Rippetoe v. White Rock Nat. Bank, 5725

• Citation: 555 S.W.2d 934
• Decision Date: 22 September 1977
• Docket Number: No. 5725,5725
• Parties: Charles RIPPETOE, Appellant, v. WHITE ROCK NATIONAL BANK, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 934

555 S.W.2d 934

Charles RIPPETOE, Appellant, v. WHITE ROCK NATIONAL BANK, Appellee.

No. 5725.

Court of Civil Appeals of Texas, Waco.

Sept. 22, 1977.

Rehearing Denied Oct. 13, 1977.

Ronald R. Waldie, Dallas, for appellant.

G. Leroy Street, Geary, Stahl, Koons, Rohde & Spencer, Dallas, for appellee.

OPINION

JAMES, Justice.

This is a suit for the balance due on a note and for exemplary damages. Plaintiff-Appellee White Rock National Bank sued Defendant-Appellant Charles Rippetoe for $1444.64 balance alleged to be due upon an automobile note, and for.$1000.00 exemplary damages. Based upon a jury verdict favorable to the Bank, the trial court entered judgment in favor of the Plaintiff Bank against the Defendant Rippetoe for $2444.64, from which the Defendant appeals. We affirm.

The jury in answer to special issues found:

(1) That Mr. Rippetoe did not make payment of the balance due on the note on or about November 6, 1975;

(2) That Mr. Rippetoe acted with malice in refusing to return the original note and certificate of title;

(3) That the Bank should be awarded.$1000.00 damages against Mr. Rippetoe as exemplary damages.

Appellant's first point of error contends that there is no evidence of probative value to support the jury's finding in answer to Special Issue No. 1 to the effect that Mr. Rippetoe did not make the payment on or about November 6, 1975, for the asserted reason that such evidence is hearsay. We do not agree.

On May 29, 1974, Appellant Rippetoe executed a note with a loan statement and security agreement with the Appellee Bank, for the purchase of a 1972 Mercury Marquis automobile. Mr. Rippetoe gave the Bank a security interest in the automobile to secure the payment of the note. The Bank's testimony is to the effect that on November 6, 1975, at a time when there was a balance due on the note in the amount of $1444.64, the Bank by mistake released the title certificate to the automobile, marked the note "paid", and mailed the note and title certificate to Mr. Rippetoe. Thereafter the Bank discovered their mistake and made demand upon Mr. Rippetoe to return the note and title certificate, which demand was refused. Mr. Rippetoe testified that on November 6, 1975, he came into the Bank personally and paid the $1444.64 balance in cash, and at that time was given the released title certificate and the note marked "paid." As stated, the jury found that Appellant did not make the payment, and in refusing to do so, acted with malice, and awarded.$1000.00 exemplary damages. Pursuant to and in harmony with the jury verdict, judgment was entered in favor of the Bank against Mr. Rippetoe for $2444.64.

Michael L. Dietrich, a vice president of the Bank whose primary duties consisted of lending officer and custodian of the books and records in the loan department, testified that he was well familiar with the Bank's file on Charles Rippetoe; that the Bank's records were made in the regular course of business; that it was the regular course of business for an employee or an agent with personal knowledge of an act or event to make a memorandum or record of that act or event and include it in the appropriate file; that such records of any such act or events were made at or near the time they occurred or reasonably soon thereafter. He then testified that Mr. Rippetoe's file does not show any record of a cash payment on Mr. Rippetoe's note on November 6, 1975, as...