had actual and full knowledge of the dangers of boating on said lake, or that he was charged by law with such knowledge, and that the City owed appellee no further duty to warn of danger, and consequently breached no legal duty to appellee, and that appellee voluntarily exposed himself to such danger and voluntarily assumed all the risks. Alternatively, the City plead unavoidable accident.

The City alleged by trial amendment that appellee failed to comply with its charter notice provisions, but the trial court denied the City’s motion for leave to file.

The City’s points one and two complain that the trial court erred in admitting testimony relating to other dams because such evidence was irrelevant and shifted the burden of proof. Appellee’s witness Keithley was permitted to testify over City’s objection about markings or buoys or other warning devices at spillways on other lakes at other times. The City objected that the markings or construction or the existence or anything about any of the other spillways or other lakes was irrelevant to the conditions which existed on April 25, 1973, at Lake Houston. The trial court overruled the City’s objections. Thereafter appellee introduced testimony from other witnesses to the same effect as that of Keithley, without objection by the City; and City cross-examined all of these witnesses about conditions at other lakes. If the trial court erred in admitting Keith-ley’s testimony, City’s objection to it was waived for failure to object to similar evidence later introduced by appellee. An objection to evidence is waived by permitting other witnesses to testify without objection to the evidence complained of. San Antonio & A. P. Ry. Co. v. Lester, 84 S.W. 401 (Tex.Civ.App.1904, rev’d on other grounds, 99 Tex. 214, 89 S.W. 752); Howell v. Bowden, 368 S.W.2d 842 (Tex.Civ.App.-Dallas 1963, writ ref’d n. r. e.); 23 Tex.Jur.2d, Evidence, sec. 208, p. 320. Points one and two are overruled.

By points three and four, City maintains the trial court erred in rendering judgment for appellee because there was no evidence, or insufficient evidence, to support the jury’s answer to special issue one. We overrule these points.

Special issue one inquired: “Do you find from a preponderance of the evidence that there was any negligence on the part of the City of Houston on the occasion in question which was a proximate cause of the occurrence in question?” The jury answered: “We do.”

The witness William Keithley called by appellee, testified that in 1963 there was a “restricted area” sign near the spillway on Lake Houston, but no signs reading “danger.” He said he found the buoys gone, expanses where there were no buoys or rope — “nothing to indicate that there was any reason to not go down there,” and that that condition existed through 1973. He further testified that when the buoys were there, they were small (approximately five to six inches around and approximately two feet tall), and approximately 100 yards apart, and that there was a small rope between the buoys “but it wouldn’t really prevent you from going through there”; that sometimes the rope would be above the water and at other times it would be on or under water; and that as you go toward the area of the spillway, before you get to it, you see the sky and the trees, there being nothing on top of the spillway.

Appellee’s witness Curtis Blackmon, Jr., testified the boat in which appellee and others were riding when it went over the spillway was owned by him, and that he took delivery of it the day before the accident; that he did not know Lake Houston had a spillway. He said there were eight people in the boat — five men and three women in a 17¾ foot boat; that his stepbrother, John Mendenhall, was operating the boat when the accident occurred; that they were heading for some trees to find a better fishing place and it was a complete surprise when they went over the spillway; that he did not see anything that caught his attention to indicate that there was a spillway in that area. He further testified he was not looking for any buoys or markers and did not see any; and that he had had “a couple of beers,” and Chauncey had “one or two cans.”

Sean Michael McGown, called by appellee, testified he was in the boat at the time of the accident, and when the boat approached the spillway, he saw “water running up the trees, tall pine trees,” and he had no idea there was a spillway there and saw no indication the boat was about to enter a dangerous area. He further said he saw nothing to indicate there was a spillway and saw no signs or writing or ropes or buoys visible to him, and the boat was moving approximately 20 miles per hour when it went over the spillway.

The witness John Mendenhall testified that he had no idea there was a spillway on Lake Houston; that he was operating the boat at the time it went over the spillway; that as the boat approached the spillway all he could see was water and trees; and that he did not see any warning signs or markers about a danger area.

