author: MORRISON, Judge. McDONALD, Judge

text:
    Jessie J. GAGE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 37079.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.
    Rehearing Denied Dec. 16, 1964.

      Evans & Egger by Samuel L. Egger, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., John G. Benavides and Raymond A. Wietzel, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft with a prior conviction for an offense of like nature alleged for enhancement; the punishment, 10 years.

This is a companion case to McDonald v. State, Tex.Cr.App., 385 S.W.2d 253.

The State’s witness Gilmore testified that he was approached by appellant who asked for aid in locating a certain street address and who immediately displayed a large sum of money and offered to compensate Gilmore if he would drive him to a colored part of the city. On the way appellant pointed to McDonald, another colored man, standing at a bus stop and suggested that they secure his aid in locating the address. McDonald was willing to aid and proceeded with them to a spot in the colored section where Gilmore’s pickup was brought to a halt. Appellant left momentarily and during his absence McDonald displayed a three card monte game indicating to Gilmore how he (Gilmore) might know the winning card. Upon appellant’s return a game between appellant and McDonald got under way and appellant suggested that Gilmore select the card. The stakes grew high and McDonald was unable to claim a pot because he could not prove his ability to pay had he lost. At this juncture the net began to close and McDonald offered to divide his winnings with Gilmore if he would prove his ability to pay. This Gilmore did by withdrawing $2,000 from his bank which he was led to believe would be returned to him together with a sum for its use. Appellant claimed to be an illiterate resident of a small town in Georgia, and at the conclusion of the “game” the large sum of money, including Gilmore’s $2000 was placed in an envelope supposedly addressed to Gilmore which appellant placed in a mail box. By this time Gilmore’s suspicions were aroused and he waited for the mailman. Later at the post office the letter was found to contain folded envelopes but not money. Of course, by this time appellant and McDonald had vanished.'

Throughout the entire enterprise McDonald and appellant pretended to be strangers and hostile to each other whereas McDonald pretended to be Gilmore’s partner in the transaction.

The State fortified its case by showing that appellant was not illiterate and was a resident of. San Antonio, and we hold the evidence sufficient to support the conviction. See Walker v. State, 139 Tex.Cr.R. 623, 141 S.W.2d 618, and Porter v. State, 67 Tex.Cr.R. 578, 4 S.W. 889.

There can be no validity in appellant’s contention that this prior Pennsylvania conviction was not usable for enhancement because Pennsylvania’s felony statute introduced in evidence sets no minimum value on the property acquired by fraudulent means. “The Grand Inquest” upon which appellant was convicted was for having fraudulently acquired $68.00 in money and we are not therefore called upon to pass on the questions raised by appellant.

By formal bill of exception appellant contends that he was forced to give evidence against himself when the court, at the request of the State and in the absence of the jury, directed appellant over his counsel’s objections to be fingerprinted in a room adjoining the courtroom on the day of his trial.

Since this is a question of first impression, in this State we are pursuaded to follow the two courts which have already passed upon this question and the expressions formed in Wigmore as shown below.

In Shannon v. State, 207 Ark. 658, 182 S.W.2d 384, the Supreme Court of Arkansas held that where an accused was charged with murder and had been arrested but through oversight was released on bail before his fingerprints were taken, the trial court did not err in entering an order requesting the accused to be fingerprinted.

In State v. La Palme, 104 N.H. 97, 179 A.2d 284, the Supreme Court of New Hampshire held that after a finding of guilty and release on bail the defendant was still in the constructive custody of the court and could not be heard to complain of an order of the court that he be fingerprinted.

We quote from Wigmore on Evidence, McNaughten 1961 Ed., Sec. 2265, p. 386:

“If an accused person were to refuse to be removed from the jail to the courtroom for trial, claiming that he was privileged not to expose his features to the witnesses for identification, it is not difficult to conceive the judicial reception which would be given to such a claim. And yet no less a claim is the logical consequence of the argument that has been frequently offered and occasionally sanctioned in applying the privilege to proof of the bodily features of the accused.”

This court has in the past demonstrated its reluctance to extend the rules announced in Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706, and Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381, as appellant would have us do in the case at bar. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, can have no application because appellant’s counsel was present at all times.

The court’s timely qualifications of appellant’s Bill of Exception #3 demonstrates that no injury to appellant resulted from, the incident.

Finding no reversible error appearing, the judgment is affirmed.

McDONALD, Judge

(dissenting).

The majority opinion erroneously construes two cases which they cite and rely upon. Judge Morrison says in the majority opinion that “we are persuaded to follow the two courts which have already passed upon this question”, referring to the taking of appellant’s fingerprints. In Shannon v. State, 207 Ark. 658, 182 S.W.2d 384, the Supreme Court of Arkansas, as pointed out in the opinion, was dealing with a case involving the fingerprinting of a defendant before his trials while he was out on bail. Shannon had not been fingerprinted through oversight. In State v. La Palme, 104 N.H. 97, 179 A.2d 284, the defendant was ordered to be fingerprinted after a finding of guilty and the posting of bail.

• Texas has long followed the practice or rule which recognizes the right of an officer to take a mug shot and fingerprint a prisoner immediately upon his confinement to jail. I am heartily in accord with this procedure and find no disagreement with it. However, we are not here concerned with this question and we do not, by any means, plan on limiting this right or disturbing it. 'This procedure is valuable to law enforcement officers in establishing the identity of inmates, disseminating this information to «other officers throughout the country, and assisting in the apprehension of a criminal and identifying escapees and wanted criminals.

In the case at bar, as reflected by the bill of exception but not by the majority opinion, the appellant had already been fingerprinted by a trusty in the jail and the entire purpose of the Assistant District Attorney in moving the Court for the order to direct this appellant to submit himself to again be fingerprinted was actually to enable the state to produce a better witness than the jail trusty, as it is noted that the state’s counsel told the Court in response to the Court’s query about whether or not appellant had been fingerprinted when he was originally arrested, “He most likely was; but it was a trusty who could not identify the defendant and his credibility would not be of the highest nature." It is clear to me from the record that the state was not initially fingerprinting a prisoner. They were using this vehicle as an avenue to accelerate the credibility of their witness by this time having a police officer who was a fingerprint expert to take the prints -of the appellant under an order of the Court. This policeman expert later took the stand as a State’s witness and testified fully for the state, and probably his testimony was no doubt more credible than testimony that would have been given by the jail inmate trusty who took the original prints •earlier. The record reflects that these fingerprints were taken after an announcement of “Ready” on the part of both sides, after the trial had started, and they were used in evidence not just for the purpose of identifying appellant, but they were used by the state to prove the prior conviction in the state of Pennsylvania.' While this action of the trial court might not have amounted to testimonial compulsion in the literal sense, it did for all practical purposes compel appellant to give testimony against himself.

I do not think that this Court would be extending the rule in Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706, and in Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381, by following these precedents in the case at bar. In Apodaca the defendant was compelled to walk straight lines, turn sharply, put his finger to his nose and urinate in a bottle. A police officer testified that the defendant was ordered to act. The case was reversed as being a demonstration by an act which tends to self-incrimination which is as obnoxious to the constitutional provision that one accused of crime shall not be compelled to give evidence against himself as self-incrimination by words. In the Beachem case the defendant was in jail and he was required to say certain words so that a state's witness could identify him. The witness’s identification of the appellant as the robber was based upon evidence produced by appellant and was obtained, according to the opinion, in such a manner as to bring it within the constitutional provision prohibiting self-incrimination.

It is apparent to me that the appellant, Apodaca and Beachem all three were required to perform acts which incriminated them. It seems to me that the case at bar falls squarely within the rule announced in these two cases. It does not seem to me that this Court should entertain a reluctance to extend these rules announced, as Judge Morrison points out.

This Court should either follow these two cases, or it should overrule them.

The quotation from Wigmore on Evidence, cited by the majority, is not in point and may be distinguished on its face from the facts in this case.

I respectfully dissent to the affirmance of this case.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    Vera CATON, Appellant, v. O. J. RICHARDSON, Appellee.
    No. 7438.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 22, 1965.
    Allen, Allen & Reavis, Perryton, Mc-Cown & Cobb, Dumas, for appellant.
    Stone & Stone, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from a summary judgment involving a medical malpractice case filed by Vera Catón, appellant, against O. J. Richardson, M. D., appellee, classified as a general practitioner.

• The pleading’s, the depositions of Dr.. Richardson and Dr. Loyde H. Hudson, M. D:, and affidavits of Dr. Richardson and Mrs.- Vera Catón, together with the motion for summary judgment constitute the record in the case upon which the trial court rendered its judgment. The only point before us is that a fact issue was raised by the- pleadings, affidavits and depositions.

We start with the premise that has been settled by our Supreme Court, to the effect that in passing upon Rule 166-A, V.A.T.R.: “The burden of proving that there is no genuine issue of any material fact is upon the movant, and ‘All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment.’ ” Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

The court hearing the motion must determine if there are any issues of fact to be tried, and is not to weigh the evidence or determine its credibility. His “ ‘task is analogous to that which he performs on a motion for directed verdict. He accepts as true all evidence of the party opposing the motion which tends to support such party’s contention, and gives him the benefit of every reasonable inference which properly can be drawn in favor of his position.’ ” Gulbenkian v. Penn, supra.

The suit being a medical malpractice case there are also settled rules of evidence in Texas necessary to follow in order for a patient to make the necessary proof to constitute a cause of action for malpractice against a physician.

In 1949 in the case of Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1, our Supreme Court said:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he' proves by a doctor of the same school of practice as the defendant:
(1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.”

Later opinions have tempered the cate- ■ gorical statement just quoted to the extent that the general rule of exclusion is subject to certain limitations such as:

“(1) Where the particular subject of inquiry is common to and equally recognized and developed in all fields of practice * * *
“(2) [Wjhere the subject of inquiry relates to the manner of use of electrical and mechanical appliances in common use in all fields of practice * Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933.

