Southwestern Inv. Co. v. Alvarez

• Decision Date: 15 April 1970
• Docket Number: No. B--1699,B--1699
• Citation: 453 S.W.2d 138
• Parties: SOUTHWESTERN INVESTMENT COMPANY, Petitioner, v. Juan ALVAREZ, Respondent.
• Court: Texas Supreme Court

Page 138

453 S.W.2d 138

SOUTHWESTERN INVESTMENT COMPANY, Petitioner, v. Juan ALVAREZ, Respondent.

No. B--1699.

Supreme Court of Texas.

April 15, 1970.

Rehearing Denied May 13, 1970.

Clayton & Clayton, Cleo G. Clayton, Jr., Amarillo, for petitioner.

Sam J. Dwyer, Jr., El Paso, for respondent.

POPE, Justice.

Juan Alvarez filed suit against South-western Investment Company, hereafter called S.I.C., for the conversion of his 1962 Ford. The trial court rendered judgment on a verdict in favor of Alvarez for $1,500.00 actual damages and $5,000.00 exemplary damages. The court of civil appeals affirmed the judgment upon condition that Alvarez file a remittitur in the sum of $2,500.00 exemplary damages. 442 S.W.2d 862. We modify the judgments of the courts below and affirm the judgment for Alvarez in the sum of $1,500.00 actual damages.

S.I.C. is before this court with a number of points which essentially urge that (1) there is no evidence of a conversion, (2) the judgment for actual damages should have been reduced by the amount Alvarez owed on the vehicle, and (3) there is no evidence of malice which supports the finding of exemplary damages.

There is some evidence of a conversion. In December, 1961, Alvarez bought his automobile from El Paso Auto Center, Inc. He made a down payment of $1,000.00 and financed the balance of $3,530.16 by his execution of a note and mortgage. He agreed to pay thirty-six monthly payments of $98.06 on the twentieth day of each month beginning in January of 1962. S.I.C. purchased the note and mortgage, but it had an agreement with Auto Center which obligated Auto Center to buy back from S.I.C. any vehicles which Auto Center had sold and which S.I.C. later repossessed. The agreement was that Auto Center would pay S.I.C. in cash the amount of any unpaid balance which was owing on the cars.

Alvarez made all of his payments up to February 1964, but he was consistently late in paying the installments. He fell behind on his payments for February 20 and March 20, 1964, and on March 27 he permitted S.I.C. to pick up the automobile. He testified that S.I.C. agreed to hold the car until he made the payments. S.I.C. picked up the car on March 28 and its ledge sheet was stamped, 'Repossessed--Date 3--31--64.' A few days later Alvarez went to the office of S.I.C. to pay the two installments and was told to check with Auto Center. On checking there, Alvarez learned that Auto Center had sold the automobile on April 7 to another person for $1,951.75. The proof shows that Auto Center, in compliance with its dealer's protection agreement, paid to S.I.C. the full amount which Alvarez still owed on his note, which was the sum of $1,239.89.

S.I.C. says there was no conversion because it did not make an agreement with Alvarez to extend the time for him to make his two payments. The jury made a finding that S.I.C. 'agreed to hold the 1962 Ford * * * until after March 31, 1964, to permit plaintiff to pay the payments for February, 1964 and March, 1964.' S.I.C. urges that there is no evidence of such an agreement. Our examination of the direct and cross-examination of Alvarez shows that he was not an articulate person, and often his answers were not entirely responsive to the questions. He did, however, in his disjointed testimonial style tell the jury his story. He testified that he was at first only one month behind. This related to his February payment. He next said, without another question, 'I got behind two months. I stopped at the office and talked to the * * * man in charge of this kind of * * * I don't know whether it is adjustments or something; I need more days to * * * to make the two payments. He said, 'Well, we take the station wagon until you pay the two payments." The time of this conversation can be fixed since Alvarez said it was the day before S.I.C. picked up the car which was on March 28. Alvarez' attorney later asked him, '* * * explain to the jury about that part of it, what agreement you reached with them about making up the two payment?' To this, Alvarez responded:

'Well, I don't have any * * * you know, any paper or any note or nothing, only talked to the man in charge of this office, and he say he take the station wagon, after you pay the two months * * * because I stop at the office before the two months late, a few days before, I just and I talk * * * to wait for the payment of next week because I work right now and he says, 'yes, okay, the only trouble is I need to bring the station wagon here to the office,' and I accept to this.'

