Van Zandt v. Fort Worth Press

• Court: Texas Supreme Court
• Writing for the Court: CALVERT
• Citation: Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex. 1962)
• Decision Date: 25 July 1962
• Docket Number: No. A-8897,A-8897
• Parties: Sidney VAN ZANDT et ux., Petitioners, v. FORT WORTH PRESS et al., Respondents.

Page 893

359 S.W.2d 893

Sidney VAN ZANDT et ux., Petitioners, v. FORT WORTH PRESS et al., Respondents.

No. A-8897.

Supreme Court of Texas.

July 25, 1962.

Rehearings Denied Oct. 3, 1962.

Stone, Parker, Snakard, Friedman & Brown, John G. Street, Jr., and James A. McMullen, III, with above firm, Fort Worth, for petitioner.

Morgan & Shropshire, Irvin W. Shelman, Fort Worth, for respondent.

CALVERT, Chief Justice.

Ft. Worth Press recovered a trial court judgment against Sidney Van Zandt and his wife and others for debt in the sum of $1,085.45, and for attorney fees in the sum of $375.00. The Van Zandts appealed, and the judgment was affirmed by the Court of Civil Appeals, 353 S.W.2d 95. We granted writ of error to review the holding of the Court of Civil Appeals that Article 2226, Vernon's Annotated Texas Statutes, authorizes the judgement for attorney fees.

Article 2226 authorizes a recovery of attorney fess by 'Any person having a valid claim against a person or corporation for personal services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded upon a sworn account or accounts, * * *.' The Article thus clearly itemizes seven, and only seven, classes of claims which can form a basis for an award of attorney fees. Unless the claim made the basis of respondent's recovery falls within one or more of the seven classes, the judgment for attorney fees must be reversed.

Respondent's suit was for $1,014.89 for classified advertising and $70.56 for display advertising. Attached to the trial court petition as exhibits are two sworn itemized accounts. The first exhibit is an itemized account for classified advertising. It shows the dates of insertions, the number of lines of each insertion and the charges made therefor, from August 9, 1959, through October 25, 1959. Separate charges are shown for each day classified advertising was published. Analysis of the itemized account shows that charges at varying rates were made for 6975 lines of classified advertising and that the charges thus made total $1,014.89. The second exhibit is an itemized account for display advertising. It shows six insertions of three-inch display advertising at $3.92 per inch for a total charge of $70.56. Respondent asserts that the claim thus analyzed is a claim 'upon a sworn account' or is a claim for 'personal services rendered' and 'labor done' within the meaning of the statute.

We have heretofore held that in order for a claim to be founded 'upon a sworn account or accounts' within the meaning of the statute the account must be one 'in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other.' Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78; Guay v. Schneider, Bernet & Hickman, Inc., 161 Tex. 560, 344 S.W.2d 429, refusing writ of error, no reversible error, in the same case, Tex.Civ.App., 341 S.W.2d 461; Langdeau v. Bouknight, Tex., 344 S.W.2d 435. Respondent's claim is not founded upon a 'sworn account or accounts' of transactions in which there were sales on one side and purchases on the other, whereby title to personal property passed from respondent to petitioners. Therefore, it is not a claim 'upon a sworn account' within

Is respondent's claim one for 'personal

Is claim one for 'personal services rendered'? The Court of Civil Appeals affirmed the judgment for attorney fees on the theory that it is. We hold that it is not.

Statutes authorizing a recovery of attorney fees are penal in character and are to be strictly construed. Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332, 333; Washington Fidelity Nat. Ins. Co. v. Williams, Tex.Com.App., 49 S.W.2d 1093, 1094. When strictly construed, the words 'personal services' are not as broad and allencompassing as the word 'services'.

Webster's Third New International Dictionary gives a general definition of 'service' as 'action or use that furthers some end or purpose: conduct or performance that assists or benefits someone or something: deeds useful or instrumental toward some object.' The same source defines 'personal services' thusly: 'economic service involving the either intellectual or manual personal labor of the server rather than a salable product of his skill (physicians, architects, and garbage collectors equally sell personal services).' In construing the state's Unemployment Compensation Act the Supreme Court of Utah had occasion in Creameries of America v. Industrial Commission, 98 Utah 571, 102 P.2d 300, 304, to differentiate 'services' and 'personal services'. The court said:

'In ordinary usage the term 'services' has a rather broad and general meaning. It includes generally any act performed for the benefit of another under some arrangement or agreement whereby such act was to have been performed. The general definition of 'service' as given in Webster's New International Dictionary is 'performance of labor for the benefit of...