Wright v. E-Z Finance Co.

• Decision Date: 26 March 1954
• Docket Number: E-Z,No. 14737,14737
• Citation: 267 S.W.2d 602
• Parties: WRIGHT v.FINANCE CO. et al.
• Court: Texas Court of Appeals

Page 602

267 S.W.2d 602

WRIGHT v. E-Z FINANCE CO. et al.

No. 14737.

Court of Civil Appeals of Texas, Dallas.

March 26, 1954.

Motion to Dismiss Overruled Feb. 12, 1954.

Rehearing Denied April 30, 1954.

Edward C. Fritz, Dallas, for appellant.

Mays & Lea, H. B. Houston, Alto B. Cervin, W. S. Barron, Jr., Ed C. Stearns and R. D. Hardy, Dallas, Coleman Gay, Austin, amicus curiae, for appellees.

CRAMER, Justice.

This action was filed by E. Roy Wright against W. Lee Moore, Jr., individually and as administrator of the Estate of W. Lee Moore, Sr., deceased, as partners; and under Rule 28, Vernon's Texas Rules of Civil Procedure, against General Finance Co., E-Z Finance Co., Texas State Finance Co., and Acme Company Loans, being unincorporated companies or partnerships operated by the Moores; and against Citizens Service Co., unincorporated, owned by Paul Luther, and Reserve Loan Co., unincorporated, owned by Mrs. A. B. Luther, against each of the Luthers, individually, and against V. L. Ware who operates a small loan business in his own name.

The pleading shows no direct connection between the Moores and the Luthers or the Companies they each operated other than that it is alleged that they conspired to charge Wright usurious interest on loans made to him and that all, except Ware, were in a conspiracy to injure Wright by the use of harsh and persistent collection methods. The pleadings assert two causes of action,-one a statutory action for penalties for usurious interest collected from Wright; the other for damages actual and exemplary for mental anguish and consequent physical suffering therefrom, intentionally, wantonly, and maliciously inflicted on Wright and his wife by the persistent and harassing communications by each and all appellees (except Ware) in their efforts to collect. Ware was sued only for usurious penalties.

The trial court overruled the motions of various parties to sever, and the case proceeded to trial as to all parties and after hearing all evidence the trial court directed a verdict in favor of Bankers Health & Accident Company, overruled other motions and submitted the cause to the jury on some 251 special issues which will not be summarized herein except those necessary to pass on the questions raised on this appeal. Moore individually and in his representative capacity for the companies operated by him and his deceased father made a motion for judgment on the verdict, and subject thereto moved the court to disregard the findings of the jury and enter judgment for each of them. Such motions were overruled, exceptions reserved, and the trial court, after a suggested remittitur was declined, rendered judgment on the verdict as follows: Against Ware for $403.67; against the Luthers and Reserve Loan Service for $1,358.12; against the Luthers and Citizens Service Co. for $1,366.90; against General Finance Loans and W. Lee Moore, Jr., individually and as independent executor, etc., jointly for $1,150; against General Finance Loans, Moore, Jr., and the Moore, Sr., Estate for $1,150 plus $57 on a second count in the pleading; against E-Z Finance Co. and Moore, Jr. and his father's estate for $1,150 plus $19 on a second count; against Acme Company Loans, Moore, Jr. and his father's estate for $1,150; against Texas State Finance Co., Moore, Jr., and his father's estate for $1,150; and denied Ware a recovery on his cross-action.

On motion for new trial this judgment was, by Judge Peurifoy who succeeded Judge Dixon the trial judge, set aside and a new judgment was entered awarding Wright a total of $403.67 against Ware and a total of $197.40 against the Luthers d/b/a Reserve Loan Service; a total of $120 against the Luthers d/b/a Citizens Service Co.; a total of $57 against General Finance Loans, Moore, Jr., and his father's estate; a total of $19 against E-Z Finance Co., Moore, Jr., and his father's estate; denied all other relief to all parties; and taxed the costs 1/3 to Wright and 2/3 to defendants. Motion for new trial having been overruled, Wright duly perfected this appeal ¹.

