source: Caselaw Access Project

author: BELCHER, Commissioner. MORRISON, Judge. McDonald, judge.

license: Public Domain

text:
    Ex parte Guy DRAKE.
    No. 34693.
    Court of Criminal Appeals of Texas.
    June 27, 1962.
    Rehearing Denied Oct. 24, 1962.
    Second Rehearing Denied Dec. 5,1962.
    Third Rehearing Denied Jan. 9, 1963.

      William Davenport, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order of the District Court of Tom Green County remanding the appellant to the Sheriff of said county for extradition to the State of Alabama.

The executive warrant of the Governor of Texas, the application for the requisition, the requisition, and a copy of the indictment were introduced in evidence. They made out a prima facie case that the accused is a fugitive from justice and subject to extradition. Ex parte Gesek, 164 Tex.Cr.R. 652, 302 S.W.2d 417.

Appellant contends that there is no proof in the record showing that “false pretense” is a crime according to the laws of the State of Alabama. The Alabama requisition re-, cites that he stands charged with “the crime of false pretense, as shown by indictment”, and alleged in the application to have been committed on June 17, 1961.

There is no proof of the laws of the State of Alabama. In the absence of such proof, it will be assumed that the laws of Alabama are the same as those of Texas. Art. 1545, Vernon’s Ann.P.C., makes it an offense to acquire any thing of value.

“by means of some false or deceitful pretense or device, or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the right of the party justly entitled to the same.”

The Alabama indictment alleges that the appellant

“did falsely pretend to C. L. Beale, with intent to defraud, that he had on deposit at The Commercial Bank, Andalusia, Alabama, $179.22, and, by means of such false pretense, obtained from the said C. L. Beale money or merchandise * *

The appellant is sufficiently and substantially charged with a crime.

The evidence was sufficient to authorize the trial court to conclude, as he did, and remand appellant for extradition.

The judgment is affirmed.

Opinion approved by the Court.

On Motion for Rehearing

MORRISON, Judge.

Appellant urges that we discuss his contention that the indictment which was introduced at the hearing alleged no date on .which the offense, with which he was charged having committed in the State of Alabama, occurred. The indictment reads in part as follows:

“Circuit Court of Montgomery County, November Term A.D. 1961.
“The Grand Jury of said County charge that, before the finding of this indictment, Guy Drake * * * did *

Were we writing on a clean sheet, we might be inclined to agree with appellant’s contention, but we find that this Court has held in Pearce v. State, 32 Tex.Cr.R. 301, 23 S.W. 15, that an indictment from the same State containing the same allegation as to when the offense was committed was sufficient to authorize extradition. Ex parte Strom, 168 Tex.Cr.R. 130, 324 S.W. 2d 224, we said:

“We hold that the complaint substantially charges appellants with the crime of robbery in the State of California and that the question of its sufficiency as a criminal pleading is one to be determined by the courts of that State.”

See also Ex parte Woodland, 146 Tex.Cr.R. 616, 177 S.W.2d 62, and Annot., 46 A.L.R. 2d, pp. 1151, 1159.

Appellant’s motion for rehearing is overruled.

On Appellant's Second Motion for Rehearing

McDonald, judge.

Appellant insists that Pearce v. State, 32 Tex.Cr.R. 301, 23 S.W. 15, is incorrect if the holdings of this court in its original opinion and on motion for rehearing are correct.

We have reviewed with the utmost care our prior holdings and the cases cited therein.

The writer is also impressed with the opinion written by Judge Simkins in Pearce, supra. A careful analysis of Pearce is most revealing. The majority holding of this court as expressed in Pearce was not in the opinion written by Judge Simkins, however. The views of the majority are expressed by then-Presiding Judge Hurt and Judge Davidson in their short opinion following the opinion by Judge Simkins.

We remain convinced that our prior opinions correctly disposed of this case.

Appellant’s second motion for rehearing is overruled.


author: DENTON, Chief Justice.

text:
    Linda Joan Eddleman FATHEREE et vir v. Alton L. EDDLEMAN.
    No. 7206.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 17, 1962.

      McCarthy, Carnahan, Fields & Haynes, Amarillo, for appellants.
    H. B. Porter and Archie S. McDonald, Dumas, for appellee.
   DENTON, Chief Justice.

This is a suit brought by a mother as plaintiff against a father to change the custody of their three-year old son. Prior to this suit, the parties were divorced and custody was awarded to the father. Subsequently, this suit was filed and the trial court submitted the case to a jury. Based on the jury verdict, the trial court entered judgment that custody of the child be retained by the father. The mother’s motion for new trial was timely overruled and this appeal was timely perfected. Appellant does not challenge the sufficiency of the evidence to support the verdict of the jury, but complains of the trial court’s charge and its action in excluding certain testimony. Appellant’s first three points of error have to do with the court’s charge to the jury. The case was submitted on one special issue which read as follows:

“Do you find from the preponderance of the evidence that since the former judgment granting custody of the minor child, Jerry Lee Eddleman to Alton L. Eddleman, there has occurred such a material change of conditions that the best interest of said minor child require a ‘change of custody to Linda Joan Fatheree?
“Answer Yes or No
“Answer: No.”

With the following explanatory instruction:

“In this connection, you are instructed that not every change in conditions justifies the modification of a former decree of divorce awarding the custody of the minor child. Such changed conditions must be such as affect the welfare and best interests of the child and be of such nature that to leave the custody of the child as previously adjudicated would be injurious to the welfare of the child and requires that such custody be changed.”

