Brown v. American Finance Co.

• Decision Date: 19 July 1968
• Docket Number: No. 17109,17109
• Citation: Brown v. American Finance Co., 432 S.W.2d 564 (Tex. Ct. App. 1968)
• Parties: William G. BROWN, Appellant, v. AMERICAN FINANCE CO. et al., Appellees. . Dallas
• Court: Texas Civil Court of Appeals

Page 564

432 S.W.2d 564

William G. BROWN, Appellant, v. AMERICAN FINANCE CO. et al., Appellees.

No. 17109.

Court of Civil Appeals of Texas Dallas.

July 19, 1968.

Rehearing Denied Sept. 27, 1968.

Donald W. Keck, of Fritz & Vinson, Dallas, for appellant.

W. R. Sessions, of Sessions & Sessions, Dallas, for appellees.

DIXON, Chief Justice.

William G. Brown seeks to appeal from an order of a district court granting a motion for new trial. In the alternative he asks this court to grant a writ of mandamus directing the trial judge to set aside the order granting a new trial and to reinstate a judgment in Brown's favor.

On November 25, 1959 Brown filed suit against thirteen loan companies from whom he had borrowed small sums of money. He sought judgment for double the amount of alleged usurious interest paid and for actual and exemplary damages proximately caused to his wife and himself by unreasonable collection efforts.

Before the case came on for trial Brown made money settlements with eleven of the companies and they were dismissed from the suit. The only two defendants with which he did not make cash settlements are City Guaranty Company and Safeway Finance Company. Both of the above named companies are owned by S. M. Connell.

At the trial thirty-one special issues or questions were submitted to a jury, said issues to be answered as the jury found from a preponderance of the evidence.

The jury found that City Guaranty Company, through its agents, servants and employees, made unreasonable collection efforts against William Brown, which collection efforts were made with reckless disregard of his health and welfare; and said collection efforts proximately caused Brown to suffer mental or emotional and physical illness to his damage in the amount of $500; caused a loss of employment to his damage in the amount of $500; and caused a reduction in wages to his damage in the amount of $1,600, a total of actual damages of $2,600. The jury also made a finding of $5,000 as exemplary damages. This made a total of actual and exemplary damages of $7,600 found by the jury against City Guaranty Company.

However the jury found that City Guaranty Company had not made unreasonable collection efforts in regard to Brown's wife, Mary Brown; and that Safeway Finance Company had not made unreasonable collection efforts either, as to Brown himself or as to his wife, Mary Brown.

In rendering judgment the court found that Brown had already received the sum of $1,100 in settlements with three other sets of defendants, who had been dismissed as defendants after said settlements were consummated. The court then concluded that as one of four joint tort-feasors S. M. Connell doing business as City Guaranty Company should be assessed only one-fourth of the total actual damages of $2,600. This made $650 as City Guaranty Company's part of the actual damage, which together with $5,000 as exemplary damages makes a tital of $5,650 assessed as damages against City Guaranty Company.

The court also rendered judgment against S. M. Connell doing business as Safeway Finance Company for the sum of $74.80, which was double the amount of usury found to have been paid to Safeway by Brown.

Thus a judgment in the grand total amount of $5,724.80 was rendered against S. M. Connell in connection with the operation of both his loan companies.

On July 27, 1967 the trial judge indicated to the attorney for Brown and to the attorney for Connell in the presence of each other that though he was signing the judgment he felt that $5,000 was too high a figure for exemplary damages and he encouraged plaintiff's attorney to work out something reasonable with defendant's attorney. The judge stated that he felt $600 was a reasonable exemplary damage figure.

On August 5, 1967 S. M. Connell filed a motion for new trial alleging grounds as follows: (1) the findings of the jury are not supported by the evidence except the finding that defendant was a broker and not a lender; (2) the undisputed evidence as to payments demonstrates that there was no basis for the judgment of $74.80 usury penalty ; (3) there is no evidence, or at least there is insufficient evidence to support the $500 verdict as damages for lost wages, which by pleading and evidence could be no more than $326.95; (4) there is no basis in the pleadings or the evidence to support the award of $5,000 as exemplary damages, the said amount being excessive and disproportionate to the amount of actual damages; (5) the court erred in overruling defendant's objection to the special issues submitted; (6) the court should have disallowed any recovery for actual damages and should have found that plaintiff's cause of action, if any, was fully settled by payments of co-defendants who were dismissed from the suit, and without actual damages there can be no recovery for exemplary damages.

