Western Guaranty Loan Co. v. Dean

• Decision Date: 20 December 1957
• Docket Number: No. 15075,15075
• Citation: 309 S.W.2d 857
• Parties: WESTERN GUARANTY LOAN CO. et al., Appellants, v. Robert B. DEAN, Appellee.
• Court: Texas Court of Appeals

Page 857

309 S.W.2d 857

WESTERN GUARANTY LOAN CO. et al., Appellants, v. Robert B. DEAN, Appellee.

No. 15075.

Court of Civil Appeals of Texas, Dallas.

Dec. 20, 1957.

Rehearing Denied Jan. 17, 1958.

Jack C. Burroughs, Johnson & Abney, Fred S. Abney, H. B. Houston, and C. C. Renfro, Dallas, and Pat Beadle, Clarksville, for appellants.

Edward C. Fritz, Dallas, for appellee.

DIXON, Chief Justice.

Our opinions heretofore delivered in this appeal are withdrawn and in lieu thereof the following opinion is substituted.

Appellee Robert B. Dean originally filed suit against more than 20 loan companies and three insurance companies, alleging that he had been charged usurious interest on loans and had suffered damages by reason of the wrongful collection efforts of defendants.

As a result of settlements and dismissals most of the defendants had been eliminated by the time the case came on for trial. After a trial in which more than 300 issues were submitted to a jury, a judgment was rendered as follows: Against Western Guaranty Loan Company for $224.40 as double usury charges, and $1,800 as damages for reckless collection efforts; against Louis K. Cassett, J. H. Pollack and Joseph H. Pollack, doing business as Royal Finance Company, for $174.56 as double usury charges, and $600 as damages for reckless collection efforts; and against Chlo Vean Smith Wheatley for $40.98 as double usury charges, and $1,800 for reckless collection efforts. Judgment was rendered in favor of defendants W. L. Caldwell and Mrs. J. A. Allison, owners of Triangle Loan Service based on the jury verdict; and judgment non obstante veredicto was rendered in favor of defendants Bankers Health and Accident Company, City National Life Insurance Company, and Southern Life Insurance Company. All defendants against whom judgment was rendered have appealed. Appellee Dean has appealed from the judgments in favor of other defendants.

Appeal of Western Guaranty Loan Company

In its first point on appeal Western Guaranty Loan Company says that it was error to render judgment for damages, since the jury found that the Company's efforts were exerted without malice and without any purpose to harm appellee Dean.

It is true that the jury found that appellant in its collection efforts was not actuated by malice (issue No. 27); and that said efforts were not made with a purpose of causing appellee mental and emotional pain and suffering (issue No. 21). But it is also true that the jury found that appellant made unreasonable collection efforts (issue No. 15); with reckless disregard for appellee's health and welfare (issue No. 18); as a result of which collection efforts appellee lost compensation from his work from June 22, 1949, to the date of the trial (issue No. 25); in the amount of $1,800 (issue No. 26).

In our opinion the jury's answers to issues Nos. 15, 18, 25 and 26 are sufficient to support the judgment of $1,800 actual damages allowed by the court. Loss of compensation in connection with one's employment is a proper element of damages in a tort action. Duty v. General Finance Co., 154 Tex. 16, 273 S.W.2d 64; Askins, Inc., v. Sparks, Tex.Civ.App., 56 S.W.2d 279; Cotton v. Cooper, Tex.Com.App., 209 S.W. 135. The phrase reckless disregard of plaintiff's welfare is so like unto the phrase gross negligence that for purposes of this case the two phrases may be taken to have substantially the same meaning. Therefore the finding of reckless disregard for plaintiff's welfare will support a recovery for damages. Wood v. Orts, Tex.Civ.App., 182 S.W.2d 139; Tri-State Transit Co. v. Gay, 179 Miss. 75, 172 So. 742; 30-B Tex.Jur. 199-201; 18A Words and Phrases, Gross Negligence, pp. 534-538, 583; 36 Words and Phrases, Reckless, p. 491. Appellant's first point on appeal is overruled.

In its second point on appeal appellant Western Guaranty Loan Company asserts that the judgment against it was erroneous because, (a) there was no pleading to support the judgment; (b) there was no evidence to show 'direct and proximate result'; and (c) the verdict precludes a judgment for appellee in that the jury found that appellee did not suffer any mental and emotional pain and suffering and physical illness.