Our own court has said in effect that it would be unrealistic, for example, to hold that medical doctors with equally as much or more training than osteopaths would not be qualified to testify against them in the field of obstetrics and gynecology, even though trained in a different school of medicine. Welch v. Shaver, Tex.Civ.App., 351 S.W.2d 588, 589 (N.R.E.). However, where the question involves testimony de-uending on medical diagnoses or recognized medical treatment in the medical field the rules of Bowles v. Bourdon, supra, [with certain exceptions such as some of those we have mentioned] “correctly states the recognized general rule, the basis for which is said to be that ‘when a patient selects one of the several recognized schools of treatment, he thereby adopts and accepts the kind of treatment common to that school; and the care, skill, and diligence with which he is treated, when that becomes a question in the courts of this state, must be tested by the evidence of those who are trained and skilled in that particular school of treatment.’ ” Porter v. Puryear, supra (set aside on other grounds, Puryear v. Porter, 153 Tex. 82, 264 S.W.2d 689).

Appellant’s alleged cause of action for malpractice has as its basis, that following surgery for removal of “certain veins” of Tier right leg, which the medical testimony shows was the saphenous vein, she developed postoperative thrombophlebitis. Her principal contention for negligence of Dr. Richardson’s diagnosis and surgical procedure that she claims proximately resulted in the edema of the right lower extremity is that his deposition shows that he gave her the Trendelenburg test to determine the patency of the deep circulation before removing the superficial vein above referred to, whereas her affidavit denies that he did so, which she contends raises a fact issue. The test mentioned involves the application of a tourniquet to the thigh to determine if the deep veins are filling, so as to leave adequate circulation in the leg after the saphenous vein is removed.

Dr. Richardson had performed his surgery for removal of the varicose vein on February 13, 1962. Because her mother was ill with pneumonia he agreed to her release four days after surgery, telling her to be up and about as much as possible and to wear elastic bandages. When she came back to see him on March 8, her leg was swollen and painful and she was admitted for thrombophlebitis. His deposition states “she had been staying with her sick moth•er, sitting around a lot, which is not the proper thing to do, and she always wore a heavy corset, which also interferes with the circulation, and at that time I just assumed that the blood which was left from the vein stripping had extended itself into some part of her leg causing her disturbance.”

“Q. In a clot?
A. Yes, sir. Due to lack of circulation and lack of walking, lack of proper exercise and proper care.”

The record also shows she had been to a ■doctor in Amarillo before the operation and lie had recommended the removal of the varicose vein in her right leg.

The following statements in the deposition of Dr. Richardson himself constitute the principal contention relied on by appellant for raising a fact issue:

“I ran the usual test to determine the patency of the deep circulation. Apparently the deep circulation was adequate, so I consented to the operation.
“QUESTION: ‘That was on the 9th of February, 1962?’
“ANSWER: ‘Yes, Sir.’
“QUESTION: ‘Exactly what is this test to determine the patency of the deep circulation ?’
“ANSWER: ‘It’s commonly called the Trendelenburg test.’
“QUESTION: ‘Would you describe it, please, sir?’
“ANSWER: ‘Put a tourniquet around the thigh with the vein empty and see if it fills from below, which it did very slowly.’
“QUESTION: ‘Why do you give this test, anyhow ? This tourniquet test.’
“ANSWER: ‘The tourniquet test is to determine whether the deep circulation is patent.’
“QUESTION: ‘Why do you need to know that?’
“ANSWER: ‘Well, if you destroy the superficial veins and there is no deep vein, you have trouble with it. There is no way for the circulation to get back to the body.’
“QUESTION: ‘I assume, than, that' had you known that the deep circulation was not adequate, you would not have performed your surgery?’
“ANSWER: ‘I would not have recommended that the surgery he performed, no.’
“QUESTION: ‘If the deep circulation is obstructed where it will not return the blood and if you remove the superficial vein, which you removed—
“ANSWER: ‘Yes, Sir.’
“QUESTION: ‘What will result, Doctor ?’
“ANSWER: ‘The leg enlarges, and they get what we call postphlebotic syndrome or postlymphedema.’ ”

The record shows that Dr. Loyde H. Hudson is a thoracic and cardiovascular surgeon of Amarillo, with a total of 18^4 years of college, medical school, internship, and residency training for the field of practice he follows.

His deposition testimony shows that Mrs. Catón came to him for examination on April 24, 1962, from a referral by Dr. Mok of Amarillo. An examination on that day revealed an enlarged right lower extremity that appeared to be very firm and indurated to feel. At that time he thought she had lymphangitis. He placed her in the hospital and later did a venogram, a procedure by which dye is placed in the vein at the foot and traced by X-ray to determine if the circulation passes on up the leg. If there is blockage the dye will not pass up in a normal way. He was not satisfied with the test and advised that she have an exploration of the right groin, which was performed on May 21, 1962. That test revealed evidence of marked disease in the proximal end of the femoral vein and very severe disease in the veins entering into the pelvis on the right side. The disease was thrombophlebitis. He found veins that were open but the ones at the end of the right common femoral vein were hard and stiff and not carrying blood. He expressed the belief that, some of the veins in the pelvic area, being so hard and stiff, she probably had phlebitis over a protracted period due to childbirth.

When questioned in the deposition concerning his medical opinion as to the cause of Mrs. Caton’s physical condition upon which this suit is based Dr. Hudson’s deposition is very positive. He said the removal of the saphenous vein showed classical surgical procedure; that if he possessed the knowledge he acquired from his information of her history, the veno-gram made, and the exploratory operation performed, he would have recommended the surgery that Dr. Richardson performed. He said he had no opinion as to what caused the phlebitis; that the femoral vein at the point that the saphenous vein entered inta it was filled with fluid blood; that in his opinion there was no occlusion at the time of Dr. Richardson’s operation.

His deposition was rather lengthy and went considerably into detail, but particularly important to the questions here involved are the following questions and answers :

“Q.' Doctor, do you have an opinion as to why the plaintiff here, Mrs-Catón, did not get good results from this varicose vein surgery? If you do, just say you do have or just say you do not.
“A. Yes, I do have.
“Q. Would you give us that opinion, please ?
“A. I think that she had a flare up or possible a primary, but in my opinion it was a flare up of a thrombophlebitis in the pelvic veins and in the upper end of the right common femoral vein following the surgery.
“Q. Postoperative?
"A. Postoperative flare up of throm-bophlebitis.
“Q. Rather than the surgery itself?
“A. I do not believe that the surgery, as I saw it, entered into it.
“Q. With a patient in the condition that has been described both in Mr. Reavis’ direct examination and these various questions I have asked you, do you have an opinion as to whether this surgical resection of the varicose veins was poorly advised?
“A. Yes, I believe I do have an opinion.
“Q. Will you give us that opinion, please ?
■“A. From the information I have this lady had varicose- veins that were helped with elastic stockings. Apparently these veins were rather severe.
As I have already testified, I believe that these varicose veins should be resected because they make the matters worse. If a deep vein is blocked off and is known to be blocked off, they will make matters worse. I think that these veins should be resected.
‘Q. This postoperative flare up of phlebitis to which you refer is not necessarily in the control of the operating surgeon, is it doctor?
“A. It is largely outside the control of the operative surgeon providing she didn’t have an acute attack of thrombophlebitis before he started. In this case, I have no reason to believe such existed.”

Unquestionably, the deposition of Dr. Hudson absolves Dr. Richardson of any negligence in connection with diagnosis or surgery, or of any action that proximately caused the condition upon which her suit is based. This leaves only the affidavit and deposition of Dr. Richardson and appellant’s deposition from which we must determine if a fact issue was raised.

Dr. Richardson said he gave the Trendelenburg test and that it showed the patency of the circulation in the deep veins was adequate to justify the operation. Mrs. Catón said he did not do the test because he never applied a tourniquet to her thigh. It places her in an anamolous position so far as proving a cause of action. If Dr. Richardson did do the test, the record shows no negligence on his part from his testimony because he found no medical reason to cause him to foresee that thrombophlebitis would later develop. If Mrs. Caton’s testimony is true, and he did not do the test there still is no showing of negligence which was a proximate cause of the condition she complained about.

In stating, as Dr. Richardson did, that, “If you destroy the superficial veins and there is no deep vein, you have trouble with it,” is not medical testimony that she had no deep functional veins. There is absolutely no medical testimony that appellant was without some deep veins that were functional. (Emphasis added).

Dr. Hudson’s deposition testimony shows:

“Q. Then is it — state whether or not it is your opinion that it is a perfectly good and well-recognized surgical procedure today to resect varicose veins even if it is known that the patient has had infected deep veins to the point that they may be occluded?
“A. Yes, it is a well-recognized procedure and can be safely done.
“Q. Is it necessary to resect these veins ?
“A. Yes.
‘Q. Why would that be necessary, Doctor ?
“A. If they are varicose veins it is necessary to resect them because there is an actual downward force on the varicosities from above.
We have learned through advances in vascular-physiology that if these veins are not re-sected the varicosities will become worse and there will be stasis of blood in the varicosity.
Your chances of getting recurrent phlebitis is therefore made much worse.
We advise resecting these veins not only for the varicosities themselves but actually it helps cut • down the incidence of recurring phlebitis.
“Q. So are you testifying then that you would consider surgical resection of varicose veins even if you knew them to be of a secondary type or if they had occurred following an episode of deep phlebitis?
“A. . Yes. If the varicose veins are severe, resection of them is a perfectly good and recognized surgical procedure, even if the patient is known to have had phlebitis previously.”

The deposition of Dr. Richardson shows Mrs. Catón had an enlarged, tortuous, crooked saphenous vein in her right leg and that she came to him and asked him to operate on the leg, that her husband had sent her up for the operation.