It is appellant’s contention that the special issue as framed is erroneous in that it refers to the former judgment awarding custody of the child to appellee, and appellant also objects to the use of the word “require” in the issue. Both the appellant’s pleadings and testimony referred to the former judgment awarding custody. This fact was a necessary predicate to the present cause of action. The burden of proof is vastly different when custody is sought in a divorce proceeding, and when change of custody is sought after a divorce and custody has been previously awarded. We fail to see any error in such wording in determining if the jury found that a material change of conditions had occurred as to “require” a change of custody. The trial court was using language often used by appellate courts of this state in stating the general rule in this type of case. Amend v. Amend (Civil Appeals), 268 S.W.2d 206 (NWH) ; Pearson v. Pearson (Civil Appeals), 195 S.W.2d 188 (Refused) (NRE); Roberts v. Tippett (Civil Appeals), 239 S.W.2d 859 (NWH). We conclude the special issue submitted was substantially correct.

As to the explanatory instruction given, appellant contends no instruction was necessary, and the instruction as given was a comment by the court on the weight of the evidence. Article 4639a, Vernon’s Ann. Tex.Civ.St., was amended by the 57th Legislature in 1961 by adding the following language:

“provided, however, that the judgment of the court in a jury trial of a divorce cause may not contravene the jury’s determination of child custody. In any hearing held in this State concerning the custody of a child, whether pursuant to a divorce' cause or not, any party to the hearing may, upon assumption of jury costs, demand a jury to determine custody of the child, and the judgment of the court must conform to that determination.”

This amendment was obviously intended to make juries’ verdicts relative to custody of minor children binding upon the court and not merely advisory. Therefore, in such cases, the same rules governing the submission of special issues must now be applied to child custody cases tried before a jury. Rule 277, Texas Rules Civil Procedure, authorizes the trial court to “submit such explanatory instructions * * * as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues * * As the tryer of the facts, the jury is entitled to explanatory instructions to assist them in rendering a verdict. The very crux of appellant’s cause of action is to show a material change of conditions since the divorce. The term “change of conditions” as used in child custody cases has come to be a term with a distinctive meaning in law. We are therefore of the opinion the trial court was justified in giving the explanatory instruction in connection with the special issue submitted.

Appellant also contends the instruction is erroneous in that it constitutes a comment on the weight of the evidence. It is well settled that a showing of only slight change of conditions is not sufficient grounds to change custody of children. Short v. Short (Supreme Court), 354 S.W. 2d 933. The change of conditions must be of a material nature. Although the general rule of law relative to the proof required to support the change of a child’s custody is well settled, the particular language used by the individual judges in stating the rule does vary. In our opinion, the explanatory instruction given in the case at bar is substantially correct and generally follows the established rule of law. Short v. Short, supra; Amend v. Amend, supra; Neal v. Medcalf (Civil Appeals), 244 S.W.2d 666 (NWH); Alexander v. Alexander (Civil Appeals), 309 S.W.2d 886 (NWH); Paynter v. Janca (Civil Appeals), 331 S.W.2d 814 (NWPI). We conclude appellant’s first three points of error are without merit.

Appellant next contends the trial court erred in overruling its objection to a question propounded to appellant on cross-examination. Appellee’s counsel inquired of appellant if the appellee had charged her with adultery “in that other proceeding”. Over appellant’s objection she testified in the affirmative. Appellee’s counsel then asked, “Were the things that you were charged with in that prior suit, do you think they are correct?” An objection by appellant to the latter question was sustained and it was unanswered. The question relative to the charge against appellant in the prior divorce case was improper. However, after reviewing the entire case, we are of the opinion it was not such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause a rendition of an improper judgment in the case. Rule 434, T.R.C.P.

Appellant also contends error was committed in the exclusion of testimony of appellant’s present husband to the effect he had heard the child deny appellant was his mother. This testimony was excluded on the ground it was hearsay. Appellant argues this testimony was not offered for the purpose of showing the truth of a statement made but to show appellee and his parents were prejudicing the child against his mother, the appellant. At the time of this hearing, the child was only three years of age. Any statement by a child of such tender years, whether it be hearsay or not, cannot be of probative force. The statement if admitted into evidence, would not have been decisive in the trial of this case. These two points present no reversible error.

On the date of the trial, appellee filed an instrument designated “MOTION TO REQUIRE PLAINTIFF TO ASSUME JURY COSTS” and cited Section 1, Article 4639a, V.A.T.S. The trial court sustained this motion and ordered that appellant deposit the sum of $250.00 with the clerk or the case would be stricken from the jury docket. Pursuant to the court’s order, appellant deposited that sum over its timely objection. It is undisputed that appellant had previously complied with Rule 216, TRCP, by depositing a jury fee of $5.00 with the clerk. The record indicates the sum of $250.00 represented $5.00 for each member of the jury panel present. We are called upon to interpret the phrase “upon assumption of jury costs” as used in Article 4639a as amended. As previously stated, the plain intention of the amendment was to make the jury’s verdict in these cases binding upon the trial court and not advisory. A fundamental rule of statutory construction is that statutes should be so construed as to carry out the legislative intent. Wood v. State ex rel. Lee, 133 Tex. 110, 126 S.W. 2d 4, 121 A.L.R. 931. It is equally well established that a statute must be reasonably construed, consistent with the general principle of law. Magnolia Petroleum Company v. Walker, 125 Tex. 430, 83 S.W.2d 929.

Rules 216 and 217, T.R.C.P., provide the method whereby a party to a civil suit may obtain a trial by a jury. Rule 216 provides, “No jury trial shall be had in any civil suit, unless application be made therefor and unless a fee of five dollars if in the district court * * * be deposited by the applicant with the clerk to the use of the county * * (Emphasis added.) Rule 217 provides for an oath of inability to pay but has no application here. Although it may be argued the phrase “upon assumption of jury costs” is susceptible to more than one interpretation, we are of the opinion only one reasonable interpretation can be given. The clear legislative intent is that if a party to a child custody proceeding elects to demand a jury to decide the custody issue, he is only required to comply with Rule 216, to-wit: make application therefor and deposit a fee of $5.00; or file an affidavit of inability to pay as provided for in Rule 217.