On September 6, 1967 plaintiff filed a motion asking the judge to disqualify himself from any further participation in the cause of action, and that 'whichever Judge hears the Motion for New Trial, set out fully and completely each ground for ordering a new trial, if any, * * *.' The grounds alleged in the motion were: (1) the statement by the judge in chambers on July 27, 1967; (2) an inquiry by the judge on September 5, 1967 asking plaintiff's attorney whether he had 'worked out' anything with defendant's counsel; (3) a statement made by defendant's counsel on September 5, 1967 to plaintiff's counsel that the judge had already indicated to plaintiff's counsel that he intended to grant a new trial; and (4) the appointment by the judge of defendant's counsel to act as attorney in a court of inquiry scheduled to be held September 5, 1967.

In orders signed November 14, 1967 the judge overruled the motion to disqualify and to set out each ground for ordering a new trial; and sustained defendant's motion for new trial.

OPINION IN RE APPEAL.

It has long been the rule in this state that an order of a trial court granting a motion for new trial, being an interlocutory order, is not appealable. ¹ Dial v. Collins et al., 40 Tex. 367, 368 (1874); Lynn et al. v. Hanna, 116 Tex. 652, 296 S.W. 280 (1927) ('The Court of Civil Appeals and this court are without power to review it.'); Plummer et ux v. Van Arsdell et al., 117 Tex. 200, 299 S.W. 869 (1927) (Tex.Com.App. opinion adopted) (Party has no constitutional right to appeal from order granting new trial); Spikes v. Smith, 386 S.W.2d 346 (Tex.Civ.App., Corpus Christi 1965) (Mandamus also denied by Sup.Ct.); Harang v. Aetna Life Ins. Co., 400 S.W.2d 810, 815 (Tex.Civ.App., Houston 1966, writ ref'd n.r.e.). It is also the rule in most other jurisdictions, including the Federal courts. Bigart v. goodyear Tire & Rubber Co., 361 F.2d 317 (2d Cir. 1966); Peterson v. Moore, 254 F.2d 853 (3rd Cir. 1958); Ford Motor Co. v. Busam Motor Sales, Inc., 185 F.2d 531 (6th Cir. 1950); 4 C.J.S. Appeal and Error §§ 238, 246; 4 Am.Jur.2d 638. See also cases cited hereinafter in connection with the application for writ of mandamus.

Appellant asserts that the motion for new trial failed as a matter of law to set forth a sound ground for new trial. Without agreeing with that contention, we simply point out that the trial court is not bound by the motion filed by a party. He may grant a new trial on his own motion. He does not have to give his reasons for granting a new trial. Harang v. Aetna Life Ins. Co., 400 S.W.2d 810, 815 (Tex.Civ.App., Houston 1966, writ ref'd n.r.e.); Spikes v. Smith, 386 S.W.2d 346 (Tex.Civ.App., Corpus Christi 1965) (Mandamus also denied by Sup.Ct.); Equitable Life Assur. Soc. v. Murdock, 219 S.W.2d 159 (Tex.Civ.App., El Paso 1949, writ ref'd n.r.e.).

Appellant also asserts that after the motion was filed the court became disqualified as a matter of law from acting on it, therefore the order granting the motion was null and void. We do not agree.

Appellant makes much of the statement made by the trial judge in the presence of both attorneys that he, the judge, felt that the $5,000 award as exemplary damages was too high and suggested that the attorneys endeavor to 'work out something reasonable'--that he felt $600 was a reasonable figure for exemplary damages.

The statement in effect informed the attorneys that the judge, in the interest of justice, was willing to let a judgment for appellant stand if the amount of the recovery were reduced. He encouraged them to 'work out' a judgment which he could approve. Such an admonition to...