Appellee’s witness Lloyd Koenig, a commercial photographer, testified that when he was at the spillway on Lake Houston on October 21, 1976, there were markers and buoys approximately 300 yards from the spillway, and that buoys were roughly 100 yards apart in that area; that when you look in the direction of the spillway you see the spillway and the tree line appears to be the shore tree line, but such tree line is on the other side of the spillway, and that you have a false indication that it is water all the way to land, and that situation continues after you are inside the buoys; that the buoys were small and you had to get very close to them to see the writing on them that indicated there was a spillway and dam area; that if you were actually looking for buoys in the area and observing very closely there was a possibility of seeing those that are there; that he did not “see any sign out there that said ‘spillway’ or ‘danger of spillway’ ”; and that you could not tell that there was a spillway there as you approached in the boat as there was nothing on top of it to indicate its location.

The witness Bill G. Healer, manager of water production and distribution for the City of Houston, testified as a witness for the City. His testimony was that the spillway elevation was 44.50 feet above sea level and the length of the spillway was 3160 feet and the dam was approximately 20 feet higher than the spillway. He further said the buoys were placed in the spillway area in 1969 and remained there until the time of the accident involved here, and that such buoys were Coast Guard approved commercial buoys approximately 12 to 14 inches around at the top and tapered from the bottom — approximately 18 inches in diameter at bottom; that on April 25,1973, there was approximately six inches of water flowing over the spillway and there 15 or 16 buoys which were placed approximately one-quarter mile from the spillway, and there were six telephone poles in the area with signs on them 18 inches long with four-inch lettering; that occasionally a buoy would become lost, but not often because they were anchored with a concrete anchor and a galvanized chain and were 300 to 400 feet apart; that the buoys protruded from the water approximately 40 inches and had four-inch lettering on them; that when the water is going over the spillway the spillway itself cannot be seen; and that he believed barricades on the spillway would be extremely hazardous because pressure of high water and debris would wash it away or alter it and damage the spillway.

The parties here are not in complete accord as to whether appellee was an invitee or a licensee at the time of the accident. If the owner or occupant of premises invites the public to come upon his premises he owes such persons the duty to have such premises in a reasonably safe condition and to give warning of concealed or latent perils so that invitee would not be injured. Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, 306 (1936); Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074 (1941). If the injured person was a licensee the duty owed him by the owner or occupier of the premises was not to injure him by willful, wanton or gross negligence; but if the li-censor knows of a dangerous condition, and licensee does not, a duty is owed to either warn the licensee or to make the condition safe. State v. Tennison, 509 S.W.2d 560 (Tex.1974); Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561, 562-3 (Tex.1976).

It should be pointed out that the rule now seems to be that whether the injured party be an invitee or a licensee, the owner or occupier of premises owes a duty to such person to warn him of a dangerous condition known to owner or occupier and not known to invitee or licensee, or to make the condition safe. In our opinion the evidence was sufficient to raise the question of whether the City was negligent.

Appellee introduced in evidence the City’s answer to a request for admissions in which the City admitted it had received notice or complaint of boating accidents or the danger of same at or involving the Lake Houston spillway prior to the date of the accident and injury to appellee, and the City had either personal knowledge or reports of accidents involving boats going over said spillway prior to the accident in the case.

In points five through eight appellee contends that special issue two was incorrect as a matter of law, that there was no evidence or insufficient evidence to support the jury’s answer, and that parts A, B, C and D allowed a double recovery. We disagree.

