Ledisco Financial Services, Inc. v. Viracola, 8341

• Decision Date: 24 February 1976
• Docket Number: No. 8341,8341
• Citation: 87 A.L.R.3d 774,533 S.W.2d 951
• Parties: LEDISCO FINANCIAL SERVICES, INC., Appellant, v. Langdon A. VIRACOLA, Appellee.
• Court: Texas Court of Appeals

Page 951

533 S.W.2d 951

87 A.L.R.3d 774

LEDISCO FINANCIAL SERVICES, INC., Appellant, v. Langdon A. VIRACOLA, Appellee.

No. 8341.

Court of Civil Appeals of Texas,

Texarkana.

Feb. 24, 1976.

Lewis R. Sifford, Anderson, Henley, Sheilds, Bradford, Pritchard & Miller, Dallas, for appellant.

J. C. B. Aler, Weinberg, Sandoloski & McManus, Dallas, for appellee.

CORNELIUS, Justice.

Based upon Tex.Rev.Civ.Stat.Ann. art. 5069, 11.01--11.11 Langdon A. Viracola filed suit against Ledisco Financial Services, Inc. and Carte Blanche, Inc. to recover damages for unreasonable collection efforts. The jury exonerated Carte Blanche, Inc. but awarded damages against Ledisco. The award was based upon findings that Ledisco, through Harry J. Joy, made harassing telephone calls to Viracola as prohibited by Sec. 11.03(b) of the statutes, and that Joy assaulted Viracola. Damages were in the sum of $7,500.00 for the harassing telephone calls and $1.00 for the physical assault. Exemplary damages of $10,000.00 and attorney's fees were also awarded.

Viracola's evidence was generally as follows: During the course of several disputes with Carte Blanche relative to amounts Viracola owed, his credit card was cancelled, then reinstated, and cancelled again. Carte Blanche then engaged Ledisco to contact Viracola in Dallas for the purpose of retrieving the cancelled credit card. Harry J. Joy, an employee of Ledisco, went to Viracola's home and requested the return of the credit card. In a confrontation which ensued, Joy became aggressive and attempted to force his way into Viracola's house. When Viracola resisted, Joy hit him in the chest with a metal clip board. Viracola then pushed Joy off the porch and onto the grass and ordered him to leave. On several later occasions, some in the daytime and some at night, Joy telephoned Viracola's house refusing to identify himself and made threats and used obscene language both to Viracola and to one of his children. To the contrary, Ledisco's evidence was that Viracola was responsible for turning Joy's visit into a physical confrontation and that he, Viracola, committed an assault upon Joy. Joy and the officers of Ledisco all testified that none of them made any telephone calls to Viracola or to his home. An attempt was made to prove that Viracola had committed assaults one some of his neighbors, raising an inference that those persons rather than Joy made the telephone calls to Viracola, but that evidence was excluded by the trial court. Ledisco's officers testified that Joy was not authorized to use any force or pressure tactics whatsoever but was only authorized to ask for the card, and if it was refused to leave without further comment.

Ledisco has assigned seventy points of error, which for the purposes of brevity and better understanding, are grouped into categories for discussion.

I.

Articles 5069--11.01 et seq. ¹ create a right of action in favor of a consumer who has suffered from the actions prohibited by those statutes. Ledisco's first group of points complains that there was no evidence and no jury finding that Viracola was a 'consumer'. These points will be overruled. The statutes define 'consumer' as an individual who owes or allegedly owes a debt created for personal, family, or household purposes. 'Debt' is defined as any obligation arising out of a consumer transaction. A 'consumer transaction' is a transaction in which one or more of the parties is a consumer. The undisputed evidence showed that Viracola used his Carte Blanche credit card for personal purposes and owed money to Carte Blanche, Inc. He also owed the obligation to return the credit card when it was cancelled. Both of these obligations were part of the consumer transaction between Viracola and Carte Blanche. Ledisco was engaged by Carte Blanche to enforce one of these obligations. Thus, according to the undisputed evidence, Viracola was a consumer within the intent of the statutes, and it was not necessary that an issue be submitted on that question .

II.