Appellant Wright briefs five points of error, in substance: (1) In striking from the judgment damages for mental and physical suffering; (2) error in failing to render judgment for exemplary damages awarded by the jury; (3) error in failing to at least render judgment for the exemplary damages not ordered to be remitted; (4) error in failing to render judgment against appellees General Finance Loans, E-Z Finance Company and W. Lee Moore, Jr., for double damage for usury instead of single damages; and (5) error in charging 1/2 of the costs to Wright.

The Luthers' three counter-points are in substance: (1-2) Error in not dismissing this cause for the reason that (1) Wright's petition on its face shows a misjoinder of parties and causes of action, and (2) the only causes, if any, alleged are unrelated acts for statutory usury penalties in amounts below the district court's jurisdiction; (3) error in rendering judgment for usury in any amount because the evidence shows that in each transaction appellees were acting only as appellant's agent in procuring a loan from another party not joined in this suit.

Points 1, 2, and 3 will be considered together. They involve questions of Wright's right to recover actual and exemplary damages and the right of the trial court to reduce the amount of the verdict over his (Wright's) protest and refusal to remit. Wright contends that the right to actual and exemplary damages exists and the trial court must enter judgment thereon absent remittitur. Appellees who made the loans in question of course each in counterpoints take the contrary view.

The jury by its verdict found damages separately as against each of the appellees in the following amounts for mental and emotional pain and suffering in the past and in the future $700; for Wright's physical illness in the future $50; for Mrs. Wright's loss of time from work $40; for Wright's mental and emotional pain and suffering $350; for Mrs. Wright's physical illness $10; exemplary damages to Wright $3,000; exemplary damages to Mrs. Wright $2,000: or a total of $6,150 against each of the trade-name defendants and their owners, totaling as to the six defendants, $36,900.

The right to damages exists only when the facts necessary to sustain them exist and are shown by the evidence in the record. Appellees rely on the opinion of our Supreme Court in Harned v. E-Z Finance Co., 254 S.W.2d 81. The court there held that the Harned action was 'for mental suffering; there can be no recovery for mental suffering where there is no physical injury, no injury to property, no other element of actual damage, and no independent tort. (2) The Courts which allow recovery in similar cases have created a new tort. (3) Texas cases do not support the action. (4) The collection or attempted collection of usurious interest is neither a crime nor a tort. (5) Public policy is against opening the door to such claims; mental suffering is too hard to establish; fictitious and trivial litigation would follow. (6) The common law gives no remedy, and if one is to be provided it must be done by the Legislature.' Quotation is from 31 Texas Law Review, p. 473.

Appellant here asserts that our present case has two distinguishing features which make the Harned case inapplicable here. Here there were physical as well as mental results from the acts of appellee Loan Company. Too, the rule in Texas, taken from the common law, is that where personal injury as well as mental suffering results a recovery may be had for exemplary damages. In other words, exemplary damages may not only be the basis of a recovery for mental suffering as a result of and following physical injury, but also where the mental condition thereafter or as a part thereof results in physical manifestations and injury.

In Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618, our Supreme Court speaking through Chief Justice Gaines on this point stated:

'After a very careful consideration of the petition, we are of the opinion that its allegations show a cause of action. We have found no exact precedent for such an action, but that is no sufficient reason why an action should not be sustained. That a physical personal injury may be produced through a strong emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation, in an action at law, when the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause and the injury, but if it can be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had.'

The Hill v. Kimball case, as shown by Shepard's Texas, Citations, is followed or distinguished in innumerable cases, but it has never been questioned or overruled. Noteworthy here is an article on that case in 12 Texas Law Review, page 1. The evidence here raises the issue of physical injury resulting after and from mental excitement caused by the acts of the several agents and owners of the companies involved here. In our opinion, therefore, Harned v. E-Z Finance Co., supra, relied on by appellees, is clearly distinguishable from this case, in that here there was physical injury as a direct result of the mental condition brought about by appellees' acts; and the trial court in the last judgment erred in ignoring the exemplary damage issue, absent a remittitur by appellant. The judgment should have been for the full amount of the verdict on exemplary damages or set aside and a new trial granted.

Notwithstanding above holding, however, we are of the opinion that the trial court in rendering judgment for the balance which should have remained after remittitur, if such remittitur had been acceptable to appellant, discloses that the...