Dean pled the provisions of the City Code of Dallas, Arts. 73-76, forbidding lenders to communicate with employers of borrowers with intent to harass or annoy said employers. He pled also the following: That appellant called him constantly from 8:00 A. M. to 6:00 P. M. at home and at work; that appellant threatened to cause him to be discharged from his employment; that appellant flooded Dean at home and at work with letters, dun cards, etc., and spoke to appellee's supervisors at his place of employment; that his supervisors warned appellee that if this continued he would probably be discharged; that such program of harassment was done with reckless disregard to appellee's welfare; and was done negligently; with the direct and proximate result that Dean's ability to work declined and he was discharged from his job at which he was making $60 per week; and given a leser job at which he was able to make only $12.50 to $25 per week.

Without setting out the evidence in detail we shall simply say that appellee Dean's testimony parallels and supports the above findings.

The jury was expressly instructed to answer issue No. 25, the damage issue, only in the event issue No. 15, or No. 18, or No. 21 had been answered 'Yes'. Since issues Nos. 15 (unreasonable collection efforts) and 18 (reckless disregard) were both answered 'Yes', we think the jury verdict supported the judgment. Appellant's second point on appeal is overruled.

The third point on appeal of this appellant is that it was error to render judgment against appellant for $1,800 'resulting directly' from the collection efforts because (a) there is no pleading to support the issue; and (b) no evidence as to the amount of Western Guaranty Loan Company's responsibility 'as distinguished from that of all, or any, of the other defendants jointly sued for the same damages.'

Appellee expressly pled that his action for damages is indivisible among the various defendants 'because it is impossible to divide the causation of * * * injuries among the defendants.' Appellee's testimony is in accord with his pleading. He testified that he didn't know which defendant caused his injury because 'it was just a blanket operation * * * It is like a buzz saw that hits a fellow. Could you tell which tooth bit into you? It is the same proposition * * *.'

Issue No. 26, the damage issue, inquired what damages, if any, resulted 'directly from such collection efforts, if any, of Western Guaranty Company.' The wording of the issue placed the burden on the jury of dividing the damages to the extent of allotting a certain amount to Western Guaranty Company as distinguished from other defendants. This was error. Appellee himself pled and the evidence showed that his damages were indivisible. Under the circumstances the issue should have inquired as to the entire damage suffered by appellee because of the efforts of all defendants whose collection efforts were wrongful. For a full discussion of this principle see Industrial Finance Service Co. v. Riley, Tex.Civ.App., 295 S.W.2d 498 (affirmed as to the question here involved in Tex., 302 S.W.2d 652); Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731. Appellant's third point on appeal is sustained.

Appellant's fourth point is that the court erred in overruling appellant's motion for instructed verdict because (a) its cause of action for damages had been satisfied and extinguished by settlements totaling $3,700 paid in by other defendants sued jointly in the same indivisible action, and (b) written releases had been made in connection with such settlements. In the alternative, appellant asserts that the court erred in refusing to credit the judgment against appellant with the amounts so paid by other defendants in settlement of appellee's claim against them.

We are unable to agree with appellant. The written settlement agreements with certain defendants expressly provided that appellee preserved and did not dismiss his suit against other defendants. Such an agreement did not operate as a release of the other defendants. 36 Tex.Jur. 824-826. The $1,800 damages found by the jury in this case is the amount found to have been caused purportedly by appellant Western Guaranty Loan Company alone. As we pointed out in our discussion of appellant's third point, there has been no finding of the entire amount of damages caused jointly by all the defendants. Obviously until the entire damage suffered by appellee has been ascertained, the amount of the settlements cannot be credited on the judgment for damages.

Furthermore, whatever sums other defendants may have paid in settlement of Dean's claims for usury and double usury penalties and for exemplary damages are not to be credited against whatever judgment Dean may recover for the entire indivisible actual damages suffered by reason of the combined excessive collection efforts of defendants. For each defendant loan company is answerable alone and separately for usurious interest received and for the penalty of double usurious interest and for such exemplary damages, if any, as may be found by the jury. Appellant's fourth point is overruled.

The fifth point on appeal is to the effect that the court erred in rendering judgment based on certain answers of the jury in connection with renewals and service charges on loans made prior to June 22, 1949 because the same related to matters barred by the two-year statute of limitations. Appellant says that the double usury penalty as computed by the court included sums of $10.20 paid by appellee on each of seven dates as listed in issue No. 2A. Six of these payments totaling $61.20 were made prior to June 22, 1949.

In a counterpoint appellee points out that the trial court pursuant to ...