An interpretation which requires a party demanding a jury in such cases to deposit a larger or different amount would be unreasonable and cause an injustice to litigants. Such construction would lead to uncertainty and confusion. Wood v. State, supra. The actual costs of providing for and maintaining a jury would be difficult, if not impossible, to determine. Many factors in addition to the jurors’ daily fees enter into the actual jury costs. To require a substantial sum to be deposited in order to have a child custody case determined by a jury would greatly prejudice the rights of many litigants. This is contrary to the plain intent of the Legislature. We conclude the trial court erred in requiring appellant to deposit any sum in addition to that required by Rule 216 in order to obtain a jury trial. However, such error is not one which goes to the merits of the case as it could have no effect upon the jury’s verdict. The trial court’s judgment is therefore reformed and corrected so as to overrule appellee’s “MOTION TO REQUIRE PLAINTIFF TO ASSUME JURY COSTS”. The clerk of the trial court is therefore directed to pay over to appellant the sum of $250.00 which was paid into the treasury of the court pursuant to the court’s erroneous order.

The judgment of the trial court is so reformed and, as reformed, affirmed.


author: CHAPMAN, Justice.

text:
    L. D. HAWKINS, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 7197.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 26, 1962.
    Rehearing Denied Jan. 7, 1963.
    Herrick & McEntire, Fort Worth, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal by claimant below, L. D. Hawkins, from a judgment for Texas Employers’ Insurance Association based upon a jury verdict.

All emphases shown herein are ours.

Appellant went to trial upon pleadings alleging total and permanent incapacity as a result of an alleged ruptured interverte-hral disc in the lumbar area of the back while in the course of his employment in Hutchinson County by M. W. Kellogg Company.

In response to the special issues submitted, the jury found appellant suffered total incapacity beginning upon the day of the injury, October 4, 1960; that such total incapacity was temporary rather than permanent; that its duration was one week; that he also suffered a permanent partial incapacity beginning on October 11, 1960; that an average weekly wage as of the date of injury fair and just to both plaintiff and defendant was $154; that plaintiff’s average weekly wage earning capacity during the period of partial incapacity was $156; and that payment of compensation in weekly installments, instead of a lump sum, would result in manifest hardship and injustice.

The trial court instructed the jury on “total incapacity” as follows:

“The term TOTAL INCAPACITY does not imply one’s absolute inability to perform any kind of labor, but means that one must be so incapacitated that he becomes disqualified for performing the usual tasks of a workman to such an extent that he cannot procure and retain employment. You are further instructed that the term TOTAL INCAPACITY does not imply that one has such incapacity merely in the event that, after an injury, he is unable to do the same or as much and hard work as he did before the injury, but if one has sufficient capacity for physical work in any employment suited to his experience and condition so that he is fit to find and retain work therein with reasonable regularity and duration, then such person is not regarded as totally incapacitated.”

It will be noted that the first sentence of the definition is in substantially the same language that was approved by the Supreme Court in this state in a workman’s compensation case as far back as 1933. The definition in the first sentence of the quoted definition has been approved many times since as a proper definition for the term “total incapacity” in a workman’s compensation case. In the Mallard case cited in footnote 2 the Supreme Court held that the term “implies disability to perform the usual tasks of a workman and not merely the usual tasks of any particular one trade or occupation.” Unquestionably, the trial court would have been correct had he stopped with the first sentence of the definition given, and both plaintiff and defendant would have been fully protected under the definition.

Though this court has held the definition here given did not constitute reversible error under the objection that it restricted the jury to a consideration of the same type of employment as that in which claimant was working at the time of injury, neither this court nor any other court of this state, so far as we have been able to determine, has ever approved the definition given here as a proper definition. Under the facts of this case we particularly believe it constituted a comment by the court upon the weight of the evidence, as we shall proceed to demonstrate.

The testimony of appellant shows that at one time he worked for a short period of time in a grocery store, a cafe, and a barbeque place. All of these require physical work. Under the rambling second sentence of the definition given the jury had a perfect right to speculate upon the different types of physical work appellant had engaged in during his life and to conclude if he could find and retain employment in any of them with reasonable regularity and duration he was not totally incapacitated. The court told the jury in effect that appellant was not totally incapacitated just because he was unable to do the same or as much hard work as he did before the injury if he had sufficient capacity to do physical work “in any employment suited to his experience and condition,” and it is not even plain in the definition what the word “condition” means. Under such definition if he could secure a job of polishing apples in a grocery store, cooking hamburgers in a cafe, or vending barbeque from a roadstand and could retain such job or jobs with reasonable regularity, he would not be totally incapacitated. We do not believe the workman’s compensation law passed for the benefit of working men where their recovery is limited as it is by statute contemplated . that a boiler maker capable of drawing $3.90 an hour could not recover total and permanent disability if he could cook hamburgers, dish out barbeque, or polish apples after an injury that incapacitated him from doing the work to which he had been accustomed most of his working life and which had become his craft, even though he had spent some time working in a grocery store, a cafe, and a barbeque stand as part of his experiences in earning a livelihood. It is true he had been able to work in his own craft after his injury but only because of the benevolence of his employers or foremen who permitted him to polish rusty bolts and flag for draglines, work that did not require stooping, bending, lifting, climbing ladders, and working in close places, such as the testimony here shows is expected of a boiler maker.

We are convinced the second sentence of the definition under discussion was improper under the facts of this case and constituted reversible error, but in any event the case must be reversed for another reason.

In appellant’s motion for new trial error is asserted because the verdict of the jury, taken as a whole, which had the effect of awarding only $35 compensation for the injury was so against the preponderance of the evidence as to be manifestly unjust.