Therefore, there is no medical evidence that would justify the submission to a jury of a question of negligence which was a proximate cause of the thrombophlebitis upon which the medical malpractice suit is based.

The judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    W. A. MAYS, Appellant, v. Scotty C. WITT et al., Appellees.
    No. 7436.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 15, 1965.

      Clayton, Kolander, Moser & Templeton, Amarillo, for appellant.
    Arthur J. Lamb, Amarillo, for appellees.
   DENTON, Chief Justice.

Appellant, W. A. Mays, brought suit against Scotty C. Witt and G. S. Witt for damages resulting from an alleged breach of contract to relay floor title. Appellees filed a cross-action seeking recovery of attorney’s fees and costs of labor and materials used in the performance of the contract. A favorable jury verdict resulted in a judgment for appellees on their cross-action and a denial of recovery by appellant.

The contract which forms the basis of this suit is in the form of a written memorandum. The Witt brothers, in the business of laying floor tile, had originally laid the tile in appellant’s cafeteria some time prior to the date of the present contract. Appellant’s dissatisfaction with the floor resulted in his filing of a suit against appel-lees for damages. Pending the trial of the case, the parties entered into the written contract. The material part of the contract provided that the Witts were to take up the tile flooring, and “clean the floor and the bottom of the title which has adhesive on it- — -and relay the tile with adhesive described as Bolta Floor Epoxey Adhesive.” Mays agreed to the pay the cost of court in addition to the sum of $186.00 for deposition costs. The pending case was to be continued until the tile was relaid and said suit “will be dismissed and final order entered therein when all tile has been relaid.” Mays was to be responsible for clearing the floor of furniture and fixtures so as not to interfere with Witts’ work. The jury found the Witts did not fail nor refuse to clean the bottom of the tile or the floor; that Mays prevented the Witts from completing the cleaning of the floor and tile; that Mays failed to clear the floor of furniture but that such failure was not a substantial one; and awarded the Witts $986.18 as damages on their cross-action.

Appellant has briefed thirty-three points of error. However, the first twenty-four points contend there is no evidence and insufficient evidence to support the jury’s findings that the Witts did not fail or refuse to clean the adhesive from the tile and the floor. It seems the controversy involves the different interpretation placed upon the word “clean” by the respective parties. The contract provided for the Witts to “clean the floor and the bottom side of the tile which has adhesive on it.” When Witt’s employees had removed and relaid approximately 50% of the tile flooring, Mays stopped the operation and refused to allow them to continue for the reason he maintained the tile was not being cleaned properly and that not all of the adhesive was being removed. Scotty Witt testified:

“We took scrapers that resemble a broad knife, or a scraper knife, and as the tile was removed I employed two and three men, and they sat in chairs and the tile was stacked beside them, and they took the scrapers and scraped the back of the tile to clean off any excessive adhesive, and also scrape the edge of each tile prior to relaying it.
“Then the concrete slab was also scraped with this same type of scrapers to remove the adhesive that was on the floor. In addition to that, as an area was removed, we took a sixteen inch sanding machine, floor sander or buffer, and sand paper was used on this sanding machine, as well as dry washed sand. The sand was used to facilitate cleaning the adhesive off the concrete. That was part of our agreement, to clean the concrete slab.”

S. F. Curtis, owner of a floor cover business, testified the adhesive “hasn’t been cleaned off. However, I would consider this about as well as you can expect to do.” In response to a question on cross-examination if a solvent could do a better job Mr. Curtis testified, “Well, not likely. I do not believe you will ever get more than that amount of adhesive off.” He further testified the cleaning of adhesive off of used tile was “not a very practical thing to do.” and “We never had very good results.” On reviewing the evidence most favorable to the verdict, we conclude there is evidence to support the jury finding appellees did not fail or refuse to clean the tile and floor. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

There was evidence presented that the Witts did not clean the tile and that it should have been cleaned by a solvent solution. Undoubtedly the methods used and results of the cleaning process used by Witt was not satisfactory to Mr. Mays. However, all the evidence must be reviewed and considered in light of the terms of the contract. To take the position the verb “clean” was intended to mean “to render the tile absolutely clear of all adhesive” would be unreasonable. In our opinion the word “clean” as used here is a relative term, and the jury, in the absence of a definition given by the court, was authorized to apply the usual and ordinary meaning of the word. In reviewing all the evidence we can not say the jury verdict was against the great weight and preponderance of the evidence.

Appellant attacks the awarding of damages to appellees on their cross-action on the ground such damages were not recoverable as a matter of law. The jury awarded the Witts $460.18 for labor and materials expended in relaying the floor up to the time they were stopped by appellant, and $500.00 as attorney’s fees incurred in defending the suit initiated by appellant. In consideration for the Witts.to relay the tile flooring Mays agreed to pay the court costs and $186.00 for Witt’s deposition previously taken and to dismiss the pending suit when the tile was relaid. It is admitted the $186.00 was paid by Mays, but the suit was not dismissed. After the work was stopped, appellees employed counsel to defend this suit and prosecute their cross-action. In our opinion neither the costs of labor and material or attorney’s fees are recoverable as damages by appellees. It is fundamental that the recovery of damages is to indemnify the injured party for the pecuniary loss suffered by him, placing him as nearly as possible in the same position he would have occupied but for the injury or breach of contract in question. Reaugh v. McCollum Exploration Co., 139 Tex. 485, 163 S.W.2d 620. Under the terms of the contract the Witts were to receive no compensation for relaying the tile flooring. To allow them the recovery of the costs of labor and material for partially performing the contract even though they were prevented from completing the job by Mays would be contrary to the specific terms of the contract sued upon.

It is settled that unless provided for by statute or by contract between the parties, ’attorney’s fees incurred by a party to litigation are not recoverable against his adversary either in an action in tort or in a suit upon a contract. William Cameron & Co. v. American Surety Co. of New York (Tex.Com.App.), 55 S.W.2d 1032; Davis v. Peters (Tex.Civ.App.), 224 S.W.2d 490. Appellees make no claim the attorney’s fees are recoverable under Article 2226, Vernon’s Ann.Civ.St. In the absence of a contractual right to attorney’s fees, we therefore conclude such expenses of litigation are not recoverable.

All points of error not specifically passed upon have been considered, and we are of the opinion they present no reversible error. For the reasons stated the portion of the judgment of the trial court granting appel-lees $986.18 damages is reversed and rendered that appellees take nothing by way of damages. That portion of the judgment denying appellant the relief sought is affirmed.

The judgment of the trial court is affirmed in part and reversed and rendered in part.


author: MASSEY, Chief Justice.

text:
    W. R. MILLER, Appellant, v. BANK OF COMMERCE, Appellee.
    No. 16605.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 12, 1965.
    Rehearing Denied March 12, 1965.
    Kerr, Day & Cook, and Paul C. Cook, Fort Worth, for appellant.
    McGown, Godfrey, Logan & Decker, and John B. McClane, Fort Worth, for ap-pellee.
   MASSEY, Chief Justice.

Counsel for appellant W. R. Miller and appellee Bank of Commerce apparently agree that an action for damages because of fraud lies in those instances when the complainant has been thereby induced to part with any property of value. 25 Tex.Jur.2d 625, “Fraud and Deceit”, § 13, “(Elements of Fraud) — In general”.

Why, says appellant’s counsel, should not a similar action lie in an instance where one has been induced to delay or defer action to collect his debt through another’s fraud, when forbearance on his part results in the loss of a claim which in all reasonable probability he would have collected except for such fraud. Under the jury findings in the instant case such is what occurred to occasion the appellant’s loss of a valid debt upon his debtor’s voluntary bankruptcy.

Although decisions in the premises are not unanimous the weight of authority in the United States is that such an action may not be maintained, 37 C.J.S. Fraud § 41, p. 293, “What Constitutes Damage or Injury —d. Inducing Forbearance or Inaction”; 23 Am.Jur. 996, “Fraud and Deceit”, § 176, ^‘Proximity and Certainty”; 47 L.R.A. 433 (supplemented at 1917E L.R.A. 1148), annotation: “Action by general creditor for damages against third party on account of fraud in disposing of debtor’s property, of preventing plaintiff from collecting his claim.” A very informative and authoritative case, holding in accord, is Evans v. Burson, 164 P. 471 (Oklahoma, 1917).

Among grounds for so holding have been these: that the damage for which such an action is necessarily brought is remote, contingent, and not necessarily a proximate result of the acts of which complaint is made; actual damage could be no more than a matter of conjecture; that the creditor’s right was not assured, he having simply a chance of securing his claim; and that the creditor cannot show that he suffered any damage not common to all creditors.

Appellant has cited numerous cases, holdings in which he believes have application to the situation posed by his appeal and language from which he deems persuasive to the end that our proper holding should be that his cause of action should be upheld. We have examined them. Our conclusion is that, at most, the circumstances of the cases create conditions under which a different rule of law would be applicable. Each of the cases is distinguishable from those under which has been established the majority rule that recovery cannot be had for fraudulent representations inducing a creditor merely to refrain from taking steps to collect a debt until collection has become impossible. Such rule we deem to have full application to the circumstances of the instant case. Effect of the rule is to annul the right appellant claims.

What is stated hereinabove necessitates overruling all the appellant’s points of error save his fourth and fifth points, and perhaps a portion of his sixth. Therein he complains because the trial court failed and refused to submit special issues inquiring as to balances remaining unpaid and owed to the appellee bank on the notes of appellant’s debtor. Appellant had become surety on one of the notes and was a guarantor of the other. Further complaint was because the court had withdrawn the case from the jury and rendered judgment on the phase of the suit dealing with the amount appellee was owed on the notes. The phase of the suit which was submitted was the counterclaim of appellant, subject of our initial discussion.

