Diaz v. Cantu, 1376
| Decision Date | 31 May 1979 |
| Docket Number | No. 1376,1376 |
| Citation | 586 S.W.2d 576 |
| Parties | David DIAZ, Appellant, v. Juanita O. CANTU, Appellee. |
| Court | Texas Court of Appeals |
This is a suit for conversion. Juanita O. Cantu sued David Diaz and his wife for damages as a result of alleged conversions of: 1) $2,000.00 cash from a safety deposit box; 2) a certificate of deposit in the amount of $2,373.59; and 3) the proceeds of the payment of $4,012.70 on an insurance claim. Trial was before a jury. Judgment was signed on February 10, 1978, wherein the plaintiff, Juanita O. Cantu recovered of David Diaz, $4,012.70 as actual damages for conversion of the aforesaid insurance proceeds and $10,000.00 as exemplary damages. It was further decreed that the plaintiff take nothing in her suit against Mrs. Diaz. David Diaz has duly perfected an appeal from the judgment.
Diaz, in his answer to Cantu's petition, in addition to other defenses, denied that he took the $2,000.00 in cash. He further alleged, by way of affirmative defense, that the aforesaid sums of $2,373.59 and $4,012.70 were given to him by Cantu in gratitude and appreciation for aid, assistance and the many kindnesses which he had extended to her in days gone by.
Diaz first contends that there is no evidence to support the answers to Special Issues 3 and 13, wherein the jury found that Diaz "converted to his own use the proceeds received by Juanita Cantu from the insurance company" (No. 3); and that Cantu did not make a gift of such proceeds "to the members of the Diaz family individually or collectively" (No. 13). In the alternative, it is claimed that the evidence is factually insufficient to support such answers.
In disposing of the "no evidence" and "factually insufficient evidence" points, we consider all of the evidence and adhere to the well-established rules set forth in Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965) and In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Cantu became disabled in 1969. She was 56 or 57 years of age at that time. As a result of such disability, she was awarded $1,704.00 by the Social Security Administration. Her disability forced her to quit her regular job because it required her to be on her feet for long and uninterrupted periods of time. However, she did perform odd jobs subsequent to her disability until late summer of 1975. These jobs consisted in the main of yard work such as mowing laws, edging borders, trimming shrubbery, and the like. Between July 13, 1975, and September 13, 1975, one of her legs was amputated. At that time she was the insured under a hospitalization and medical insurance policy. On January 2, 1976, a check in the amount of $4,012.70, payable to her order, was delivered to Diaz by a duly authorized representative of the insurance company. This check represented a complete settlement with the company for Cantu's loss of her leg. Diaz delivered the check to Cantu, who endorsed it; Diaz deposited the proceeds thereof "in a certificate of savings in the State Bank of Kingsville."
It is undisputed that Diaz subsequently used the proceeds from the insurance company's check to purchase property in his own name for his own exclusive use and benefit. According to Diaz, Cantu, when she endorsed the insurance company check, told him:
Diaz contends that the allegation of conversion of the insurance proceeds is refuted, and his defense of "gift" is established, by his own testimony and the testimony of witnesses called by him, who testified substantially, as follows: he and Cantu had been friends for many years; Cantu referred to Diaz and his family as "her folks" ; prior to the hospitalization which resulted in the amputation of Cantu's leg, Diaz, or members of his family, took Cantu to Galveston for medical examinations on several occasions; Cantu went to live permanently in the home of Diaz in March, 1975, where she remained until November, 1976; during the aforesaid period of time, Diaz and members of his family took care of her by cooking for her, laundering her clothes, running errands for her and furnishing her with living quarters, all without cost or expense to her. Diaz also testified that he paid premium payments on her insurance policy; he furnished her with free gasoline, oil and repairs to her motor vehicle from March, 1975, to November, 1976, when she lived in the house furnished by him.
It is undisputed that Cantu was completely self-supporting from the time she was disabled in 1969, until March, 1975, when she moved to a rent house owned by Diaz. The evidence introduced by Cantu sharply conflicted with the evidence adduced by Diaz concerning her support from March, 1975, to November, 1976. Cantu testified that her reason for moving was because there would be neighbors (the Diaz family) close by who could assist her in the event she got sick. She further testified that Diaz never supported her and that she, in effect, supported herself during the time that she lived in the rent house owned by Diaz, as a result of monies paid by her to the Diaz family and monies provided by the Welfare Department for her support. It is undisputed that in March, 1975, one Frank Rios owed Cantu the sum of $3,206.66. He was paying her $65.00 per month on said debt. From March, 1975, to November 1976, this monthly payment of $65.00, pursuant to Cantu's instructions, was made by Rios directly to Diaz. It is further undisputed that Cantu paid Mrs. Diaz $100.00 in cash on October 3, 1975, which, according to Cantu was compensation for her meals and upkeep to date. She also paid Mrs. Diaz $60.00 in cash per month thereafter until May, 1976, when the Welfare Department commenced paying Mrs. Diaz for Cantu's care. These payments consisted of a May payment of $130.00 and payments of $127.00 each for the months of June, July, August, September and October, 1976. In addition, food stamps in the amount of $50.00 per month for the months of June, July, August, September and October, 1976, were made available to Cantu, but they were used by Mrs. Diaz in the purchase of food. There is no evidence that the food purchased with the stamps was consumed exclusively by Cantu, and the only inference that can logically be drawn from the evidence is that such food went into the larder of the Diaz family and that it was consumed by the members of the family along with Cantu.
On the issue of "gift," Cantu denied that she gave the insurance proceeds to Diaz. She said that she told Diaz to put the check in "savings." Apparently at that time she did have a savings account. Her position on the question of "gift" was stated by her, as follows:
Concerning the alleged conversion of the proceeds from the insurance company check, Cantu testified: on September 24, 1976, she requested that Diaz take her to see a doctor in Corpus Christi, Texas; Diaz refused for the reason: "the County will not permit me anymore to take anybody anywhere else" ; Cantu then asked "how am I going to go to the doctor in Corpus?" ; Diaz replied: "Call the Community Action" ; whereupon, Cantu said: "I want some money" ; Diaz told her: "I don't have any money." Thereafter, Cantu called Community Action, which transported her from Kingsville to the doctor's office in Corpus Christi, and following a period of hospitalization and treatment took her back to Kingsville on October 27, 1976. Cantu packed her belongings and left the Diaz premises on November 2, 1976. She did not return thereafter. On April 4, 1977, an attorney representing Cantu, wrote Diaz and demanded that payment be made immediately of the $2,000.00 cash in the safety deposit box, the certificate of deposit and the insurance proceeds. Diaz did not make any payment. This suit was then filed on April 23, 1977.
Mrs. Diaz, in answer to the question:
"When was the first time that you understood that Miss Cantu was demanding her money...
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