From the record made it becomes the duty of this court to weigh and consider that which supports the verdict and that which does not, and to set aside the judgment and remand the case if after such consideration we conclude the verdict is so contrary to the overwhelming weight of all the evidence as to be manifestly unjust, regardless of whether there is some evidence to support it. Prewitt et al. v. Watson, Tex.Civ.App., 317 S.W.2d 954, approved, 159 Tex. 305, 320 S.W.2d 815; In re King’s Estate, (King v. King et al.) 150 Tex. 622, 244 S.W.2d 660.

The testimony shows without contradiction that appellant in welding rings onto a twelve inch steel pipe, nine feet long, weighing approximately 540 pounds, was required to lift up one end and place it on a dolly and then go to the other end and lift it. He testified it was so heavy he would have to jerk on it to raise it. He had just started that particular task for the second day when injured. “So, as I got braced and went to jerk on it, that time the pain hit me in the back and my legs fell out from me * * when he realized he was hurt, he reported it to his superior, was sent to Dr. Barksdale at Borger and by him placed in traction. He testified after he got out of traction, he went to Fort Worth, “inquired to find out the best doctor I could find,” asked his counsel to arrange for him to see Dr. James E. Holmes and went to him for examination first on October 20, 1960.

Dr. Holmes is a graduate of Tulane Medical School and did his residency in orthopedic surgery at Charity Hospital in New Orleans. He is a member of the orthopedic staff at Tulane Medical School, where he lectures to students several times a year, is on the staff of all the Fort Worth hospitals, a member of the American Academy of Orthopedic Surgeons, and certified by the American Board of Orthopedic Surgery.

Dr. Holmes testified by deposition that he found extensive muscle spasm present in the low back, tenderness on the left side of his back at the belt line, and some depression of the heel cord reflex on the left side. The straight-leg-raising test showed positive. Based on his numerous tests, X rays taken, and objective findings, he diagnosed nerve root depression probably from a ruptured disc.

Dr. Holmes again saw appellant on October 27, 1961. At that time he still had tenderness on the left side of his back and still had muscle spasm there. X rays taken at that time showed some changes since the first time and some settling or narrowing over the lumbo sacral interval not present in the first X rays, with a definite narrowing between L-5 and S-l. He stated appellant could not pass a physical examination for work requiring bending, stooping, lifting, ladder climbing, or getting into awkward positions. When asked if he had an opinion as to what his disability was in terms of being able to obtain or retain employment requiring the performance of the usual tasks of a working man, he answered that he was totally disabled.

Dr. Gerald King, a general practitioner of Fort Worth, examined Mr. Hawkins first on January 22, 1961. He testified the straight-leg-raising test was positive at 50° on the left, he had a retarded left knee jerk, the Lasague test was positive on the left and that all those were objective findings. He also found muscle guarding and retraction of the low back. He next examined him on October 27, 1961, before the deposition was taken, and found absence of Achilles tendon reflex and loss of almost all tactile sensation in the left leg. He diagnosed a ruptured disc at L5-S1 or L-5 L-4 level. He testified claimant was totally disabled from doing any labor involving stooping, lifting, climbing ladders, or getting in awkward positions and that the disability was permanent. He testified he would not pass him for physical work requiring such exercise.

Appellant testified he was forced to go back to work on December 14, 1960, so he could arrange for a place to sleep and eat. He was given a job of overseeing tube fitting at Grapevine and did not do any bending, stooping, or lifting because of stating his physical disabilities to his employer. He had from two to three men helping him on work he had not required any help to do before his injury. When the work at Grapevine was finished he went to work for Monicle & Powell Construction Company at Freeport, Texas. He also stated his physical condition to the foreman there, and he gave him a job of flagging on draglines that required the use of only his hands and fingers, and when that work was not available, the foreman let him clean bolts and nuts with a wire brush while sitting on a bench in a little house used for that purpose.

Mr. Toler, foreman for Monicle & Powell Construction Company, by deposition corroborated appellant’s testimony of his work for that company. Though they paid him $3.90 per hour, Mr. Toler testified in effect that he did not do the usual tasks of a boiler maker. He said one of the things he noticed most about Mr. Hawkins was that he was unable to stoop or bend down and that he had seen him try to help someone lift a hundred pound weight and he would just have to back off because he could not help lift it. He testified in boiler making work they would try to help a brother union member who was injured.

Arnold Kirk also testified by deposition. He had worked with claimant in 1957 and 1958 on various jobs when he was able to do all the regular work required of his craft. When he worked with him on the Monicle & Powell job, he said Hawkins complained of hurting in his back and loss of sleep and that he was unable to do the usual tasks of a boiler maker.

The testimony also shows Dr. Holmes had claimant fitted for a back brace which was a corset sort of affair with eight steel staves and that he had worn it all the time thereafter up to the date of trial except when driving in an automobile.

To counteract all the above testimony there is only the deposition of Dr. A. Ross Davis of Houston, an orthopedic surgeon with about the same background of training as Dr. Holmes. The only time Dr. Davis examined him was on January 21, 1961. He secured appellant’s history of having been working regularly, made essentially the same tests as Dr. Holmes, and took X rays. He testified:

“A. This patient’s X ray findings are compatible with his age and type of occupation. He has been, employed steadily over the last few months, cmd it has been three and a half months since he has seen a doctor.
“These facts would tend to indicate that the person is not having as much difficulty as he stated he was having.”

The doctor also said it was within reason that claimant had an acute lumbar strain but his opinion was that it had subsided in the interval of time that had elapsed. He said there was no substantiating evidence at the time he examined him of nerve root compression. He further testified in his deposition :

“Q. What conclusion did you reach as to whether, when you saw Mr. Hawkins in June of 1961, he was able to do physical work?
“A. I felt that Mr. Hawkins was able to do physical work at that time.”

Dr. Davis was not asked if claimant was able to do the type physical work of lifting heavy weights, bending, stooping, climbing ladders, and working in awkward positions as required of a boiler maker. He testified that he felt Mr. Hawkins was able to do physical work but he did not say what type of physical work. We think it is also significant that Dr. Davis took into account the fact that Mr. Hawkins had been working regularly and had not been to see a doctor in three and a half months.

