Hill v. Budget Finance & Thrift Co., 16411

Decision Date09 October 1964
Docket NumberNo. 16411,16411
Citation383 S.W.2d 79
PartiesChester HILL, Appellant, v. BUDGET FINANCE & THRIFT COMPANY et al., Appellees.
CourtTexas Court of Appeals

Edward C. Fritz, Fritz & Vinson, Dallas, for appellant.

Sessions, Sessions, Ackels & Looney, Dallas, for appellees.

WILLIAMS, Justice.

Alleging that he had been charged usurious rates of interest and had suffered damages by reason of having been harassed by unreasonable collection efforts, Chester Hill sued four groups of finance companies and their individual owners, such defendants being: (1) Safeway Finance Company and S. M. Connell; (2) Budget Finance & Thrift Company, et al, and Jack Killian, et al; (3) Reserve Loan Service and Paul Luther, et al; and (4) Community Finance & Thrift Corporation, et al. Plaintiff sought double usurious interest damages separately from each group of defendants, actual damages resulting from harassment by all four groups of defendants, and exemplary damages resulting from malice separately from each group of defendants. Prior to trial Hill settled with defendants Jack Killian and Tommy Jones (being a part of the second group of defendants named above) for $1,000, of which $600 was designated in the release as settlement of the usury and exemplary damages, and $400 was for actual damages. Plaintiff also settled with Community Finance & Thrift Corporation, et al (the fourth group of defendants named above) for $1,000, of which $900 was allocated in the release as usury and exemplary damages, and $100 for actual damages. Plaintiff then settled with the third group of defendants (Reserve Loan Service, et al), the written release reciting $1,205.55 being apportioned for usury and exemplary damages and $382.05 apportioned for actual damages.

Following these settlements trial was had before a court and a jury. Budget Finance & Thrift Company, and other non-settling defendants in Group 2 above, made default. The Safeway Finance-Connell group of defendants appeared and contested the issues. The jury found double usurious interest damages in the sum of $640 against Safeway Finance-Connell and $1,229.20 against Budget Finance & Thrift Company, et al, and judgment against these defendants for these amounts of damages is not contested on appeal. The jury found no malice and therefore the issue of exemplary damages passed out of the case. The jury awarded the sum of $2,000 to the plaintiff as actual damages 'proximately caused by unreasonable collection efforts of all the defendants originally sued in this case." After the jury was discharged, the court, by agreement, proceeded to determine the issue relating to the proper credit to be allowed the non-settling defendants against the $2,000 verdict for actual damages caused jointly by all the original defendants. After hearing testimony the court allowed credits of $400 (actual damage apportionment in the Killian settlement), $100 (being actual damage apportionment in the Community settlement), and $810 (being found by the court to be the total settlement with Reserve Loan Service, et al), totaling $1,310 against the $2,000 judgment for actual damages, leaving a balance of $690 actual damages which the court awarded jointly and severally against the non-settling defendants. Plaintiff, only, appeals from this judgment.

Appellant makes no complaint here concerning the judgment of the trial court in his favor except that part of the judment wherein the trial judge deducted the sum of $810, involved in the Reserve Loan settlement, from the actual damage verdict of $2,000. Appellant contends, in his first three points of error, that appellees Safe-way-Connell were not entitled to be credited with the entire sum of $810 inasmuch as this amount represented settlement with Reserve Loan not only for actual damages, but also for usury and exemplary damages, which damages are not joint, but several, and for which the non-settling defendants were not entitled to credit. Appellant contends that the proper to credit which the court should have granted was the sum of $382.05, being the amount allocated in the Reserve Loan settlement release which was introduced in evidence. Thus appellant contends that the proper judgment for actual damages should have been $1,117.95 rather than the amount of $690 awarded by the court.

The rule establishing the right of credit by a joint tort-feasor is aptly stated in 104 A.L.R. 932, as follows:

'* * * joint tort-feasors, when sued for damages by reason of some alleged injury or wrong, have generally been held entitled to show, for the purpose of mitigating or reducing damages, that the same injury or wrong was partially compensated by a payment made by another joint tort-feasor, by presenting evidence of such a payment, and such evidence has been held proper to be considered in fixing the amount of the damages; * * *.'

It is, of course, definitely established that such credit to be claimed by a joint tort-feasor is confined to those damages for which all tort-feasors are equally liable. Where a plaintiff sues several defendants, alleging different kinds and types of damages, some being common to all defendants and others not, the plaintiff must only give credit to a non-settling defendant for that part of the damages which he receives from setting defendants that are applicable to all equally. This situation is frequently found in the type of case with which we are now confronted wherein the plaintiff sues one or more defendants for usurious interest, exemplary damages, and actual damages. It is only as to actual damages, common to all defendants, that the question of proper credit is presented. The matter was settled by our Supreme Court in Riley v. Industrial Finance Service Co., 157 Tex. 306, 302 S.W.2d 652 where the court said:

'There being but one injury for which plaintiffs can receive but one satisfaction, defendants are entitled to have credited on the judgment against them all sums paid by others also liable to plaintiffs for the damages resulting from the common acts of all tort-feasors.'

* * *

'The liability of these defendants for the usury charged by them was their own liability for which none of the other tort-feasors can be held liable. The cause of...

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    ...Co. v. Goody, 248 F.2d 260, 267 (2d Cir.1957), cert. denied, 355 U.S. 952, 78 S.Ct. 536, 2 L.Ed.2d 529 (1958); Hill v. Budget Finance & Thrift Co., 383 S.W.2d 79, 81 (Tx.App.1964). Similarly, credit would not normally be allowed on an award of punitive damages. McKinnon v. City of Berwyn, 7......
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