Although the evidence in the record on the matter seems to have been uncontradicted upon the matter of balances owing, yet the points of error in the premises are to be overruled for want of affirmative pleading by the appellant relative to the matter of payment. Texas Rules of Civil Procedure 94, “Affirmative Defenses”, and 95, “Pleas of Payment”.

Judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    BURNETT TRAILERS, INC., et al., Appellants, v. S. C. POLSON, Appellee.
    No. 14346.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 10, 1965.
    Rehearing Denied March 11, 1965.

      J. G. Hornberger, Laredo, for appellants.
    R. J. Goodman, Laredo, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by appellee, S. C. Poison, in the District Court of Zapata County, Texas, against Burnett Trailers, Inc., Clyde E. Thomas and M. E. Burnett, appellants, seeking actual and punitive damages for wrongful sequestration of a Midway Mobile Home. The cause, by agreement, was transferred for trial to the District Court of Webb County. It was heard before the court without the intervention of a jury, and resulted in judgment for appellee against all of the appellants in the sum of $2,220.00, together with interest, as actual damages, and in favor of appellee against appellant Burnett Trailers, Inc., alone, in the sum of $555.00, together with interest, as exemplary damages, from which judgment appellants have prosecuted this appeal.

Appellants’ first contention is that the court erred in rendering judgment against them because there is no evidence of wrongful sequestration, and in any event the evidence is insufficient to support such finding, or such finding is so against the great weight and preponderance of the evidence as to be clearly wrong. The judgment was based upon a finding of wrongful sequestration.

On March 9, 1959, appellant Burnett Trailers, Inc., sold to appellee, S. C. Poison, and his wife, Mrs. S. C. Poison, the mobile home here involved for a total consideration of $6,650.00, to which amount was added an insurance premium of $394.30, making a total sum of $7,044.30. Poison was allowed $2,644.30 for a trailer which he traded in, and he gave to seller a note in the principal sum of $2,000.00, secured by a chattel mortgage, representing the down payment. To the balance of $2,400.00 was added $576.00 finance charges, and this deferred balance of $2,976.00 was evidenced by a note in that amount, payable to the First National Bank in Fort Worth in forty-eight monthly installments of $62.00 each beginning on April 19, 1959. The chattel mortgage securing the $2,000.00 note was subject to the chattel mortgage securing the $2,976.00 note, and was endorsed by seller.

There was the usual provision in the chattel mortgage giving the mortgagee the right, under a number of circumstances, to seize the mobile home and sell it at public or private sale, etc., the details of which provision need not here be stated. The mobile home was wrecked on March 10, 1960, and, through no fault of seller’s, there was no collision insurance on it,, other than a policy having a single interest endorsement.

After this wreck and after appellee was allegedly delinquent in his payments, appellant Burnett Trailers, Inc., filed suit in the 118th District Court of Howard County, Texas, against appellee and sequestered the-mobile home. Burnett Trailers, Inc., secured possession of the mobile home by giving a replevy bond, with appellants M. E. Burnett and Clyde E. Thomas as sureties on this bond. After they had secured possession of the mobile home by means of suing out the writ of sequestration and giving the replevy bond, appellants dismissed their suit in the District Court of Howard County without returning the mobile home to appellee.

Thereafter appellee instituted this suit in the District Court of Zapata County, the-place where the mobile home had been seized, seeking damages, both actual and exemplary, for wrongful sequestration. There is no real dispute as to the material facts and the question presented is, do-these facts show a wrongful sequestration ? We conclude that they do.

When appellant Burnett Trailers,. Inc., voluntarily dismissed its suit in Howard County such judgment was a final' judgment in favor of appellee, and he was-entitled to a return of the mobile home or a judgment against all of the obligors on. the replevy bond.

The question is not one of whether appellant Burnett Trailers, Inc., might have gone out and seized the mobile home and sold it at private sale, under the powers-given it in the chattel mortgage, but is one where appellant elected to go into, court to secure a writ of sequestration and have an officer seize the mobile home by-authority of such writ, take possession of it by giving a replevy bond, as is authorized by law, and then dismiss the entire suit without returning the mobile home to its owner, and thus try to defeat the owner’s right to have his day in court. The answer is “no.” To approve such procedure would be to permit an abuse of process. Appellee had a right to institute this independent action to recover the damages he may have suffered by reason of such wrongful sequestration. Bishop v. General Motors Acceptance Corp., Tex.Civ.App., 229 S.W.2d 848; Wakefield v. Queisser, Tex.Civ.App., 293 S.W. 896; Bruyere Const. Co. v. Bewley, Tex.Civ.App., 229 S.W. 610.

Appellants cite the case of Willis v. Mays, Tex.Civ.App., 177 S.W.2d 1000. We do not regard that case as being in point here, as the facts are entirely different. There was no dismissal of the original suit.

Appellants next contend that the court erred in awarding exemplary damages in the sum of $555.00 in favor of appellee against Burnett Trailers, Inc., because there was no evidence to sustain a finding that in bringing the suit and causing the writ of sequestration to issue it was activated by malice, or that it caused the writ of sequestration to issue without probable cause. We sustain this point. The evidence shows that the mobile home had been greatly damaged in a wreck several months before appellant filed its suit, and had not been repaired. The chattel mortgage had a proviso that mortgagee could take possession “if said mortgagee shall at any time deem said mortgagor, said chattels, said debt or said security unsafe or insecure, * * Under such circumstances the record does not show that appellant was activated by malice in bringing the original suit. The sum of $555.00 will be deducted from the total amount of the judgment. O’Hara v. Ferguson Mack Truck Co., Tex.Civ.App., 373 S.W.2d 507.

Appellants next contend that the trial court erred in discharging the appellee from any and all indebtedness owed to Burnett Trailers, Inc., and M. E. Burnett, arising out of or connected with the purchase of the mobile home in question. We do not agree. The record shows that the court, in rendering judgment in favor of appellee, arrived at the amount of the judgment in the following manner:

“The Court finds for the plaintiff in the amount of $2,200.00 actual damages and $555.00 exemplary damages.
Purchase price -$6650.00
Less depreciation of time of seizure- 1000.00
$5650.00
Interest to time of trial- 1320.00
$6970.00
Amount of debt 3900.00
$3070.00
Repairs to trailer 2250.00
Paid by Ins. Co. 1400.00
Paid by Mr. Burnett 850.00
’$2220.00’
of $2220.00 as attorney’s fees, and grant that as exemplary damages, $550.00.”

This statement shows quite clearly that the court gave appellants credit for all indebtedness owed on the mobile home, amounting to the sum of $3,900.00. Appellants having received credit for this amount should not be permitted to collect it again, and therefore the court very properly declared such indebtedness discharged. Appellants contend that there were no pleadings to sustain this part of the judgment. The record does show that during the trial appellants, on at least four occasions, requested that the amount of the indebtedness be deducted from the value of the mobile home. The court having granted appellants’ request they are not now in a position to complain that the court went further than the pleadings and declared, in effect, that appellants could not later again recover for such indebtedness. Rule 67, Texas Rules of Civil Procedure; Bednarz v. State, 142 Tex. 138, 176 S.W.2d S62; Taylor v. Jones, Tex.Civ.App., 244 S.W.2d 371; Endel v. Norris, 15 Tex.Civ.App. 140, 39 S.W. 608.

Appellants next complain that the trial court, upon proper request, did not make a number of findings of fact. The record shows that such requested findings were not ultimate and controlling issues, or were in conflict with findings clearly made by the court or not supported by the evidence, and that appellants were not prejudiced by the court’s failure to make such requested findings. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117; Wentz v. Hancock, Tex.Civ.App., 236 S.W.2d 175; Tijerina v. Botello, Tex.Civ.App., 207 S.W. 2d 136; Jinks v. Jinks, Tex.Civ.App., 205 S.W.2d 816.

The recovery of exemplary damages in the sum of $555.00, together with interest thereon, will be stricken from the judgment and that sum deducted from the judgment. As thus reformed the judgment is affirmed. The costs of this appeal are taxed one-half against appellants and one-half against appellee.

Reformed and affirmed.


text:
    Frank J. COULSON et al., Appellants, v. John DAVID, County Attorney, Appellee.
    No. 7476.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 25, 1965.
    Rehearing Denied March 1, 1965.
    Frank D. McCown, Dumas, for appellants.
    John L. David, County Atty., Dalhart, for appellee.
   DENTON, Chief Justice.

This is a contest of a school bond election held by the Texline Independent School District in Dallam County, Texas. Appellants, resident taxpayers of the school district brought this suit contesting the validity of the election held May 23, 1964, on the proposition of whether or not bonds should issue in the amount of $500,000.00 for school building purposes. The election resulted in 206 votes favoring the proposition and 127 were against. The trial court, without a jury, entered judgment sustaining the election.

The facts are largely undisputed. The petition to call the election was presented to the school district Board of Trustees on April 27, 1964. The petition contained signatures of 98 people representing themselves to be taxpaying voters of the school district. Upon the presentment of the petition, the trustees thereupon called the election for May 23, 1964, which resulted in the votes stated above. Of the 98 petitioners 86 had either rendered their property or their property had been rendered for them for the year 1963. These 86 petitioners were on the tax rolls for the year 1963 and were otherwise qualified voters. It is further undisputed that only 19 people, who were otherwise qualified to vote, had rendered their property during the year 1964 up to April 27. Of the 19 who rendered their property in 1964, 7 signed the petition requesting the bond election. The school district tax assessor had not rendered anyone’s property for the year 1964 prior to the date of the petition. Thus only 19 school ■district residents had property rendered for 1964 up to the date the election was called.