The testimony so preponderates against the verdict in this case that under the authorities cited above we are compelled to send the case back for another trial, at which time appellant should not have to be burdened with the definition of “total incapacity” with which the jury was. instructed as a guide in the case heretofore tried but have the benefit of an approved; definition of “Total Incapacity.” Accordingly, the judgment of the trial court is reversed and remanded for another trial.

      . Texas Employers’ Ins. Ass’n v. Ray et al., Tex.Civ.App., 68 S.W.2d 290 (writ refused).

      . Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (Sup.Ct.), cases cited therein and cases cited under Shepards Southwestern Reporter Citations under syl. 1 of the Mallard case.

      . Texas Employers’ Ins. Ass’n v. Waters, Tex.Civ.App., 356 S.W.2d 209.


text:
    PANHANDLE BROADCASTING COMPANY et al., Appellants, v. Ralph D. CERCY, Appellee.
    No. 7188.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 22, 1962.
    Rebearing Denied Dec. 3, 1962.

      Folley, Snodgrass & Calhoun, Amarillo, for appellants.
    Sanderson & Bagley, Amarillo, for appel-lee.
   CHAPMAN, Justice.

This is an appeal by Panhandle Broadcasting Company, a limited partnership, and D. P. Pinkston, Oscar L. Elmore, and Ray Winkler, individually and as general partners of Panhandle Broadcasting Company, Ltd. from a judgment based upon a jury verdict in favor of appellee, Ralph D. Cercy.

At the inception of this suit the company composed of the three named men owned Radio Station KZIP in Amarillo, and Mr. Elmore and Mr. Pinkston, as a partnership, owned radio stations at Lubbock and San Angelo in Texas and at Colorado Springs in Colorado. Appellee, prior to the filing of this suit, had worked at all the stations except the one in San Angelo.

This suit was initiated by appellee to recover for services rendered the company as commercial manager in charge of sales. Cross action was then filed by the Company and also by Mr. Elmore personally against appellee on a promissory note made by ap-pellee and payable to Elmore.

Special issues were submitted by the court to the jury upon the questions considered by the court to have been raised. Some were answered favorable to appellee and some against him. Judgment was rendered by the court in accordance with the findings made by the jury. It is from that judgment appeal is perfected to our court upon sixteen points of error, the first of' which is the alleged error of the trial court" in refusing a third motion for continuance because of the absence of Mr. Pinkston due to the illness of his wife in Colorado Springs.

The testimony of Mr. Pinkston was alleged to be essential both upon the cross action filed against appellee and as a defense, to appellee’s suit. The motion for continuance alleged it could not be secured by deposition.

This court has held that “ * * * appellate courts of this state will not .review a trial court’s action in denying an application for continuance unless the discretion of the lower court has been abused, and the abuse is clearly disclosed.” Mitchell v. Mitchell, Tex.Civ.App., 233 S.W.2d 187 (NWPI). See also Rules 251 and 252 Texas-Rules of Civil Procedure.

In the motion for continuance only generalized statements were made as to what Mr. Pinkston would testify to if present. The motion was made both for Mr. Winkler and Mr. Pinkston, but the former came to the trial and testified, so there is only the question left on this point of the refusal to continue the case because of the absence of Mr. Pinkston. The motion said, “ * * * each of them have within their own knowledge, facts that are necessary to the proper defense of the plaintiff’s claim herein, in that each of said defendants are personally acquainted with and were directly involved through personal contact and correspondence with plaintiff upon all the transactions sued upon by the plaintiff herein; * The motion then stated in effect that Mr. Pinkston is the only one directly and personally involved with appellee arising out of his employment at KPIX in Colorado Springs, Colorado, and that his testimony is absolutely necessary to establish such claim.

As may readily be seen from such motion, it consisted only of conclusions of the pleader. There is not any detailed testimony set out — not one single specific statement as to what Mr. Pinkston would testify to if present whereby the court could determine the materiality of such absent testimony or to enable the adverse party to admit the truth of the same and thus prevent a further delay of the trial. Under such a situation our court speaking through Judge Folley has held the trial court did not abuse its discretion in refusing a motion for continuance. Sanders v. Kansas City Life Ins. Co., Tex.Civ.App., 152 S.W.2d 506 (writ refused). See also Davis v. National Acceptance Co., Tex.Civ.App., 233 S.W.2d 321 (NRE) ; Texas Indemnity Ins. Co. v. Harlan, Tex.Civ.App., 236 S.W.2d 564 (Writ Dismissed); Wilson Finance Co. et al. v. State of Texas, Tex.Civ.App., 342 S.W.2d 117 (NRE).

It has also been held in this state that where the motion does not in every way comply with the rule setting out the requirements in a motion for continuance, the presumption is that the court did not abuse its discretion. Jinks v. Jinks, Tex.Civ.App., 205 S.W.2d 816 (NWH). Accordingly, we believe we have no alternative except to hold that the trial court did not abuse its discretion in overruling the motion for continuance.

The next point asserts error in awarding attorney’s fees to appellee. There was testimony to the effect that $500 would be a fair fee for the services rendered. Appellants did not question the attorney who testified to that amount being .a fair fee and offered no testimony to the contrary. The recovery was sought under Article 2226 Vernon’s Ann.Civ.St. permitting recovery for personal services rendered and labor done. The record shows demand was made and that it was not satisfied within thirty days from the date of demand. Appellee’s contract of employment was based completely upon personal services .rendered to the appellants. He had nothing else to offer them.

Article 2226 provides that if the claim for services has not been satisfied at the expiration of thirty days notice and he should later obtain judgment for any amount thereof, he may also recover a reasonable amount as an attorney’s fees.

