Employees Finance Co. v. Lathram

• Decision Date: 24 July 1963
• Docket Number: No. A-9482,A-9482
• Parties: EMPLOYEES FINANCE COMPANY et al., Petitioners, v. Crit C. LATHRAM, Respondent.
• Court: Texas Supreme Court

Page 927

369 S.W.2d 927

EMPLOYEES FINANCE COMPANY et al., Petitioners, v. Crit C. LATHRAM, Respondent.

No. A-9482.

Supreme Court of Texas.

July 24, 1963.

Abney, Howell, abramson & Burleson, Dallas, R. Dean Moorhead, Austin, for petitioners.

Fritz & Vinson, Dallas, for respondent.

CALVERT, Chief Justice.

In his suit based upon usurious interest charges and unreasonable collection efforts, Crit C. Lathram, as plaintiff, recovered separate judgments against a number of defendants for double the amount of interest paid on loans, as authorized by Art. 5073, Vernon's Texas Civil Statutes, and a joint and several judgment against Employees Finance Company, First Finance Service, Texas Finance Company, Union Finance Company, W. Lee Moore, Jr., individually, W. Lee Moore, Jr., independent executor of the estate of W. Lee Moore, United Finance & Thrift Corporation of Fort Worth and State Loan and Finance Corporation for $2,900.00 as damages resulting from unreasonable efforts to collect loans. The Court of Civil Appeals affirmed. 363 S.W.2d 899.

We sever the case into two causes, as follows: 1. Lathram's claims for recovery from the various defendants of double the amount of interest paid on loans as authorized by Art. 5073. As to this cause we affirm the judgment of the Court of Civil Appeals. 2. Lathram's joint and several claim against the defendants for recovery of actual damages caused by the defendants' unreasonable efforts to collect loans made to him. As to this cause we reverse the judgments of the Court of Civil Appeals and trial court and order the cause dismissed, without prejudice to the rights of the various defendants.

Among the recoveries awarded to Lathram under Art. 5073 by the trial court's judgment was an item of $486.90 from United Finance & Thrift Corporation of Fort Worth, State Loan and Finance Corporation and General Fidelity Life Insurance Company, jointly and severally. It has been noted above that United Finance & Thrift Corporation of Fort Worth and State Loan and Finance Corporation were, with others, also made jointly and severally liable for the recovery of $2,900.00 awarded as actual damages for unreasonable collection efforts. These defendants did not appeal from the trial court's judgment, and, upon issuance of a writ of execution, United paid in full the items of $486.90 and $2,900.00, together with accrued interest and all court costs.

Other recoveries awarded to Lathram under Art. 5073 by the trial court's judgment were as follows: 1. $273.85 against Employees Finance Company and W. Lee Moore, Jr., individually and as independent executor of the estate of W. Lee Moore, jointly and severally. 2. $329.35 against First Finance Service and W. Lee Moore, Jr., jointly and severally. 3. $436.90 against Texas Finance Company and W. Lee Moore, Jr., individually and as executor of the estate of W. Lee Moore, jointly and severally. 4. $306.70 against Union Finance Company and W. Lee Moore, Jr., individually and as executor of the estate of W. Lee Moore, jointly and severally. All of these defendants appealed from the trial court's judgment and are the petitioners here. In the Court of Civil Appeals they challenged the correctness of the judgment as to the recoveries here itemized and as to the recovery of $2,900.00 as damages for unreasonable collection efforts. As heretofore noted the Court of Civil Appeals affirmed as to both.

In this Court petitioners seek a reversal of the entire judgment of the Court of Civil Appeals, but they do not, by point of error or otherwise, point to any error in the judgment of the Court of Civil Appeals in so far as it affirms the various items of recovery awarded under Art. 5073.

Rule 503, Texas Rules of Civil Procedure, provides, in part, that if an error of law has been committed by the trial court, and it appears to this Court 'that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error.' The errors here complained of affect only the part of the judgment awarding a recovery of $2,900.00 as damages for unreasonable collection efforts. That issue is severable from the issues of statutory damages arising out of the collection of usurious interest. We must, therefore, affirm the judgment of the Court of Civil Appeals in so far as it affirms the judgment of the trial court awarding respondent recovery of the several items of damages under Art. 5073.

We are next concerned with a proper disposition of the remaining cause in which Lathram recovered a judgment for $2,900.00. Lathram has filed a motion to dismiss in this cause. In support of his motion he argues that since the judgment in this severed cause has been paid in full, the questions presented by petitioners' points of error are moot. We are disposed to agree.

Petitioners present no points of error which, if sustained, would require or permit a reversal of the judgment and a rendition of judgment that plaintiff take nothing. The only points of error presented complain of the action of the trial court in striking allegations of contributory negligence from petitioners' answer to respondent's claim for damages for unreasonable collection efforts, and of errors committed in the...