The primary question presented is the validity of the petition requesting the election. If the petition is held to be valid, the contestants concede the election should be sustained. The record shows that of the 19 who rendered property in 1964, 12 voted in favor of the issuance of the bonds, 6 voted against, and 1 ballot was mutilated. Article 2785, Vernon’s Ann.Civ.St., provides in part:

“Before an election is held to determine the proposition of the levy of such tax or the issuance of such bonds, a petition therefor, signed by twenty (20) or more, or a majority of those entitled to vote at such' election, shall be presented to the County Judge of the county if for a common school district, and to the district trustees if for an independent school district.”

The contestants take the position the petition was void in that there were only 19 persons “entitled to vote at such election” at the time the petition was presented, and since only 7 of those 19 signed the petition, the provisions of Article 2785 were not complied with. They argue that since only 19 property owners had rendered their property for 1964 up to April 27, they were the only ones “entitled to vote at such election” which was called for and held on May 23, 1964. That is to say, the only persons qualified to sign the petition were the 19 who had rendered their property for taxes in 1964.

The law permits property owners to render their property for taxes between January 1 and April 30 of each year. Article 7151, V.A.C.S. Article 5.03 of the Election Codes, V.A.T.S., provides in part:

“When an election is held by any county, or any number of counties, or any political subdivision of the State, or any political subdivision of a county or any defined district now or hereafter to be described and defined within the State, * * * for the purpose of issuing bonds or otherwise lending credit, or expending money or assuming any debt, only qualified electors who own taxable property in the State, county, political subdivision, district, city, town or village where such election is held, and who have duly rendered the same for taxation, shall be qualified to vote * * *. Property shall be deemed to have been duly rendered for taxation, for the purpose of determining eligibility to vote in an election as provided in this Code and in Article VI, Section 3a of the Constitution of this State, only if the property was rendered to the county, city, district, or other political subdivision holding the election within the period of time fixed by law for such rendition, or was placed on the tax rolls by the tax assessor prior to the date on which the election was ordered, if the regular rendition period expired before that date.”

At the time the election was called there remained three days in which property owners could render their own property. It is uncontradicted that the 86 signers of the petition had rendered -their property in 1963 and were otherwise qualified to vote. The question then is whether or not these 86 petitioners were qualified voters at the time the petition was presented on April 27. To be qualified voters they must have “duly rendered the same [taxable property] for taxation.” Article 5.03. This article provides :

“Property shall be deemed to have been duly rendered for taxation, for the purpose of determining eligibility to vote in an election * * * only if the property was rendered to the * * * district, or other political subdivision holding the election within the period of time fixed by law * * * or was placed on the tax rolls by the tax assessor prior to the date on which the election was ordered, if the regular rendition period expired before that date " (Emphasis added)

At the time this election was ordered on April 27 the regular rendition period had not expired; therefore the provisions of the article relating to rendition by the tax assessor would have no application under the facts of this case. In Caperton v. Thorpe, (Tex.Civ.App.), 240 S.W.2d 329, contestants in a school bond election contended only- those people who had rendered their property for taxes in 1950 were qualified to vote in the election held April 1,1950. The court overruled this contention and held that those who had rendered their property either in 1949 or 1950 were qualified voters in that election. The Court held:

“This is the only reasonable construction of the law. The law permits owners of property to render their taxes through' April 30th of any given year under Art. 7151, Revised Civil Statutes 1925, Vernon’s Ann.Civ.St., art. 7151. It will, therefore be seen that if the election had been called on January 2, 1950, there would have been many people who regularly rendered their property within the time prescribed by statute and who were otherwise quali- ' fied to vote in the election but who had not rendered their property for taxes in 1950 and would not have been allowed to vote in the election.”

We think this holding is applicable to the facts of this case. The 86 petitioners-were qualified voters at the time the petition was presented on April 27. To hold otherwise would place an unreasonable burden on the Board of Trustees or other governmental bodies to determine the probability of voter eligibility when an election petition is presented within this four-month period and the election is held after April-30. Being of the opinion the 86 petitioners-were qualified to sign the petition at the time it was presented, we conclude the petition was valid under the existing election-laws.

Contestants further contend the Board of Trustees acted unreasonably in determining the sufficiency of the petition. In view of our holding the petition was valid, these points of error are not material. They do not present reversible error.

The judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    Ross BOHANNON, Appellant, v. The FRANKLIN NATIONAL BANK OF LONG ISLAND, Appellee.
    No. 16463.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 19, 1965.
    Elgar L. Robertson, Dallas, for appellant.
    Wynne, Jaffe & Tinsley and Yandell Rogers, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

Appellant Ross Bohannon has appealed from a summary judgment rendered against him in a suit filed by The Franklin National Bank of Long Island on a promissory note signed by Bohannon in the principal amount of $7,500 dated September 4, 1962, due November 5, 1962. The judgment was for $9,795, which included principal, accrued interest and attorney’s fees.

In a sworn amended answer Bohannon alleged that there was no consideration for his execution of the note, that he signed the note merely as an accommodation maker for the benefit of the Bank, and that he was induced to sign the instrument by fraudulent representations by a Bank official.

We quote part of appellant’s amended answer in connection with his allegations of fraud:

“YOUR DEFENDANT would show that he was not personally acquainted with the officers or agent of said bank making such representations to him but he was represented to be and YOUR DEFENDANT is informed and believes and here, now alleges the facts to be that the person representing such bank and making such representations was one, Richard E. Ast, purported to be the Manager of said Plaintiff bank.” (Emphasis ours)

A detailed statement of appellant’s claim of fraud will be presented later in this opinion.

Bohannon’s amended answer was filed subsequent to the filing of the Bank’s motion for summary judgment and subsequent to the execution by Richard E. Ast and George F. Doherty, Bank officials, of affidavits in support of the Bank’s motion.

The pleadings and affidavits of the parties agree that the note sued on was one of a series of renewal notes, the original note having been in the principal amount of $10,000, dated November 1, 1961 and due December 1, 1961.

Seven exhibits, reproductions of the Bank’s records, are attached to the affidavits of the two Bank officials. The substance of the affidavits and exhibits may be summarized as follows:

Prior to November 1, 1961 the Bank had made a number of loans to a corporation known as Sovereign Resources, Inc., in which appellant Bohannon and C. M. Wood were substantial stockholders; in November 1961 the corporation was not indebted to the Bank but needed money; the Bank was unwilling to lend the corporation the money; it was then arranged for several stockholders to sign notes individually,., the proceeds to be advanced to the corporation; no collateral was posted at any time to secure any of the notes; a payment of $5,000 on Bohannon’s note was received on December 8, 1961; on March 2, 1962’ Bohannon from Dallas forwarded by mail to the Bank his signed note for $7,500 with instructions to “credit the additional proceeds to Sovereign Resources, Inc.”; on January 7, 1963 Bohannon forwarded another signed renewal note for $7,500 together with a promise to make a reduction of' the principal amount on the next due date,. February 15, 1963; the Bank refused to accept this proffered renewal note and demanded payment of the note executed by Bohannon on September 4, 1962, on which note this suit is based.

In answer to appellee’s motion for summary judgment appellant Bohannon presented his affidavit in which he alleges that he did not sign a letter dated October 27, 1961 at Dallas, Texas which accompanied his original $10,000 note dated November 1, 1961 and in which letter the Bank was told to apply the proceeds of the note “in accordance with instructions from Mr. C. M. Wood of Sovereign Resources”; that his signature on said letter is a forgery (he does not deny signing the note itself); that he did not make the payment of $5,000 on December 8, 1961 and if such payment was made it was apparently made by Sovereign Resources, Inc., or C. M. Wood or Howard K. Low.

In his affidavit Bohannon makes these-allegations in support of his charges of fraud on the part of the Bank:

“That heretofore, to-wit, during the month of October 1961, * * * I was in New York City at the office of Sovereign Resources, * * * and there were present at such time C. M. Wood and Howard K. Low and Solon Snowden.
“Mr. Low and Mr. Wood stated to Mr. Snowden and me at such time that the Franklin National Bank of Long Island had loaned excessive amounts of money to Sovereign Resources and to C. M. Wood and Howard K. Low and that the bank had requested that such loans be broken up into smaller loans among numerous people as the bank examiners were raising a question as to the amounts loaned to Sovereign Resources, Wood and Low. At such time Howard K. Low, in my presence, called the Franklin National Bank and talked to some gentleman over there who he informed me was Mr. Richard E. Ast and while speaking with this gentleman on the telephone, handed me the receiver and asked that I talk with him. The gentleman on the telephone, who I was informed was Mr. Ast, stated to me at such time that the bank had over-extended itself in loans to Sovereign Resources, Inc., C. M. Wood, and Howard K. Low and that, while such loans were well secured with Sovereign stock and other collateral, the bank examiners were raising serious questions about such loans and that he and others were likely to lose their jobs because of same. He further stated to me over the telephone that if I, together with Mr. Snowden and other people whom I represent, would sign notes to replace a portion of the notes of Sovereign Resources, Mr. Wood and Mr. Low, it would be a great favor to him and to the bank and we would accommodate the bank in this respect. He stated that the bank would keep the collateral that was presently pledged to secure notes which would be replaced by notes that he asked me and my people to sign, and as it was more than, sufficient to cover the amount of the notes we would sign, that we would never have to personally pay the same and that the bank would look to the collateral only.” (Emphasis ours)

Neither Mr. Low nor Mr. Wood are shown to have any connection whatever with the Bank.

OPINION

Appellant’s six points on appeal assert that the record raises fact issues with reference to the matters pled defensively in his answer and controverting affidavit.

It is plain from the above quoted allegations that Bohannon’s claim that he was only an accommodation maker for the Bank and his claim of false representations by the Bank’s officials are based on pure hearsay. As such the allegations cannot be given any weight in a summary judgment proceeding. Keahey v. Dallas Teachers Credit Union, Tex.Civ.App., 374 S.W.2d 450. Hearsay evidence is no evidence at all. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631.