It has been held that the statute is broad enough to include claims for every service rendered which involved mental or physical effort. Mitchell v. M. M. M., Inc., Tex.Civ. App., 261 S.W.2d 472 (reversed on other grounds, 153 Tex. 227, 265 S.W.2d 584).

It was undisputed that part of the contract of employment provided if appellee was discharged without cause before the end of the year for which he was employed, he would be entitled to $300 per month for the remainder of the year. The jury held appellee was discharged without cause so the penalty provided in the contract would still constitute payment for services, part of the incentive to enter into the contract for personal services. Additional to the $500 attorney’s fees, recovery was made for $1,952.82. Our Supreme Court has held that it is the province of the jury to determine what is a reasonable attorney’s fee, and that they may take into consideration the facts before them in relation to the services rendered, as well as the estimates made by the testimony of the attorney. Gulf Paving Co. v. Lofstedt et al., 144 Tex. 17, 188 S.W.2d 155. We hold the amount assessed by the jury was reasonable for the services rendered when considered in connection with the amount involved and the amount of recovery. Accordingly, points two and three are overruled.

Points of error four and five assert there was no evidence and alternatively the jury finding was against the great weight and preponderance of the evidence on the special issue inquiring if the $200 paid to appellee shortly after his employment at Station KZIP was to be repaid.

Appellee testified he was compelled to move from Colorado Springs to Amarillo upon two days notice when he went to work at KZIP and had to live in a motel with his family for awhile. He testified Mr. Winkler told him they knew he had been out a lot of expense and “ * * * we will take care of this incidental expense you have been out.” We hold such testimony was sufficient upon which the jury could base their answer. Mr. Winkler denied it but it was within the province of the jury to judge the credibility of the witnesses and the weight to be given to their testimony. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561. Therefore, we cannot say the answer was against the great weight and preponderance of the evidence.

The exact same contention is made in points six and seven to the jury’s answer to special issue four inquiring what amount appellee owed to Mr. Elmore on the note in the original sum of $800 introduced into evidence. We believe these points are well taken. The record shows $600 was paid on the note in cash and $121.85 for the sale of an automobile, making a total of $721.85 paid on the note. The record shows $134.99 is still due on the principal and interest. There is not any probative evidence to overcome such testimony. At least the jury answer is contrary to the great weight and preponderance of the evidence.

The same attack as that made on special issues three and four is made on special issues five and six inquiring if the parties agreed that the moving expenses from Lubbock to Colorado Springs and from Colorado Springs to Amarillo were to be reimbursed. The jury made a negative finding to the two issues.

There is direct evidence by appellee that appellants agreed to pay his moving expenses to Amarillo, and it is amply sufficient to support the answer by the jury in that regard. We have searched carefully through the record and have been unable to find any probative evidence to support the negative finding by the jury to the issue inquiring if the parties agreed appellee was to reimburse appellants for the expense of moving from Lubbock to Colorado Springs. That amount was $386.29. There is no evidence to support the jury finding. There is sufficient evidence to the effect the amount was owing. It was carried on the books as an item to-be paid. There being no evidence as a matter of law to support the issue, the point must be sustained.

The next points we reach for discussion are appellants’ contentions to the effect that the jury’s answer to special issue eight is not supported by any evidence and that alternatively it is contrary to the great weight and preponderance of the evidence. That issue inquires if appellee was discharged from his employment at Radio Station KZIP for cause. The jury answered negatively. Appellee testified as follows:

“Q. Your duties there under your contract were to have been what?
“A. I was sales manager, coordinating sales, directing the sales efforts,, and managed the sales crew of the radio station.
“Q. And did you perform those duties-in accordance with your contrac-tural agreement?.
“A. I certainly did.
“Q. You performed them in accordance with your contractural agreement ?
“A. I certainly did.”

The tenor of the testimony to the contrary is that appellee was not getting the results in business appellants thought he should and not collecting as well as they wanted. This created a fact issue as to whether or not he was discharged for cause, which was resolved in favor of appellee. It was the prerogative of the jury to judge the credibility of witnesses and the weight to be given to their testimony and to resolve the conflicts and inconsistencies. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561.

Both the no evidence and great weight and preponderance of the evidence rules are urged to the jury’s answer to special issue nine. That issue inquires if there was an overpayment of salary received by appellee while he was employed at Radio Station KPIK in Colorado Springs. The testimony favorable to appellee is as follows:

“Q. Ask you whether or not on every pay day you wrote yourself a check ?
“A. I did, yes, sir.
“Q. In what amount did you make that check?
“A. I made a check on each pay period, first and fifteenth, for $335.00, and on the first of each month I drew a hundred dollar car allowance, which came to a total of of $770.00.
“Q. And was that the figure that had been agreed you were to receive?
“A. Yes, agreed upon as a guarantee.”

He further testified when he noticed appellants were carrying withdrawals on their books against him, he called Mr. Pinkston about it and “ * * * he said not to worry about it, that it was carried on the books for tax purposes”; that he continued to draw the $770 each month and it was brought up again by Mr. Elmore, and Mr. Pinkston said, “Well, we will forget about this; Cercy and I have talked about it and we understand about it and we will forget about it.”

Mr. Elmore testified contrary to the evidence just related but the jury resolved the issue in favor of appellee. It has been held that a jury may believe one witness and dis others and may resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. Muro v. Houston Fire & Casualty Insurance Company, Tex.Civ. App., 329 S.W.2d 326 (NRE); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563. Under these authorities and the authorities there cited, we do not believe we would be authorized in holding the issue was against the great weight and preponderance of the evidence.

The last point urges reversible error in the jury argument of appellee’s counsel.

There is no formal bill of exception in the record showing the alleged argument, nothing in the statement of facts showing it, nor is there any place in the record where the court certifies to the correctness of the complaint. Under this state of the record there is nothing for us to review. 4 T.J.2d Appeal and Error p. 33, sec. 500 and the cases there cited.

