Riley v. Industrial Finance Service Co.

Decision Date15 May 1957
Docket NumberNo. A-6070,A-6070
Citation302 S.W.2d 652,157 Tex. 306
PartiesAllen V. RILEY et ux., Petitioners, v. INDUSTRIAL FINANCE SERVICE CO. et al., Respondents.
CourtTexas Supreme Court

Fritz & Vinson, Dallas, for petitioners.

Jackson C. Burroughs, Dallas, for respondents.

GRIFFIN, Justice.

Petitioners, who were plaintiffs in the trial court, filed suit against seventeen loan companies and three credit insurance companies (including respondents herein), as defendants, for usury and its penalties; for actual damages to plaintiffs, both physical and mental brought about by the concerted action of all defendants by the use of unreasonable harsh and oppressive collection efforts; and for exemplary damages. The respondents in this cause were, in addition to Industrial Finance Service Company, Louis K. Cassett, J. H. Pollak and Joseph H. Pollak, who were alleged to be the owners of Industrial Finance Service Company.

Trial was to the court and a jury, and after the jury verdict judgment was returned for $494.14 usurious interest and penalties adn $5,000 actual damages suffered by the two plaintiffs against the respondents only. The jury had answered the issues as to exemplary damages in the sum of $5,000, but the trial court disregarded such answers and rendered judgment non obstante verdicto for defendants as to the exemplary damages. Upon appeal by the respondents herein to the Court of Civil Appeals that Court reversed the trial court on the ground that error had been committed in the submission of an issue inquiring of the jury the amount of damages suffered by plaintiffs which was attributable solely to respondents' conduct. That Court also held the plaintiffs were entitled to recover exemplary damages against the respondents, as found by the jury. The case was remanded generally for a retrial. 295 S.W.2d 498. We affirm the judgment of the Court of Civil Appeals that this cause should be reversed and remanded.

The opinion of the Court of Civil Appeals makes a clear and complete statement of the case and we shall repeat only so much of the record as is necessary for an understanding of our opinion. The parties will be referred to as they appeared in the trial court. In 1951, when defendants, Industrial Finance Service Company and the other respondents herein, filed their answer to plaintiffs' original petition, they filed a motion to dismiss plaintiffs' petition; or, in the alternative, to sever the cause of action as to Industrial Finance Service Company and its related defendants from the cause of action against all the other defendants upon the ground that there was a misjoinder of causes of action, as the transactions alleged by plaintiffs were separate and set up separate and severable causes of action against the defendants. The motion was never withdrawn or dismissed, nor does the record show any action by the trial court thereon.

Sometime prior to February 25, 1953, the trial court, on its own motion, entered an order separating the defendants into four groups and providing for a separate trial for each group. Plaintiffs vigorously protested the action of the trial court in so severing their cause of action and filed amended pleadings in response to the trial court's order. In their pleading plaintiffs contended for their right to have the cause tried as one cause against all the defendants in one suit. On May 28, 1953, the trial court, on its own motion, entered an order or severance and directed that plaintiffs' cause of action against the respondents herein be given a separate number on that court's docket. Still protesting and only in obedience to the trial court's order plaintiffs filed their fourth amended petition naming only Industrial Finance Service Company and its related defendants as the defendants therein. They continued to allege practically the same grounds of liability as theretofore alleged.

The Industrial Finance Service Company replied to this pleading with its fifth amended answer. They pleaded in their amended answer that the acts of all of the other loan companies originally sued by plaintiffs, and each of them, were the sole proximate cause of plaintiffs' injuries and damages, if any. The jury, in answer to appropriate issues, found that the acts of such other loan companies were a proximate cause, but not the sole proximate cause of plaintiffs' injuries.

In the trial of the case the plaintiffs were permitted to prove, over the objections of the defendants, the course of conduct of not only Industrial and its related defendants, but also of all other of the loan companies originally sued by plaintiffs. The objections made by the defendants to the introduction of the evidence were upon the ground, among others, '* * * that it (the evidence) must be tied down as against this Defendant. We are not liable for what anybody else did,' and '* * * for the reason that the calls (telephone) are not identified and it is therefore an attempt to place the burden upon, the disadvantages upon this Defendant when the evidence shows conclusively that there were many others, and we are not responsible for what any other of these Loan Companies did. * * *' The trial court overruled this objection remarking, 'I believe that is a matter to be taken care of in the charge.'