The statutory remedies are made available when certain acts are committed 'in connection with the collection of or attempt to collect any debt.' Ledisco's second and third groups of points complain because there was no evidence or jury finding that Ledisco was a debt collector or was ever engaged in an attempt to collect a debt. The basis of this argument is that Ledisco was only attempting to retrieve Viracola's credit card and was not authorized to collect any money and made no attempt to do so. The statutes define 'debt collection' as 'any action, conduct or practice . . . in collecting debts owed or due, . . .'. As heretofore noticed, 'debt' is defined as 'any obligation' arising out of a consumer transaction. Under this broad definition, Viracola's obligation to return the credit card upon cancellation would itself be a debt. Such a construction would not do violence to the generally accepted meaning of the word. See cases collected in 11 Words & Phrases, 'Debt' at pages 394, 395. Moreover, the attempts of Ledisco to retrieve the card appear to have been so intimately connected to the entire consumer transaction as to be properly considered an integral part of the debt collection process within the meaning of the statutes. To hold otherwise would enable finance companies to remove an essential part of their debt collection activities from the regulation of the statutes by separating them and assigning them to others, thus defeating the overall purpose of the act. As Ledisco's activities in this regard were undisputed, there was no need to submit an issue thereon.

III.

The next group of points concerns scope of employment. It is urged there was no pleading, no jury finding, and no evidence or insufficient evidence that Harry Joy acted in the scope of his employment for Ledisco when the acts occurred. Viracola's petition simply alleged that Ledisco perpetrated the improper acts. Where the principal is sued for a tort committed by an agent, it is sufficient to allege that it was committed by the principal. 2 Tex.Jur.2d, Agency, Sec. 218, p. 674; Freeman v. Texas Bread Co., 111 S.W.2d 307 (Tex.Civ.App. Galveston 1937, no writ). The pleadings were therefore sufficient. The questions whether an issue was required on scope of employment and whether there was evidence of such scope of employment present more difficulty. No issue on scope of employment was required in connection with the clip board incident because the undisputed evidence showed that Joy was in the scope of his employment with Ledisco when he went to Viracola's home to get the credit card. As to the telephone calls, scope of employment was not submitted as such, but the jury was asked by issue No. 4: 'Do you find from a preponderance of the evidence that . . . Ledisco Financial Services, Inc. placed telephone calls Through its employee, Harry J. Joy, without disclosure of the name of the individual making the call and with the willful intent to annoy or harass or threaten any person at the . . . residence of the plaintiff . . .?'. Ledisco, a corporation, could act 'through' Joy only (1) if the acts were done while he was acting within the scope of his employment, or (2) if he was an agent who represented the corporation in such a way that his acts could be regarded as the acts of the corporation itself as distinguished from those of a mere servant. Standing alone, an issue inquiring if Ledisco acted 'through Joy' allowed the jury to assume, without finding, that one of these essential facts existed. Under the recent amendment to Tex .R.Civ.P. 277, this omission could have been supplied by an explanatory instruction, but Ledisco requested no such instruction. See Tex.R.Civ.P. 279. Nevertheless, we have concluded there was no evidence to support issue No. 4. It is without dispute that Joy was merely an employee of Ledisco and was not an agent with responsibilities which would render his acts the acts of the corporation itself. The calls were placed when Joy's duty--that of attempting to retrieve the credit card--had been fulfilled. There was no evidence that the officers of Ledisco knew of, authorized, or ratified such calls. Viracola testified fully to the telephone conversations. There was no mention in them of the credit card or any debt or obligation on Viracola's part, either to Carte Blanche or to Ledisco. The calls exerted no pressure, expressed or implied, upon Viracola to return the card or to pay any debt. The sole content of the calls was that of abuse and threats of a personal nature by Joy against Viracola. In the absence of any words, conduct, or other circumstances indicating that the calls were for the purpose of inducing Viracola to return the credit card, the only reasonable inference supported by evidence is that such calls were motivated by Joy's personal anger and desire to retaliate because of his treatment by Viracola. Since they had nothing to do with Ledisco's business--the retrieval of the credit card--they are insufficient to raise an inference that they were made in furtherance of Ledisco's business.

IV.

Ledisco asserts there should have been an issue and a jury finding on whether the acts committed by Joy were a proximate cause of Viracola's injuries and damages. Proximate cause was not submitted as such, but the jury was asked if Viracola sustained any actual damage 'as a result' of the telephone calls, and if he was injured 'as a result' of the clip board incident. These issues were framed in the express language of Section 11.10 which provides that any person '. . . may maintain an action for actual damages sustained as a result of a violation of this Act.' We believe a submission such as given here is sufficient in this kind of case. It was undisputed that the acts caused the claimed injury. In addition, the acts were willful and intentional rather than negligent, and it is presumed that a person who acts willfully foresees and intends the consequences of his...