The record shows appellee still owes $134.99 on the note inquired about in special issue No. 4 and that he still owes for the moving expenses advanced to him when he moved from Lubbock to Colorado Springs in the amount of $386.29.

Therefore, this case is reversed and remanded unless within fourteen days from the date of this opinion Ralph D. Cercy files a remittitur in the amount of $521.28. In the event such remittitur is filed, the judgment of the trial court will be reformed to conform with the above conclusion and as reformed, affirmed.

ON MOTION FOR REHEARING

A study of Appellants’ Motion for Rehearing has led us to believe we were in error in holding that the $1,500 recovery for five months remaining on the contract for personal services was within the category for which appellee was entitled to a claim for attorneys’ fees for personal services rendered under Article 2226 V.A.T.S. in bringing suit upon the claim for $1,500.

Statutes authorizing recovery of attorneys’ fees are penal in character and are to be strictly construed. Van Zandt et ux. v. Fort Worth Press et al., Tex., 359 S.W.2d 893.

When the above named article is construed strictly, the $1,500 constituted a recovery for personal services not rendered rather than personal services rendered. The statute says for “personal services rendered” (emphases ours).

The Supreme Court through Chief Justice Calvert in the case last above cited said:

“Perhaps every successful litigant should be permitted to recover his attorney fees from the opposite party. But whether that policy would be wise is for the Legislature, not the courts, to decide. Apparently the Legislature has not thought it wise. But however that may be, the Legislature has not authorized a recovery of-attorney fees in suits on claims such as that involved in this case.”

Under a strict construction of the statute here involved we believe we have to say that the Legislature has not authorized recovery of attorney fees in a suit on a claim such as the $1,500 item here under consideration. We still believe we are correct in holding that the $452.82 item would come within the statute. The personal services rendered was that of a commercial manager. The commissions, regardless of the individual who sold the advertising that made possible the commissions, constituted income from appellee’s personal services rendered as commercial manager. Appellants’ pleading denied they owed appellee anything, so the suit had to be filed and prosecuted in order to recover. Because of the aggressive manner in which it was contested and all the cross actions appellee had to overcome in order to recover, we believe an attorneys’ fee of half that recovery was reasonable.

Therefore, the case is reversed and remanded unless within seven days from the date of this announcement Ralph D. Cercy files a remittitur of $273.59 in addition to the remittitur heretofore filed. In the event such remittitur is filed, the judgment of the trial court will be reformed to conform with the above conclusion and as reformed, affirmed.


author: BOYD, Justice.

text:
    George A. SMOOT et al., Appellants, v. Joseph Garland WOODS, Appellee.
    No. 16374.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 28, 1962.
    Rehearing Denied Jan. 25, 1963.

      Smoot & Smoot and Elmer H. Parish, Wichita Falls, for appellant George A. Smoot.
    Elmer H. Parish, Wichita Falls, for appellant Ray G. Jones.
    Nelson, Montgomery & Robertson and Allen D. Montgomery, Wichita Falls, for appellee.
   BOYD, Justice.

Joseph Garland Woods sued George A. Smoot and Ray G. Jones in trespass to try title to %2nds of the minerals in and under four tracts of land in Archer County, and for damages. Trial was to the court, and from a judgment in favor of the plaintiff, the defendants appeal.

The suit involves mineral interests in two tracts in the Harvey Cox Survey and several tracts out of two H & T C RR Co. Surveys. The judgment awarded appellee recovery against appellant Smoot for title to an undivided ⅛ of the usual ⅛ royalty in the minerals in the two tracts in the Cox Survey, and %2nds of the usual ⅛ royalty in the minerals in tracts in the two H & T C RR Co. Surveys, together with the executive rights to execute mineral leases on and to receive bonuses and delay rentals from, together with any overriding royalty that may be reserved in, said leases, covering an undivided 3%2nds interest in a 34 acre tract in Section 16, H & T C RR Co. Survey. A money judgment in the amount of $4,743.88 was awarded appellee against appellant Smoot for money received by him on account of royalties. In addition to the recoveries mentioned, appellee was granted judgment against appellant Smoot for that portion of the money being held in suspense by Texaco, Inc., that is attributable to ⅛ of the usual ⅛ royalty in the minerals produced from the Cox Survey, and for that portion of the money held in suspense by Mobil Oil Company which is attributable to %2nds of royalty in the tracts other than the Cox Survey. Recovery was awarded to appellee against appellant Jones for %2nds of the usual ⅛ royalty in the tracts in the Cox Survey; for $138.36, and for that portion of the money held in Suspense from minerals produced from the Cox Survey which is attributable to %2nds of ⅛ royalty.

It was stipulated that H. H. Taylor and his wife, Minnie Taylor, were the common source of title. At the time of her death, Minnie Taylor had become and was the wife of appellee. By the provisions of her will she devised all her property to appellee. It is not claimed that either appellant has acquired from appellee any interest in the minerals involved except by estoppel, limitations and laches, later to be considered.

Without detailing the documentary evidence, we find that Minnie Taylor Woods at the time of her death owned all the interests claimed by the appellee in this suit.

In addition to pleas of not guilty, the two, three, five and ten years statutes of limitations, laches, and stale demand, appellant Smoot claims title to the interests recovered by appellee by virtue of a Sheriff’s deed following foreclosure of an attachment lien.