Appellee testified that his shoulder was hurting while he was in the hospital; that he could not hear out of his right ear, and what he thought was blood was coming from his ear; that his right eye would “jump” and fluid would continuously drain from it; that he remained in the hospital approximately 13 days and it took him approximately two months to get on his feet; that at the time of trial he still could not hear in his right ear and as a result could not distinguish from what direction sounds came from; that he had an equilibrium or balance problem; that for six or seven months he did not have total movement of his left shoulder, and felt some pain, and did not have full use of his left arm; that his eye problem cleared up with no impaired vision; and that he had some cuts on his elbow and lower arm. He further testified that he had difficulty in his job because when he was using the telephone with his left ear he could not hear anything else; that he had and has a problem in selling insurance because he can hear out of only one ear; that he is self-conscious knowing that with a husband and wife together with him he may not be able to hear everything they are saying, and that he must ask both of them to get to one side because he has a hearing problem.

The City argues that the damages found by the jury are excessive although there is no point of error on that contention. “In determining whether a verdict is excessive the evidence must be viewed in a light most favorable to the award.” Chemical Express v. Cole, 342 S.W.2d 773, 780 (Tex.Civ.App.-Dallas 1961, writ ref’d n. r. e.). Courts are reluctant to disturb the findings of a jury on the grounds of excessiveness of the damages if there is any evidence to sustain the award. Hammond v. Stridden, 498 S.W.2d 356, 363 (Tex.Civ.App.-Tyler 1973, writ ref’d n. r. e.); Chemical Express v. Cole, supra.

Appellee also testified that before the accident he had worked for Upjohn with a salary of $850.00 per month, and that after the accident he went to work for Tennessee Gas Pipe Line Company making $650.00 per month; that he had made arrangements to take the gas pipe line company job before the accident; that later he went to work at Pix Shoe Store part time making $150.00 per week and continued to work for the gas pipe line, but quit Tennessee Gas to work for Pix full time making $250.00 to $300.00 per week; that he later changed to selling insurance for American National (and was so doing at the time of trial) with average monthly earnings of $1,830.00 per month.

The fact that an injured party may earn as much or more than he did before his injury does not bar him from recovering for loss of earning capacity. Thomas v. Jenkins, 481 S.W.2d 464, 466 (Tex.Civ.App.-Amarillo 1972, writ ref’d n. r. e.); Mikell v. LaBeth, 344 S.W.2d 702, 707 (Tex.Civ.App.-Houston 1961, writ ref’d n. r. e.).

We do not believe there was reversible error in the submission of special issue two. These points are overruled.

In its points nine and ten the City maintains that the trial court erred in submitting instructions to the jury on the duty owed by the City and notice of any defect, and such instruction given placed too high a duty of care on the City because after notice of any defect the City would have a reasonable time to repair any defect.

A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection, and any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission or fault in the pleading, shall be deemed waived unless specifically included in the objections. T.R.C.P. 274. Where one objects in his brief on appeal to the court’s charge on a ground which he did not assert in the trial court, that objection is waived. See Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 388-389 (Tex.Civ.App.-Corpus Christi 1976, writ ref’d n. r. e.), cert. denied 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095; Northshore Bank v. Palmer, 525 S.W.2d 718 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref’d n. r. e.).

In its objections to the court’s charge, appellant states “the duty owed to the licensee is not to harm him by willful, wanton or gross negligence. Such duty is omitted from the instruction of the Court.” On appeal, appellant argues that it must have had a reasonable time after notice of the defect in which to repair before the accident in question.

While appellant’s objection in the trial court must arguably comply with R. 274, its ground on appeal was not asserted in the trial court. We recognize that the grounds for the objection both at the trial court and before this court relate to the duty of care owed by appellant. Appellant cannot decide if the proper instruction was omitted or if that which was submitted was improper, nor can the City decide what duty it owed to appellee. Appellant failed to point out distinctly in his objections to the charge of the court the grounds which he asserts here. The objection is, therefore, waived.