Appellant’s claim that his signature was forged to the letter dated October 27, 1961 mailed with the note for $10,000 dated November 1, 1961 and his claim of a lack of consideration become immaterial in the light of subsequent events. The Bank is not suing on the $10,000 note of November 1, 1961 and does not need to rely on the letter of October 27, 1961. The Bank is suing on the renewal note of September 4, 1962 in the amount of $7,500 and the letter of March 22, 1962.

When the amount due was increased from $5,000 to $7,500 Bohannon by letter dated March 22, 1962 forwarded the new note to the Bank. In this letter he stated r “Enclosed is my note for $7,500. Would you please credit the additional proceeds to the account of Sovereign Resources, Inc.” (Emphasis ours) Bohannon does not deny the genuineness of his signature to this note or this letter.

Neither does Bohannon deny his signature to his letter of January 17, 1963 proffering another renewal note in the amount of $7,500. In this letter Bohannon said,. “Enclosed in accordance with your request is my note coming due February 15th. At that time I plan to make a reduction in the principle amount." (Emphasis ours) This is the note which the Bank declined to accept, electing to stand on the note for $7,500 of September 4, 1962.

The two letters above quoted confirm Bohannon’s indebtedness of $7,500 as claimed by the Bank and as represented by the note sued on. Bohannon does not allege accident or mistake in the execution of .the note. His claims of fraud and lack of consideration, being based on hearsay, cannot stand. There is no ambiguity in the note. It is a plain promise to pay. Appellant’s points on appeal are overruled. The court properly rendered summary judgment for appellee

The judgment is affirmed.

Affirmed.


author: WERLEIN, Justice.

text:
    Vern V. McGREW, Independent Executor, Appellant, v. Jay BARTLETT, a Minor, Appellee.
    No. 14507.
    Court of Civil Appeals of Texas. Houston.
    Feb. 18, 1965.
    Rehearing Denied March 11, 1965.
    Vern V. McGrew, Jr., Houston, for appellant.
    Spinn, Ehlert & Spinn; Richard Spinn, Brenham, for appellee.
   WERLEIN, Justice.

This is an appeal from the judgment of the District Court denying the probate of the alleged last will and testament of Alta Gray Bartlett who died January 21, 1963, in Washington County, Texas. The sole question before us is whether the deceased properly executed a will in conformity with Section 59 of the Probate Code of the State of Texas, V.A.T.S.

According to the agreed statement of facts, the writing offered for probate consists of five consecutively numbered typewritten pages bound front and back with bond paper and securely fastened in the left-hand margin with tied ribbon. The first pages provide for the disposition, of property and the appointment of an executor and trustee. Commencing in the middle of the fourth page is the testimonial clause followed by a blank for the signature of the testatrix, which is followed by an attestation clause with blanks for the signatures of two witnesses. The last blank for witness signature is located approximately two inches from the bottom of page 4. Page 5 contains only a self-proving affidavit in conformity with Section 59 of the Probate Code. The said Alta Gray Bartlett, Deceased, had in her possession, on the 27th day of October, 1962, said writing or instrument which was entitled “Last Will and Testament of Alta Gray Bartlett,” and on such date she and Horace McDaniel and Mrs. Kate McDaniel signed and executed the self-proving affidavit attached to the unexecuted will before M. C. Bennett, Notary Public in and for Washington County, Texas.

In the District Court the proponent introduced the Question-and-Answer testimony of Mrs. Kate McDaniel filed in the County Court of Washington County, Texas. Mrs. McDaniel testified in substance that on Ocober 27, 1962 she was present in the home of Mrs. Alta Gray Bartlett, and that Mrs. Bartlett asked her to witness her will which was lying on the table; that someone had brought it in and she said “There’s my will. Would you like to read it while you wait ?”; that she read the will completely through. She further testified:

“Q. After you read the will, did Mrs. Bartlett sign at that time?
“A. To the best of my knowledge, it seemed like I signed first and she signed it last.
“Q. This is a very important point. Now, at the time of the signing of the will, who was present?
“A. My husband was, and this notary public. I do not recall his name, but he showed Mrs. Bartlett where to sign, but I believe I signed last
“Q. Is this your signature?
“A. This is mine.
“Q. Now, Mrs. Bartlett did declare that this instrument was her last will?
“A. Yes, she did and asked me to sign and asked my husband to sign it.
“Q. And you signed it in the presence of Mrs. Bartlett?
“A. Mrs. Bartlett, my husband and this notary public.”

The County Judge asked questions and elicited answers as follows:

“Q. I imagine nobody present there knew that they had to sign over here?
“A. No, it was not discussed. I cannot understand why this man there, the notary public did not tell us. He showed Mrs. Bartlett where to sign and he showed me where to sign and showed my husband where to sign.
“Q. Are you familiar with her signature ?
“A. Yes.
“Q. You would say then that the instrument introduced is signed with her signature?
“A. That is her signature. I handed it to her and we laid it on the table and signed it.”

It is clear that the will, consisting of the first four pages, was not executed in conformity with Section 59 of the Probate Code of Texas. It is not signed by the testatrix at any place. Nor is it signed by any witness. The blanks for dates and signatures were never filled in.

Section 59 of the Probate Code provides:

“Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two (2) or more credible witnesses above the age of fourteen (14) years who shall subscribe their names thereto in their own handwriting in the presence of the testator. Such a will or testament may, at the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, be made self-proved, and the testimony of the witnesses in the probate thereof may be made unnecessary, by the affidavits of the testator and the attesting witnesses, made before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths under the laws of this state * *

The self-proving affidavit on page 5 of the instrument reads as follows:

THE STATE OF TEXAS ] COUNTY OF WASHINGTON j
BEFORE ME, the undersigned authority, on this day personally appeared ALTA GRAY BARTLETT, Horace McDaniel and Kate McDaniel, known to me to be the Testatrix and the Witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said ALTA GRAY BARTLETT, Testatrix, declared to me and to the said Witnesses in my presence that said instrument is her LAST WILL AND TESTAMENT, tAnd that she had willingly made and executed it as her free act and deed for the purposes therein expressed; and the said Witnesses, each on his oath stated to me, in the presence and hearing of the said Testatrix, that the said Testatrix had declared to them that said instrument is her LAST WILL AND TESTAMENT, and that she executed same as such and wanted each of them to sign it as a witness; and upon their oaths each Witness stated further that they did sign the same as witnesses in the presence of the said Testatrix and at her request; that she was at that time nineteen years of age or over and was of sound mind; and that each of said Witnesses was then at least fourteen years of age.
(signed) Alta Gray Bartlett
ALTA GRAY BARTLETT, Testatrix
(signed) Horace McDaniel
Witness
(signed) Mrs. Kate McDaniel
Witness
SUBSCRIBED AND ACKNOWLEDGED before me by the said ALTA GRAY BARTLETT, Testatrix, and subscribed and sworn to before me by the said ALTA GRAY BARTLETT and Horace & Kate McDaniel, Witnesses, this 27th day of October, 1962.
(signed) M. C. Bennett
Notary Public in and for (seal) Washington County, Texas.

Appellant contends that since it is clear from the testimony of Mrs. McDaniel that the testatrix executed the self-proving affidavit intending to execute her last will and testament, and further since the will and the affidavit physically attached thereto are merged into one instrument, and it is immaterial in Texas at what place on the instrument the deceased signed, there was a sufficient compliance with Section 59 of the Probate Code. See Lawson v. Dawson, 21 Tex.Civ.App. 361, 53 S.W. 64, error ref. In the alternative, appellant asserts that in the event the will and affidavit are considered as two separate and distinct instruments, then the effect of the execution of the affidavit was to publish and validate the unexecuted will. Appellant cites a number of cases supporting his contention that a later codicil may constitute a republication of a defective will. Such cases are factually distinguishable from the instant case.

We do not agree with appellant’s contention. The self-proving affidavit is neither merged in the will nor does it amount to a republication of the unexecut-ed will. As stated by the court in In Re Price’s Estate, Tex.Sup.1964, 375 S.W.2d 900: “Of course the self proving provisions have only the effect of authorizing the substitution of affidavits in lieu of testimony offered before the court.”

This statement, in our opinion, correctly announces the” function of the self-proving affidavit. Section 59 of the Probate Code after stating the requisites of a- written will, then states: “Such a will or testament may, at the time of its execution, or at any subsequent date during the lifetime of the testator and the witnesses, be made self-proved * * * ” This clearly indicates that the affidavit is executed merely for the purpose of making the will self-proving. It refers to the last will or testament as “Such a will or testament” and does not undertake to incorporate the affidavit as a part of the will or testament. The language clearly imports that the will must be duly signed by the testator, and subscribed by the two attesting witnesses before the self-proving affidavit can be executed. The execution of the will is a condition precedent to the execution of the self-proving affidavit under Section 59. Moreover, Section 59 provides: “A self-proved will may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved.” (Emphasis supplied) This language can mean only what it says, namely, that the affidavit adds nothing to the will, since the self-proved will shall be treated no differently than a will not self-proved.

In the instant case the will itself was not signed by either the testatrix or the witnesses. The affidavit attached to the will, as the record shows, does not state the truth in stating that the testatrix’ and witnesses’ names are subscribed to the foregoing instrument in their respective capacities. - The testatrix and witnesses may have thought they were signing a will, but in truth and fact they did not do so. The 'affidavit merely refers to an unsigned and unwitnessed form of will preceding it. It does not purport to be a codicil nor does it attempt to adopt by reference or incorporate or republish the unexecuted form of will.