On July 19, 1941, Packard Wichita Falls, Inc., recovered judgment against Minnie Taylor, at that time known as Mary Schoenberg, in the amount of $363.08, with foreclosure of an attachment lien. The service in the suit was by publication, and there was no answer or appearance by the defendant. An attachment had been issued, directed to the Sheriff of Archer County, commanding him to attach “so much of the property of Mary Schoenberg * * * as shall be of value sufficient to make the sum of Three Hundred Fifty & No/100 ($350.-00) DOLLARS and the probable costs of suit * * The Sheriff’s return stated that the writ was executed by levying upon as the property of the defendant “all of the following described property, situated in ■- County, Texas, to-wit: The said Minnie Taylor retains a ½2 of all the oil, gas, and other minerals in and under the following tracts of land.” There followed a description of the land involved in this suit. The judgment recited that an attachment had been levied on “An undivided interest of one-thirty second (⅛2) of all oil, gas and other minerals in and under all that tract and parcel of land situated in Archer County, Texas, being a part of the Harvey Cox Survey, patented to the heirs of Harvey Cox by Patent No. 118, Vol. No. 115, Cert. No. 318, Abst. No. 67, said land being described as follows,” and then followed a description of the four tracts involved in the suit, and the attachment lien as it existed on March 5, 1941, was foreclosed and the property was ordered sold to satisfy the judgment as under execution.

Appellant Smoot was the purchaser at the foreclosure sale, and the Sheriff’s deed described the property sold as “all the estate, right, title and interest which the said Mary Schoenberg, also known as Minnie Schoenberg and Minnie Taylor had on the 26th day of February, A.D. 1941, or any time afterwards, of, in and to the following described premises, as described in said order of sale, viz.: An undivided interest of one-thirty second (⅛2) of all oil, gas and other minerals in and under all that tract and parcel of land situated in Archer County, Texas, being a part of the Harvey Cox Survey, patented to the heirs of Harvey Cox by Patent No. 118, Vol. No. 115, Cert. No. 318, Abst. No. 67, said land being described as follows:” and there followed a description of the four tracts involved in this suit.

We are of the opinion that the Sheriffs deed did not convey more interest than he had theretofore levied upon. That interest was described as “⅜2 of all the oil, gas and other minerals in and under” the four tracts of land. It is true that the foreclosure judgment ordered the property levied, upon sold “as under execution,” and that Article 3816, Vernon’s Ann.Tex.Civ.St., directs the officer making a sale under execution to “execute and deliver to the purchaser a conveyance of all the right, title, interest and claim which the defendant in execution had in and to the property sold.” Article 301, V.A.T.S., provides that “The land so attached may be sold under execution after judgment, and the sale thereof shall vest in the purchaser all the estate of the defendant in attachment.” It has been held, however, that property not levied upon should not be sold under execution. The lien attached at the time of the endorsement on the writ, and did not attach to property not levied upon. Riordan v. Britton, 69 Tex. 198, 7 S.W. 50. It is our opinion that appellant Smoot, as grantee in the Sheriff’s deed, acquired title to no more than ⅜2 of the minerals under the four tracts, of none of which the judgment deprives him.

Appellant Jones was the owner of the surface and some of the minerals under land in the Cox Survey. He filed a plea of not guilty, and pleaded the two, three, five and ten years statutes of limitations, as well as laches and stale demand.

The two years statute of limitation, pleaded by both appellants, applies to money received by them from oil runs, and since there was no recovery by appellee for those proceeds except for the last two years, no point is brought forward as to that statute of limitation.

Clearly, the case is not governed by the three years statute. There is no showing that either appellant held under title or color of title as defined by Article 5508, V.A.T.S.

Where minerals have been severed, the surface owner cannot claim adverse possession of the minerals by possession of the surface, but he must take actual possession of the minerals for the statutory period. Rio Bravo Oil Co. v. McEntire, 128 Tex. 124, 95 S.W.2d 381; Carminati v. Fenoglio Tex.Civ.App., 267 S.W.2d 449 ; 31-A Tex. Jur., p. 42, § 15. Conceding that production of minerals had continued for more than five years, we still are of the opinion that the five years statute is not applicable because neither appellant held under “a deed or deeds duly registered” covering the interest awarded by the judgment to appellee. There must be a deed to the interest in dispute, for one cannot claim under the five years statute more than his deed purports to convey. Martinez v. Bruni, Tex.Com. App., 235 S.W. 549, and authorities there cited.

The ten years statute is not applicable because there had been no production of minerals for that length of time.

One point for reversal is that ap-pellee is estopped to claim the interest sued for because as executor of his deceased wife’s estate he swore that she had no interest in the property involved when he signed the inventory stating that she had no separate estate, and no community estate in Texas, “that have come to my knowledge.” Appellants cite no authority, and we have found none, holding that a failure to list property of a decedent in the inventory has the effect of removing such property from the estate. In Republic Nat. Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39, the Supreme Court said: “ * * * the recitals of inventory and appraisement by the terms of Article 3424, R.C.S., 1925 as amended, are not conclusive on the nature or extent of the deceased’s estate.” In Pryor v. Krause, Tex.Civ.App., 168 S.W. 498, it was held that even though an executor listed property in the inventory as the property of the deceased, he was not es-topped from claiming it as his own.

We do not believe the defense of laches and stale demand has been established. In Montgomery v. Trueheart, Tex.Civ. App., 146 S.W. 284, error refused, the court said: ‘It is now well settled that, when the title asserted by a plaintiff is sufficient to sustain an action of trespass to try title, it matters not whether such title be legal or equitable, the defense of stale demand is not available, and the plaintiff’s right of recovery in such case is barred only when the defendant shows adverse possession under the statutes of limitations of actions for the recovery of land. Hardy Oil Co. v. Burnham, [58 Tex.Civ.App. 285], 124 S.W. [221], 223; Duren v. [Houston & T. C] Railway Co., 86 Tex. 287, 24 S.W. 258; Lowry v. McDaniel, [58 Tex.Civ.App.424], 124 S.W. [710], 711; Lyster v. Leighton, 36 Tex.Civ.App. 62, 81 S.W. 1033.’”

A defendant cannot rely on the doctrine of laches where the plaintiff’s right is based on a legal title. 41-A Tex.Jur., p. 726, § 178.

We have considered all of appellants’ points and do not believe that error is reflected.

The judgment is affirmed.