The City maintains that the duty owed to persons on Lake Houston is the same duty as is owed by the City to persons on its streets and sidewalks, and relies upon City of Houston v. Barbare, 451 S.W.2d 522 (Tex.Civ.App.-Houston [1st Dist.] 1970, writ ref’d n. r. e.). In Barbare the plaintiff stepped into a hole in a city park in Houston and sued for damages for personal injuries. A trial judgment for plaintiff was reversed because the plaintiff did not obtain findings that the City caused the top over the hole to be missing or that the City had actual knowledge that it was, or that such condition had existed for such a length of time that in the exercise of ordinary care the City could have discovered and remedied it prior to the accident. Barbare was reversed because no standard was used in defining the City’s duty to discover the hole. The general rule in Texas is that before a city may. be held liable for injury caused by a defect in the city sidewalks or streets the city must have had actual or constructive notice of such defect. City of San Antonio v. Esquivel, 163 Tex. 222, 353 S.W.2d 410, 411 (1962).

The above cited general rule is not applicable to the ultimate issue before us. Whether a dangerous condition existed and whether the City had notice of the condition are not in issue here.

The City recognized that the area on Lake Houston near the spillway was dangerous, or potentially dangerous, and took steps to warn the persons who would be on the lake of such condition by placing buoys and markers in the water near the spillway. In our view the ultimate issue which the jury should have been asked was whether the City had placed warnings which adequately warned appellee and others of the condition near the spillway. No such issue was requested or given, and there was no objection made by the City to issue one. In view of the issue submitted it is not known what act of negligence the jury may have found against the City — the issue as submitted permitted the jury to answer in the affirmative without specifically naming an act of negligence proximately causing the accident and injury. While Rule 277, T.R.C.P., gives the trial court some discretion in submitting issues broadly, we believe in a negligence case of this nature separate issues on each element would be the better practice.

The specific instruction to which the City objects in its brief was “the duty to inspect and discover any dangerous condition associated with the area in question.” The objection made by the City to the charge was “We object to the instruction of the Court regarding the duty, if any, owed by the City of Houston to the Plaintiff.” A city which owns and operates a lake for a municipal water supply is required to exercise ordinary care in the operation of the lake, and it is subject to the same standard of care as any other person. City of Denton v. Gray, 501 S.W.2d 151, 153 (Tex.Civ. App.-Ft. Worth 1973, writ ref’d n. r. e.).

Under the record here presented, we do not believe there was reversible error. We are not to be understood as approving in toto the instruction submitted to the jury. However, we have not been presented with a properly preserved point of error or the proper grounds to merit sustaining the point of error. Points nine and ten are overruled.

By its two concluding points the City maintains the trial court erred in denying the City leave to file its trial amendment, and in overruling its motion for judgment non obstante veredicto. The verdict of the jury was received on February 4,1977. The City filed its Motion for Leave to File Trial Amendment on February 10, 1977, together with its trial amendment which alleged that appellee failed to comply with the provisions of the Charter of the City of Houston which required a notice of claim for injuries against the City must be given to the May- or and City Council in writing, duly verified, within 90 days after such injuries were allegedly sustained, setting out when, where and how such injuries occurred and the apparent extent thereof. The trial court heard the City’s motions on March 7, 1977, overruled them, and rendered judgment for appellee the same day.

The City argues that its trial amendment contained only a matter of law, did not contain any controverted fact issue, did not delay the trial, and therefore should have been allowed. The notice given to the City concerning appellee’s injuries and claim was by letter from his counsel to the Mayor and was not verified.

Permitting the filing of a trial amendment is within the sound discretion of the trial court and unless it clearly appears that such discretion has been abused, its order permitting or refusing a trial amendment will not be disturbed. State v. Beever Farms, Inc., 549 S.W.2d 223, 225 (Tex.Civ.App.-San Antonio 1977, writ ref’d n. r. e.).

A defense that a party failed to comply with a notice provision in a city charter is one which must be raised by a verified pleading under Rule 93(m), T.R. C.P. Appellee pled that all conditions precedent to the institution of the suit had been met and that notice of the claim had been given, and the City did not specifically deny, by verified pleading, that all conditions precedent to filing the suit had been performed. It also appears that the allowing of the trial amendment six days after the jury verdict could and would have presented fact questions whether the City had actual notice of the injury and claim, or whether the City might be subject to the defenses of waiver and estoppel. In our view the trial court did not abuse its discretion in denying the motion for leave to file the trial amendment.