Furthermore, the affidavit cannot be construed as a codicil or a will since it was not executed with testamentary intent that it in itself constitute a will or a codicil. Its language makes no reference to its own execution but only to the annexed or foregoing instrument as one that had been signed and witnessed previously. In Caywood v. Caywood, Tex.Civ.App., 216 S.W.2d 821, writ ref., the instrument offered for probate was a letter written by a navy pilot to his mother which contained the statement, “You see my Will is m^de out to you and sister so this will be easy for you to get if I was to have a little hard luck.” The judgment of the district court admitting the letter .to probate was reversed and rendered by the Court of Civil Appeals, which said: “So, in the instant case, if the deceased meant only to say that he had executed a will and to s,tate .to whom he had disposed of his property in such will, then the language used would not constitute a will. * * The court concluded that the writer intended that his mother and sister would receive his property, not by the provisions of the letter but by the terms of the will that he said he had previously executed. So, in the instant case the testatrix could not have intended that the beneficiaries named in her will would receive the property by the provisions of the affidavit, but by the terms of the will which she thought she executed but which she in fact did not execute. See also Hinson v. Hinson, 1955, 154 Tex. 561, 280 S.W.2d 731.

1 It is our view that the self-proving provisions have only the effect' of authorizing the substitution of affidavits in lieu of testimony offered before the court. The effect of construing the affidavit as a will or part thereof would be to nullify the mandatory requirements for the making of a valid will under Section 59 of the Probate Code of Texas.

Judgment affirmed.


author: NORTHCUTT, Justice.

text:
    Charlie E. HART, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 7435.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 15, 1965.
    Rehearing Denied March 8, 1965.
    A. W. Salyars, Lubbock, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   NORTHCUTT, Justice.

This is a workman’s compensation case. Charlie E. Hart, appellant here, was injured on July 8, 1955, and notified proper persons of his injury and filed his- claim with the Industrial Accident Board of Texas. Thereafter the Industrial Accident Board refused to take any action on Hart’s claim contending it did not have jurisdiction. Hart appealed from the decision of the Board and made Texas Employers Insurance Association, the insurance carrier, party defendant. Hart will hereafter be referred to as plaintiff and Texas Employers Insurance Association as defendant.

Defendant filed its motion for a summary judgment. The plaintiff did not file any sworn pleadings to offset or deny the facts alleged in defendant’s sworn motion for summary judgment. Consequently, we take such allegations as true. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236 (N.R.E.); For the facts and as to matters presented to the trial court, we set out a portion of defendant’s motion for summary judgment as follows:

“The date of the claimed injury is July 8, 1955. Defendant commenced the payment of weekly compensation, which was suspended August 15, 1955, because plaintiff had resumed work, and report of suspension of payment, bearing date September 7, 1955, was received by the Industrial Accident Board of Texas September 9, 1955. Plaintiff made claim for compensation to the Industrial Accident Board of Texas, which claim, bearing date of September 20, 1955, was received by the Board on September 29, 1955, and in support of his claim plaintiff submitted to the Board a supporting statement, signed by his attorney, which, bearing date of October 25, 1955, was received by the Board on October 26, 1955. The Board scheduled plaintiff's claim for hearing November 29, 1955; but on December 14, 1955, the Board gave notice that the hearing previously scheduled was canceled because plaintiff had not filed medical in support of his claim. Plaintiff did not thereafter pursue his claim before the Board until November 8, 1963, on which date plaintiff’s attorney addressed to the Board a letter, received by the Board on November 12, 1963, in which he requested that his claim be set for hearing. To this request the Board made reply by letter to plaintiff’s attorney, dated November 14, 1963, saying:
“ ‘The Industrial Accident Board has jurisdiction over a claim only 401 weeks from date of injury. Since this period has expired in the above styled case, the Board will be unable to assist you and your client.’
In maintaining this suit, plaintiff attempts to characterize the Board’s letter of November 14, 1963, as an award or decree for which he is entitled to maintain an appeal.
“Defendant is entitled to summary judgment either that plaintiff take nothing or that the suit be dismissed for want of jurisdiction because:
“(a) The Board’s letter of November 14, 1963, is not an award or decree from which an appeal is authorized by the statute;
“(b) The Board correctly concluded that, after the expiration of 401 weeks from the date of the claimed injury, it was without further jurisdiction, and, if the Board be without jurisdiction, this court is likewise without jurisdiction; and
“(c) Further the complete failure to pursue his claim for the period of almost eight years intervening between the Board’s order of December 14, 1955, canceling the hearing, and the November 8, 1963, letter of plaintiff’s counsel amounts to an abandonment of the original claim, so that plaintiff stands here as if no claim for compensation had ever been filed at all.
“Defendant has deposited with the clerk of this court what is certified by C. F. Boyd, Secretary of the Industrial Accident Board of the State of Texas, as a full and correct copy of the Board’s entire file in the matter identified as 0-45686, Charlie E. Hart, employee, v. United Carbon Co., Inc., employer, and an additional copy of said same file, similarly certified, is served upon plaintiff’s counsel with his copy of this motion. The fact statements above made, and on which are founded the legal conclusions here stated, find their complete support in the certified copies so filed and served.”

The trial court entered judgment sustaining defendant’s motion for summary judgment and ordering plaintiff’s suit be dismissed for want of jurisdiction. From that judgment plaintiff perfected this appeal. The plaintiff presents this appeal upon five points of error contending the court erred in entering summary judgment thereby holding as a- matter of law the jurisdiction of the Board over plaintiff’s claim terminated at the expiration of 401 weeks from date of alleged injury;' plaintiff,- as a matter of law, abandoned his claim before the Board; that the Board’s letter of November 14, 1963, was not a final decision from which claimant was entitled to appeal to the district court and, as a matter of law, the district court did not have jurisdiction of plaintiff’s suit as alleged in his original petition.

The provisions as to an appeal from the action of the Industrial Accident Board provide that any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall file with said Board that he will not abide by said ruling and decision. We think the effect of the letter written to the plaintiff by the Industrial Accident Board holds that it could not make a final ruling or decision as to plaintiff’s claim because it did not have jurisdiction to so act. At any rate, the Board has made no final award fixing the compensation to which the plaintiff might be entitled nor denying him compensation. These questions must first be passed upon by the Board before an appeal may be taken.to the courts. Industrial Accident Board of Texas v. Hudson, Tex.Civ.App., 246 S.W.2d 715. Mandamus was a proper order in that. case.

It is stated in the - case of Cordova v. Associated Employers Lloyds, Tex.Civ.App., 250 S.W.2d 945 (writ refused), as follows:

• ;“We overrule the points of error. The Board’s approval of a compromise agreement- is not an award of compensation, nor is it an order denying 'compensation. The district court has ño jurisdiction to pass Upon á claim for compensation unless its jurisdiction >is invoked by an appeal from an order of the Industrial Accident Board, either denying - or awarding compensation. Therefore, the appellant was not entitled to prosecute his two suits for compensation without having brought an original proceeding in a court of competent jurisdiction to set aside the compromise settlement agreement. Commercial Casualty Ins. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081 [89 S.W.2d 1116]; Traders and General Ins. Co. v. Bailey, 127 Tex. 322, 94 S.W.2d 134; Texas Employers Insurance Association v. Kennedy, 135 Tex. 486, 143 S.W.2d 583; Caffey v. Aetna Casualty & Surety Co., Tex.Civ.App., 219 S.W.2d 530; 45 Tex.Jur., p. 702, sec. 238, and authorities cited in footnote 4.”

See also Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805, where it is stated:

“The jurisdiction of the courts in suits involving workmen’s compensation is appellate in character, even though the trial in such cases is de novo. It must be shown, among other things, that the Industrial Accident Board has made a final award on a claim for compensation before the jurisdiction of the courts can be invoked. Tally v. Texas Employers’ Insurance Association, Tex.Com.App., 48 S.W.2d 988; Petroleum Casualty Co. v. Webb, 127 Tex. 91, 92 S.W.2d 236. It may be conceded, without deciding, that the writ of mandamus is available to the parties in interest for the purpose of compelling the Industrial Accident 'Board to proceed to hear and determine a claim for compensation on the refusal cff the board to act, but this is hot the purpose of this suit. It is sought here to compel the board' to act óñ d claim filed before it in á specific niahner. In a word, the parties seek to control the discretion of judgment of the board and thereby avoid, the necessity. of procuring from the board a final award and an appeal therefrom. The equitable remedy of a writ of mandamus is not available as a substitute for a legal remedy provided by law. Navarro County v. Tullos, Tex.Civ.App., 237 S.W. 982 (writ refused). Thus it indisputably appears that the parties have not exhausted their rights before the Industrial Accident Board provided by the Workmen’s Compensation Act. There being no final award by the board on the claim for compensation filed by Glenn, the parties have not the right to invoke the jurisdiction of the district court until they have exhausted the rights given them by the workmen’s compensation law.”

When the Board herein refused to do anything because of lack of jurisdiction it refused to hold a hearing and make a final determination or decision either granting or refusing the plaintiff’s claim for compensation. The plaintiff was without any other remedy than to bring mandamus proceedings to have determined the jurisdictional question and to compel the Board to set a date for hearing his claim and to hear and make a final determination thereof if the Board had jurisdiction. Kelly v. Industrial Accident Board, Tex.Civ.App., 358 S.W.2d 874 (writ refused).

We are of the opinion, and so hold, that the Industrial Accident Board has never made a ruling or decision upon the claim of the plaintiff as to authorize the plaintiff to appeal to the district court but has merely ruled that it could not do so because it did not have jurisdiction. The sole question then to be determined, if an appeal was proper, would be the jurisdictional question. It would still be necessary for the Board to pass upon plaintiff’s claim. We hold the letter here in question was not such ruling or decision by the Board as would authorize an appeal to the district court.

Judgment of the trial court is affirmed.


text:
    DAUGHTERS OF ST. PAUL, INC., Appellant, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 14342.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 10, 1965.
    Rehearing Denied March 11, 1965.

