Pioneer Finance & Thrift Corp. v. Adams, 4208
| Decision Date | 15 March 1968 |
| Docket Number | No. 4208,4208 |
| Citation | 426 S.W.2d 317 |
| Parties | PIONEER FINANCE & THRIFT CORPORATION et al., Appellants, v. Wilbur E. ADAMS, Appellee. . Eastland |
| Court | Texas Court of Appeals |
Andress, Woodgate & Condos, William Andress, Jr., Estep, Waters, Benthul & McCrea, Lynn Estep, Jr., Dallas, for appellants.
Fritz, Vinson & Turley, Edward C. Fritz, Dallas, for appellee.
Wilbur Adams and his wife recovered a judgment against Pioneer Finance & Thrift Corporation, doing business as Termplan and Industrial Finance & Thrift Corporation, on an 'unreasonable collection efforts' case and the defendants have appealed.
The jury found that Termplan made unreasonable collection efforts against Mr. and Mrs. Adams; that Termplan made collection efforts against Adams and his wife with a purpose of causing mental or emotional pain and suffering; that Termplan made unreasonable collection efforts against Adams and his wife with reckless disregard of their health and welfare; that Termplan committed a trespass upon Mr. and Mrs. Adams' property on February 6, 1963, and that such unreasonable collection efforts or trespass by Termplan were a proximate cause of mental or emotional pain and physical illness of Mr. and Mrs. Adams. The jury awarded Mr. and Mrs. Adams $2,500.00 each for mental or emotional pain and physical illness caused by such unreasonable collection efforts or trespass. The jury also found that in making such unreasonable collection efforts or trespass Termplan acted with malice toward Mr. and Mrs. Adams and awarded each $2,250.00 exemplary damages.
Adams testified substantially as follows:
My name is Wilbur Adams and I was formerly employed by Mrs. Baird's Bread Company. I made a deal with Cliff Automotive Service to make some repairs on my car. The garage man took me to Termplan's office when the loan papers were drawn and the garage man and I received a check for $283.00 to be paid in twelve monthly installments of thirty dollars. This was in the Fall of 1962. When I became delinquent on this contract, Termplan sent letters and made telephone calls at night. Quinnbar is the name of one person who called. When I was delinquent I would have an average of about thirty calls per week. Quinnbar called five times one night and the last time he called he said: 'You're nothing but a deadbeat and I should come and clean the whole town up with your hide.' That is the only time he ever threatened me with personal violence. He also threatened to turn me over to the Retail Merchants Association, ruin my credit and take my automobile. These calls would last from three to five minutes. I received several calls from Termplan where I worked.
Sometime in February 1963, I went to my driveway for my car and it was gone. I reported my car stolen to the police. I found my car at St. John's Automobile Recovery. I went to the bank and purchased a Cashier's check for the balance of my account with Termplan and recovered my car. Mr. Adams was asked the following questions and gave the following answers:
'Q. Will you state the facts, please, Mr. Adams, as to during the time you were being contacted by Termplan you experienced any pains or discomfort or physical illnesses?
A. Yes, sir, I experienced a lot of pain and physical discomforts as frequent as the calls were made at my home.
Q. Now, approximately when, in relation to the contacts that were being made, when did you experience these various illnesses or whatever you will describe?
A. At night after supper when the 'phone would ring, just afraid to pick up the 'phone, scare you out of the chair as to whether that was Termplan calling again, knowing I didn't have the money to pay, sick at my stomach, nervous all the time. In my work I made a lot of errors worrying on how I could get these payments made.
Q. You say you were sick at your stomach, can you tell us a little more about--describe a little more what kind of sickness you had at your stomach?
A. I experienced sickness and pains in the stomach and vomiting.
Q. When did you experience any vomiting, Mr. Adams?
A. It was on one occasion after they had talked to me at night on the telephone.'
Appellants' first point is that the court erred in submitting issue number four because the mortgage signed by Adams, authorized it to repossess the car. Issue four inquired if Termplan committed an unauthorized trespass upon the Adams' property on February 6, 1963, being the date of the repossession by appellants. Appellants objected to the submission of such issue because the evidence conclusively establishes that Adams authorized the repossession of his automobile upon default.
In Eichman v. Highland Park State Bank, Tex.Civ.App., 345 S.W.2d 352, (writ ref., 1961), this court said:
'The Courts of Texas, since the case of Singer Sewing Machine Co. v. Rios, 96 Tex. 174, 71 S.W. 275, 60 L.R.A. 143, have recognized that a provision in a chattel mortgage which authorizes and empowers the holder to take possession of mortgaged property upon the mortgagor's default, and sell same at public or private sale is valid.'
We hold there was no unauthorized trespass on the Adams' property by appellants in repossessing his automobile.
No objections were made to the damage issues by appellants. The damage issues asked what amount of money would compensate Mr. and Mrs. Adams for their mental or emotional and physical illness proximately caused by the unreasonable collection efforts or trespass of appellants. The court's charge authorized the jury to consider trespass in answering the damage issues. Appellants cannot for the first time on appeal object to the jury's consideration of trespass in answering the damage issues. Having failed to object to such issues, the appellants waived the error, if any. Rule 279 Texas Rules of Civil Procedure.
Each point of error must be germane to some assignment in appellants' amended motion for a new trial. Appellants' brief does not refer us to any assignment to support their points two and three and we are unable to find one. Contrary to their point number two, the jury did find, in answer to issues five and nine, that Mr. and Mrs. Adams did sustain physical illness. The record shows that appellants made no objection to issues five and nine.
Appellants contend the court's definition of 'unreasonable collection efforts' placed a greater burden upon them than the law requires. The definition is as follows: "Unreasonable collection efforts' means collection efforts, which a person of ordinary prudence, in the exercise of ordinary care, would not have made under the same or similar circumstances.' Appellants in their amended motion for a new trial in paragraph ten...
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