Since the decision of this Court in Landers v. East Texas Salt Water Disposal Company, 1952, 151 Tex. 251, 248 S.W.2d 731, 734, where two or more wrongdoers join to produce an indivisible injury, all of the wrongdoers are jointly and severally liable to the person wronged for the entire damage suffered. The wronged person as plaintiff may sue one or more of the tort-feasors. If less than all tort-feasors are joined as defendants by plaintiff, then those joined may bring in the others. See also Baylor University v. Bradshaw, Tex.Civ.App., 52 S.W.2d 1094, 1100, affirmed 126 Tex. 99, 84 S.W.2d 703 and authorities therein cited; Austin Road Co. v. Pope, 1949, 147 Tex. 430, 216 S.W.2d 563.

The rule of law in this state is that a plaintiff having been injured by the same set of circumstances sustains but one injury and may receive but one satisfaction for such injury, although more than one person may contribute to such injury. Hunt v. Ziegler, Tex.Civ.App.1925, 271 S.W. 936, 938(4, 5), affirmed Tex.Com.App., 280 S.W. 546; Bradshaw v. Baylor University, 1935, 126 Tex. 99, 84 S.W.2d 703.

It is also the general rule that a valid release of one or more joint tort-feasors by the injury party will release all other tort-feasors contributing to the wrong unless the language of the release is such as to show the intention of the parties thereto that the tort-feasors not parties to the release are not discharged, but that the injured party is reserving his cause of action as to such unreleased wrongdoers. Restatement of the Law, Torts, vol. 4, p. 460, 462, Sec. 885; City of Coleman v. Kenley, Tex.Civ.App.1943, 168 S.W.2d 926, wr. ref. w.o.m.; Eckel v. First Nat. Bank of Fort Worth, Tex.Civ.App.1942, 165 S.W.2d 776, 779, ref.; Harper and James, The Law of Torts, p. 708, Sec. 10.1; Young v. Anderson, 33 Idaho 522, 196 P. 193, 50 A.L.R. 1056, 1072; 148 A.L.R. 1270, 1281; 36 Tex.Jur. 823, et seq.

The evidence in this cause shows that the injuries suffered by plaintiffs were caused by the acts of all the defendants in the manner in which they sought the collection of their debts. It is impossible to separate the damages suffered by plaintiffs so as to properly allocate a part of these damages to any one or more of the defendants. The plaintiffs have suffered an indivisible injury and damages flowing therefrom. This being true, each and every defendant is liable to plaintiffs for the total damages caused by all the tort-feasors. The only proper issue as to measure of damages is one which will find the total damages suffered by plaintiffs. Landers v. East Texas Salt Water Disposal Company, supra.

The trial court in his charge submitted Issue No. 18, inquiring what were Mr. Riley's actual damages 'directly and proximately caused by the collection efforts, if any, of Industrial Finance Service Company.' Issue No. 19 was in the same language except the damages inquired about were those suffered by Mrs. Riley. To the submissions of the liability of Industrial Finance Service Company alone, Industrial, at the proper time lodged its objections '* * * that the issue should be submitted as to the amount of total damages suffered by the plaintiffs. Otherwise, it will be impossible for the Court to give this defendant credit for the amount of settlements that he (plaintiffs) has made with the other people and other defendants in this case who by the uncontradicted testimony shows contributed to the plaintiffs' total injury.' The Court of Civil Appeals holds this objection to be sound and reverses the trial court for its submission of the damages issue as to Industrial Finance Service Company alone. We agree that a total damages issue should have been submitted by the trial court. The submission by the trial court of the damages issue, under the facts of this cause, was error. This is true because the liability of the defendants was joint and several for the total amount of damages inflicted upon plaintiffs by all the defendants. Landers v. East Texas Salt Water Disposal Co., supra. The submission, as made by the trial court, confined their liability to their own acts.

It is the settled rule of law that any judgment rendered against one or all of the defendants must be credited with the amount of money received by plaintiffs in their settlements with other original defendants. Eckel v. First Nat. Bank of Fort Worth, supra; McMullen v. Coleman, Tex.Civ.App.1940, 135 S.W.2d 776, no writ history; City of Coleman v. Kenley, supra; City of Coleman v. Smith, Tex.Civ.App.1943, 168 S.W.2d 936, ref.; Baylor University v. Bradshaw, supra. If less than all defendants are sued, those against whom judgment is rendered may...

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