      Pat Maloney, San Antonio, for appellant.
    Sam S. Wolfe, City Atty., William R. Ward, Asst. City Atty., Arley V. Knight, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by appellant, Daughters of St. Paul, Inc., duly incorporated as a non-profit corporation, doing business as St. Paul Catholic Book and Film Center, against appellees, City of San Antonio and San Antonio Independent School District, seeking a declaratory judgment exempting its property at 114 East Main Plaza, located within the corporate limits of both of appellees, from any ad valorem tax. Appellees answered denying that appellant was entitled to an ad valorem tax exemption on its property at 114 East Main Plaza, and by way of cross-action sought to collect past due taxes on such property, together with interest and'penalties for the years 1958 to 1962, both inclusive, amounting to the total sum of $4,245.59. Appellees’ cross-action was not seriously contested.

1 The cause was submitted to the court, a jury being waived, upon an agreed statement of facts, plus the deposition of Sister Mary Rosalba, with exhibits attached thereto. The trial court denied any tax exemption on the property and rendered judgment for the past due taxes, from which judgment the Daughters of St. Paul, Inc., has prosecuted this appeal.

Appellant’s first point is that the court erred in holding that it is not entitled to ad valorem tax exemption within the meaning of Article VIII, Sec. 2, of the Texas Constitution, Vernon’s Ann.St.

Art. VIII, Sec. 2, reads in part as follows:

“All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax; but the legislature may, by general laws, exempt from taxation * * * institutions of purely public charity; * *

Appellant bases its claim for a tax exemption upon the provision relating to “institutions of purely public charity.” ,

The authority given to the Legislature in the above constitutional provision has been exercised and its action, insofar as it relates to institutions of purely public charity, is found in Sec. 7 of Art 7150, Vernon’s Ann.Civ.Stats., reading as follows:

“Public charities. — All buildings belonging to institutions of purely public charity, together with the lands belonging to and occupied by such institutions not leased or otherwise used with a view to profit, unless such rents and profits and all moneys and credits are appropriated by such institutions solely to sustain such institutions and for the benefit of the sick and disabled members and their families and the burial of the same, or for the maintenance of persons when unable to provide for themselves, whether such persons are members of such institutions or not. An institution of purely public charity under this article is one which dispenses its aid to its members and others in sickness or distress, or at death, without regard to poverty or riches of the recipient, also when the funds, property and assets of such institutions are placed and bound by its laws to relieve, aid and administer in any way to the relief of its members when in want, sickness and distress, and provide homes for its helpless and dependent members and to educate and maintain the orphans of its deceased members or other persons.”

Appellant contends that a liberal construction should be given to the above provisions of the constitution and statutes, so as to include it within the exemption provided. The Supreme Court of Texas in River Oaks Garden Club v. City of Houston, 370 S.W.2d 851, has decided this question against appellant’s contention in the following language:

“The courts of some states construe constitutional and statutory tax exemptions accorded institutions of purely public charity liberally, some strictly. See Zollman’s American Law of Charities, pp. 460-468. The courts of Texas have been committed to a strict construction since an early date. See Morris v. Lone Star Chapter No. 6, Royal Arch Masons, 68 Tex. 698, 5 S.W. 519. Moreover, a strict construction seems more in harmony with the intent of the people when they adopted the Constitution in 1876, and conforms to our announcement in Cox v. Robison, 105 Tex. 426, 150 S.W. 1149, 1151, that ‘The fundamental rule for the government of courts in the interpretation or construction of a Constitution is to give effect to the intent of the people who adopted it.’ The action of the delegates in the Constitutional Convention of 1875 on various' tax exemption proposals, as reflected in the Journal of the Convention, indicates that they intended that exemptions from taxes be narrow and limited.
“In Morris v. Lone Star Chapter No. 6, Royal Arch Masons, 68 Tex. 698, 5 S.W. 519, 520-521, we stated the underlying reason for a strict construction of the ‘used exclusively’ provision of the constitutional tax exemption, as follows:
“ ‘The reason of these rules would seem to be that it is but just and equitable that the property of all persons and associations of persons should bear the burdens of government in equal proportion; and hence it is to be presumed that the law-makers did not intend to make an exception in favor of any class unless that intention be clearly expressed.’
“In Massachusetts General Hospital v. Inhabitants of Belmont, 233 Mass. 190, 124 N.E. 21, 25, the Supreme Judicial Court of Massachusetts stated the rationale for exemption from taxes of property of charitable institutions as well as a sound reason for strict construction in these words:
“ ‘One ground upon which exemptions from taxation of charitable institutions like the complainant can be justified in a constitutional sense is that they minister to human and social needs which the state itself might and does to a greater or less extent undertake to satisfy. The ultimate obligation of the state thus is discharged by the private charity. To that extent the state is relieved of its burden. (In re) Opinion of (the) Justices, 195 Mass. 607, 609, 84 N.E. 499. An exemption from taxation is in the nature of an appropriation of public funds, because, to the extent of the exemption, it becomes necessary to increase the rate of taxation upon other properties in order to raise money for the support of government.’ ”

With the above holdings of the Supreme Court in mind, let us examine the facts of this case. The facts are largely stipulated and are undisputed. Appellant was incorporated on September 12, 1963, under the Texas Non-Profit Corporation Act with domicile in Bexar County, Texas. The nature of appellant’s legal status prior to that time is not disclosed.

Appellant’s two-story and basement building, located at 114 East Main Plaza in downtown San Antonio, is used exclusively by appellant. The entire ground floor is used as a book and film center or store, open to the general public, and contains the books, pamphlets and other printed matter sold or distributed by appellant. The second floor of the building is used as living quarters for the four nuns who operate the book and film center, and there is a private chapel on that floor, where individual prayers are said daily and Mass is said once a week. The four nuns cook, eat, sleep, pray and live there because they' have no other place to live, and the rules of their Order require that they do so. The basement is primarily used for storage purposes.

Appellant’s primary purpose and mission has been and is the distribution of Roman Catholic literature and religious articles principally by sale, but also by gift to the general public. Another important purpose has been and is the selection and recommendation of young girls as postulants for the Daughters of St. Paul, Inc., a Massachusetts Corporation, with the Mother House in Boston, at which place the girls accepted receive a high school and college education. Daily two of the four nuns operate the book and film center, and the other two go out to everyone to spread the good literature to the people.

Most, but not all, of the books sold in the book center are printed by the nuns of the Massachusetts corporation in Boston, and are invoiced to appellant at their selling price, but a forty percent discount is allowed appellant when the books are paid for. Similar discounts are allowed by the other publishers furnishing books to appellant. The money realized from the sale of the books is appellant’s sole source of income. All of appellant’s expenses, including the living expenses of the nuns, are paid from this income. In the event the appellant is dissolved, all of its property and assets are to be turned over absolutely to the Massachusetts corporation, to be used in a manner undisclosed by the evidence.

Appellant’s reported gross income for 1961 was $15,750.00; for 1962, $16,500.00, and for 1963, $19,200.00. Appellant listed as “outgo” $600.00, $600.00 and $1,200.-00 for these years, under the designation of “Charity,” this word including “Donations, Mass Intentions, Free pamphlets, and periodicals.” From time to time, appellant sends undisclosed amounts of money, over and above the money owed for books, to the Mother House in Boston, where it is used for undisclosed purposes.

While Art. VIII, Sec. 2, of the State Constitution is not self-executing and without the provisions of Art. 7150, Sec. 7, Vernon’s Ann.Civ.Stats., would be ineffective, nevertheless, it is the constitutional provision that authorizes the Legislature to act, and it is the act of the Legislature that puts into effect the provisions of the Constitution. Appellant is not here seeking a tax exemption under some other provision of the Constitution or statutes, hut under authority of Sec. 2 of Art. VIII of the Texas Constitution as placed in effect by Sec. 7 of Art. 7150, supra. It is plain from both the Constitution and statute that appellant must be an institution of purely public charity before there can be a tax exemption.

Sec. 7 of Art. 7150 defines such an institution as above set out, and it is apparent that appellant is not such an institution. There are many kinds of valid charities, Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273, but it is an “institution of purely public charity” that is granted a tax exemption under the provisions of Sec. 7, supra. The tax exemption provided for in that section cannot rest on inference or implication, it must be established by terms too clear and plain to be mistaken, the burden being upon the claimant to prove the exemption in such manner that there can be no doubt. Raymondville Memorial Hospital v. State, Tex.Civ.App., 253 S.W.2d 1012.

The claimed exempt charity must be wholly such, it cannot be partially exempt. The property must be used exclusively for charity, unmixed with any other purpose or object. Malone-Hogan Hosp. Clinic Found. v. City of Big Spring, Tex.Civ.App., 288 S.W.2d 550. Appellees have furnished the following comparison between the provisions of Art. 7150, Sec. 7, supra, and the provisions of appellant’s charter:

Article 7150 (7)
1. Dispense aid to its members and others in sickness, distress, or at death.
2. Its funds, property and assets are placed and bound by its laws to relieve, aid and administer relief to members when in want, sickness and distress.
3. Provide homes for its helpless and dependent members.
4. Educate and maintain the orphans of its deceased members or others.
Appellant’s Charter
1. General missionary, religious and educational work.
2. Give moral instruction to the public.
3. Edit, print and publish books, periodicals, bulletins and papers in connection with missionary work.
4. Disseminate religious and educational instruction.
5. Educate and train young women for the sisterhood.
6. Give aid to the needy.
7. Promote and further the interests of religion and education.

It is apparent that appellant is not an institution of purely public charity as is defined by Sec. 7, supra, and is not entitled to the tax exemption claimed. River Oaks Garden Club v. City of Houston, supra. The trial court correctly entered judgment for appellees for their taxes, penalties and interest for the years 1958-1962, inclusive, for the reason that there is no evidence as to appellant’s organization, powers, purposes, pursuits, activities or right to a tax exemption prior to issuance of its charter by the Secretary of' State on September 12, 1963.

The judgment is affirmed.