Bank of North America v. Bell
| Decision Date | 28 March 1973 |
| Docket Number | No. 732,732 |
| Citation | 493 S.W.2d 633 |
| Parties | BANK OF NORTH AMERICA, Appellant, v. Dudley BELL, Jr., Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Donald W. Callahan, Frank C. Collins, Jr., Callahan, Mulvihill & Collins, Fred A. Collins, Houston (on appeal only), for appellant.
James H. Campbell, Quinnan H. Hodges, Houston (on appeal only), for appellee.
This is an unreasonable collection efforts case.
In answer to special issues the jury found: (1) defendant made unreasonable collection efforts; (2) such efforts proximately caused plaintiff mental pain and physical illness; (3) actual damages; (4) medical expenses; (5) future medical expenses; (6) the unreasonable collection efforts were actuated by malice; and (7) exemplary damages. On the only defensive issue submitted or requested the jury failed to find that appellee had failed to obtain insurance on the boat in compliance with the security agreement. The trial court on defendant's motion disregarded the jury's findings of $1,000 on future medical expenses and the plaintiff agreed to a reduction of past medical expenses to $195 in disregard of the jury's finding of $1,000. Judgment was entered for the plaintiff for $15,000 actual damages, $50,000 exemplary damages, $195.00 past medical and $200 property damage.
From this judgment defendant duly perfected this appeal.
Appellant complains alternatively that the jury's finding of unreasonable collection efforts was against the great weight of evidence or supported by insufficient evidence.
Appellee Bell (Bell) purchased a boat and financed his purchase through the appellant Bank of North America (Bank). The note was in the amount of $7,542.00 and was secured by the boat in question. The first payment on the note was due July 1, 1968. Before this first payment became due the executive vice-president of Bank wrote to the plaintiff that '(b)ecause you seem to be unhappy with the way the loan was drawn up' the Bank was accelerating his loan and demanding full payment within ten days. Aside from the unsupported statement in the letter there is no evidence that in fact Bell was unhappy 'with the way the loan was drawn up'. Before the first payment became due the Bank instituted suit on June 26 against Bell for title and possession of the boat and undertook to sequester same .
Bell's fiancee was not involved in the transaction personally. However, the executive vice-president of Bank undertook to contact her and her employer concerning the matter. She was called in by her employer under circumstances that would be reasonably calculated to embarrass her and Bell. This same officer of the Bank called her at home as well as at work. He visited her on a weekend and in the presence of her friends with whom she was playing cards inquired about Bell, his whereabouts and that of the boat in question. He threatened her with penalties involved for concealing evidence. He contacted Bell and his financee on numerous occasions. He started a course of phone calls, contacts and threats about the boat. He called Bell at his home and at his fiancee's residence. In one ten day period he made 20 to 23 phone calls to Bell. He contacted the apartment manager where Bell lived. He called friends of Bell and he called the boat company. He visited the apartment managers of the apartments involved and sent and accompanied repossessors searching for the boat. He threatened Bell that if he did not give up the boat he would file criminal charges and place him in jail.
In the suit instituted before the first payment on the note was due the Bank incorrectly claimed that appellee had failed to provide insurance coverage as required. As a matter of fact the applicable insurance was in force at all material times and had been taken out with an insurance agent who was a director of Bank.
An examination of other wrongful collection cases where recovery has been allowed indicates that conduct constituting unreasonable collection efforts may vary from case to case. Having reviewed all the evidence pursuant to the mandate of the Supreme Court of Texas of In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1952) we overrule appellant's contentions that the answer of the jury to special issue no. 1 was against the overwhelming weight and preponderance of the evidence and supported by insufficient evidence .
Appellant's second point of error complains of the jury's finding of 'malice' 'because such answer is not supported by the evidence, or alternatively is against the overwhelming weight and preponderance of the evidence and there is insufficient evidence to support the jury's answer to this special issue.'
A leading case in connection with 'malice' is the Supreme Court case of Ware v. Paxton, 359 S.W.2d 897 (Tex.Sup.1962). The Supreme Court there held that '(w)here the collection methods of a lender cease merely being unreasonable and take on the character of malicious and wanton conduct is a matter of Degree.' (emphasis added). In the case at hand the executive vice-president of Bank informed Bell that the Bank's conduct was motivated by the fact that someone at the Bank was 'mad' at him. Since the collection campaign began before any default of Bell no other explanation of the conduct is apparent. Bank did not undertake to deny this testimony or make any other explanation of the procedures adopted. The failure of a litigant to rebut the other party's version of an occurrence when he has the means available to do so normally justifies an inference that such evidence would not have strengthened his case. American General Ins . Co. v. Nance, 60 S.W.2d 280 (Tex.Civ.App., Dallas 1933, writ ref'd). As already recounted, the Bank made visits to the home of Bell, his fiancee and apartment managers; confronted and embarrassed the lady in front of her social guests; made 20 or more telephone calls to Bell in a 10-day period; and threatened him with criminal charges. Insofar as the second point of error may be construed as a 'no-evidence' it is overruled. Also, in reviewing all of the evidence in compliance with the mandate of the Supreme Court in the exercise of our fact finding jurisdiction we also find that the answer to special issue number 6 was not against the preponderance of the evidence or insufficiently supported. In re King's Estate, supra.
Appellant's third point of error presents the contention that the exemplary damages award is excessive. Significantly appellant makes no complaint about the jury's finding of actual damages. While appellant does contend that the $50,000 exemplary finding bears no reasonable relation to the actual damages found we are unable to agree with this contention. The ratio of the award of exemplary damages...
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