A motion for judgment non obstante ve-redicto should be granted only when a directed verdict would have been proper. Rule 301, T.R.C.P. In the state of the record a directed verdict would not have been proper.

Points eleven and twelve are overruled.

Judgment of the trial court is affirmed.

      . SPECIAL ISSUE NO. 2
      “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Chuancey Riggins for his injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?
      “You shall consider the following elements of damages, if any, and none other:
      “a. Impairment of loss of hearing in the past,
      “b. Impairment or loss of hearing which, in reasonable probability, he will suffer in the future.
      “c. Physical impairment other than loss of hearing in the past.
      “d. Physical impairment other than any loss of hearing which, in reasonable probability, he will suffer in the future.
      “e. Loss of earnings in the past.
      “f. Loss of earning capacity which in reasonable probability he will sustain in the future.
      “g. Physical pain and mental anguish in the past.
      “h. Physical pain and mental anguish which, in reasonable probability he will suffer in the future.
      “Answer in dollars and cents, if any.
      “Answer: $36.850.00.”


author: DUNAGAN, Chief Justice.

text:
    The FIRST NATIONAL BANK OF JEFFERSON, Appellant, v. LACO CONSTRUCTION COMPANY, Appellee.
    No. 1149.
    Court of Civil Appeals of Texas, Tyler.
    June 15, 1978.
    Rehearing Denied July 20, 1978.
    J. R. Cornelius, Kyle S. Morrison, The Cornelius Law Firm, Jefferson, for appellant.
    Wayne H. Prescott, Brown, Maroney, Rose, Baker & Barber, Austin, Atchley, Russell, Waldrop & Hlavinta, Texarkana, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal of an order of the trial court sustaining the plea of privilege of the defendant, Laco Construction Company, Inc., the appellee. The appellant, The First National Bank of Jefferson, seeks to hold venue in Marion County under subsection 5 of Article 1995, V.A.C.S.

The following facts gave rise to the institution of this suit:

1. On or about July 23, 1975, Laco Construction as contractor, and Jefferson Furniture Corporation as supplier, each acting by and through a duly authorized officer thereof, entered intp a contract and purchase order whereby Jefferson agreed to supply to Laco all kitchen cabinets, utility shelving and certain other items described therein in connection with a project at Sheppard Air Force Base for a total contract price of $191,000.00.

2. On or about April 22, 1975, Jefferson Furniture Corporation assigned its accounts receivable to The First National Bank of Jefferson, the said accounts receivable being pledged as security for a loan that The First National Bank of Jefferson eventually foreclosed upon.

3. On or about July 16, 1976, and August 5, 1976, Jefferson Furniture shipped certain cabinets to the appellee. The appel-lee has refused to pay for the cabinets claiming that the cabinets were of inferior quality. The First National Bank of Jefferson instituted this suit as assignee of the accounts receivable of Jefferson Furniture Corporation.

The agreement entered into between Laco Construction Company and Jefferson Furniture Company on July 23, 1975, did not specify a particular county wherein the contract was to be performed. The appellant is relying upon several invoices that appear in the record which were purportedly sent along with the cabinets which were delivered to the appellee. These invoices contained a provision setting venue in Marion County. The appellant sets forth several points of error which contend that venue may be maintained in Marion County pursuant to subsection 5 of Article 1995, V.A. C.S.

Subsection 5, Article 1995, V.A.C.S., provides:

“If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

In order to defeat a defendant’s privilege of being sued in the county of his residence, when challenged, the burden is upon the plaintiff to allege and prove, by a preponderance of the competent evidence, the facts necessary to bring the case within the particular exception to Article 1995, as alleged. Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824 (1931); Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935); Collins v. F. M. Equipment Co., 162 Tex. 423, 347 S.W.2d 575, 577 (1961); Admiral Motor Hotel of Texas, Inc. v. Community Inns, 389 S.W.2d 694, 698 (Tex.Civ.App.—Tyler 1965, no writ).