Alvarez testified that he agreed to pay late charges for the extension of time. R. F. Finance Corporation v. Jones, 50 S.W.2d 475 (Tex.Civ.App.1932, no writ).

The jury could well have concluded from this direct evidence that an agreement was made the day before the car was picked up and that the automobile would be held by S.I.C. until Alvarez paid the two delinquent payments the following week. We conclude that there was some direct and inferential evidence which supports the jury finding that there was an agreement to extend the time for payment.

S.I.C. also says that the trial court rendered judgment for damages in an erroneous amount. It says Alvarez owed S.I.C. at the time of the conversion the sum of $1,239.89 and that amount should have been setoff against the amount the jury found as the value of the car. Alvarez alleged two different measures of recovery in his petition and a trial amendment. He first alleged that the vehicle had a reasonable market value of $2,500.00, in which amount he was damaged. By a trial amendment he asserted, not in lieu of his allegation of damages in the sum of $2,500.00 but by way of a 'further' pleading, that he was entitled to recover the difference between $1,951.00, the amount for which the car was sold, and the sum of $1,239.89, the amount he owed on the car at the time of the alleged conversion. We construe Alvarez' pleading as one which asserts alternative measures of recovery. S.I.C. filed no exceptions to the pleadings and asserted no offset. The absence of any pleading by S.I.C. for an offset is the basis for the trial court's judgment that Alvarez should recover the value of the vehicle as found by the jury.

S.I.C. says that Alvarez failed to prove that it acted with malice and that such proof is essential to a judgment for punitive damages. We sustain this contention. Alvarez tried his case and the issues were submitted upon the theory that his proof of an unlawful or wrongful act was sufficient to support a recovery of exemplary damages. In Ware v. Paxton, 359 S.W.2d 897 (Tex.Sup.1962), we wrote:

'The fact that an act is unlawful is not of itself ground for an award of exemplary or punitive damages. The act complained of not only must be unlawful but also must partake of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature, and an act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful.'

We hold that Alvarez failed to prove any malice and that this failure defeated his claim to exemplary damages.

The judgment that Alvarez recover damages is reformed by the elimination of all exemplary damages and, as thus reformed, is affirmed.

STEAKLEY, Justice (dissenting).

I respectfully dissent in the view that the jury findings upon which the award to Alvarez must rest are without support in the evidence. I would hold that the recovery of Alvarez is limited to the value of his equity in the repossessed automobile.

Problems of 'no evidence' are often difficult of solution. Admittedly, we have the power to say, as the majority has here, that there is 'some evidence' to support essential findings. But in doing so we should steadfastly adhere to reliable and acceptable standards by which evidence is weighed. I do not think the majority has done so here. The reasons for my views can best be shown by a more detailed analysis of the evidence, including the testimonial words of Alvarez in fuller context.

Alvarez purchased a 1962 Ford station wagon from El Paso Auto Center, Inc., in December, 1961. He financed the purchase by executing a note and chattel mortgage in favor of Auto Center which evidenced a down payment of $1,000.00 and a financed balance of $3,530.16. The balance was to be paid in thirty-six monthly installments of $98.06 due and payable on the twentieth day of each month beginning in January of 1962. The mortgage authorized repossession of the automobile and foreclosure of the mortgage upon default. SIC purchased the Alvarez note and mortgage from Auto Center. Alvarez was late from two to twenty-five days on each subsequent monthly payment to SIC and on occasions paid charges for late payments. The present controversy followed a visit by Alvarez to the offices of SIC in El Paso. He testified as follows under interrogation by his Counsel:

Q (BY MR. DWYER:) 'Now, sir, I will ask you if Sometime in February, 1964,* if you became behind in your payments with the SIC Company?

A 'Yes

Q 'Will you tell the jury here what occurred, if...