Of critical importance in this appeal is the question of whether or not the agreement entered into on July 23,1975, between Laco Construction Company as contractor and Jefferson Furniture Company as supplier constituted a complete agreement between the parties. The appellant seeks to establish venue in Marion County by virtue of a clause contained in the invoices previously mentioned stating that “all accounts due and payable at Jefferson, Marion County, Texas.” If the agreement of July 23, 1975, can be said not to be a complete agreement, thus allowing certain particulars to be agreed upon at a later date, then the invoices in question may be proven to constitute part of the agreement between the parties.

The appellant relies upon the fact that the agreement of July 23, 1975, contains a provision that monthly invoices must be sent to the appellee before the appellee will be obligated to pay for the cabinets received. We do not feel that this clause makes the agreement of July 23rd an incomplete agreement. The contract did not designate any place for payment of this account. The provision requiring monthly invoices to be sent to the appellee does not constitute an unusual business practice since such invoices usually contain an itemization of the products shipped and the cost that was charged for them. We do not think the requirement of such invoices leaves terms of the original agreement open to be determined at a later date. The terms of the contract were set out in the original agreement and the sending of these invoices was merely one of the terms of the contract.

It is said in Barnwell v. Fox & Jacobs Construction Company, 469 S.W.2d 199 (Tex.Civ.App.—Dallas 1971, no writ history) at page 204:

“. . . In those cases where it is shown that the invoice relied upon came subsequent to the consummation of a completed agreement between the parties it is held that such could not form the basis of an exception to the venue statute. In other words, a completed contract, which does not include provisions establishing place of performance, may not be enlarged or altered to include these venue provisions by a later invoice, especially one shown to be nothing more than a delivery receipt, [citing cases]”

Even if the agreement of July 23, 1975, could be held to be an incomplete agreement allowing some terms and conditions of the contract to be agreed upon at a later date, there is no showing that the invoices in question were properly agreed upon and executed so as to become a part of the contract. The only testimony in the record is testimony by an individual who is an executive vice president of the First National Bank of Jefferson. Nowhere in the record does this individual give any evidence that he has knowledge that these invoices were in fact sent to or received by Laco Construction Company. It is true that a packing list was returned after being signed by a representative of the appellee, but this packing list did not contain any provision setting venue in Marion County and we do not feel that this packing list can be equated to an invoice, the two items being separate documents.

It is now definitely settled in Texas that it is not necessary in order to constitute a “contract in writing” that the agreement be signed by both parties; one may sign and the other may accept by his acts, conduct or acquiescence in the terms of the agreement. Dowdell v. Ginsburg, 244 S.W.2d 265, 266 (Tex.Civ.App.—Fort Worth 1951, n. w. h.). In the instant case, there is no testimony showing that the invoices were ever received by the appellee. Also, it is apparent on the face of these invoices that neither party has signed such invoices. We do not feel that the ex parte statement of the appellant’s assignor is sufficient to establish venue under subsection 5 of Article 1995. West Flour Mill, Inc. v. Vance, 430 S.W.2d 232, 235 (Tex.Civ.App.—Tyler 1968, writ dismissed). The appellant’s first five points of error are overruled.

In its sixth point of error the appellant contends that 12 U.S.C.A. § 94 is applicable to said venue at a county other than the county of the defendant’s residence. Title 12 U.S.C.A. sec. 94 (1945) provides:

“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

The appellant cites no authority for the proposition that this section of Title 12 of the United States Code Annotated governs venue when a bank brings an action as a plaintiff. We have found no authority to support that position. A reading of the section in question shows that the section deals with actions against associations covered in the section. We do not believe that this section is applicable to determine venue when a bank institutes an action as plaintiff. Accordingly, the appellant’s sixth point of error is overruled.

The judgment of the trial court is affirmed.