*1 738 Leyva, 438 Company Mill v. Feed
Pоston (14th LINCOLN-MERCURY, (Tex.Civ.App. 366 S.W.2d C. O. MORGAN — Houston McDonald, INC., Appellant, 1969, 1 dism’d); writ Dist.) 4.48; Practice, v. Terrell Sec. Texas Civil v. (Tex.Civ 910 351 Vandergriff, S.W.2d ux., William C. YANCEY ; 1961, writ) Southern .App. — Amarillo Appellees. Rogers, 342 S.W.2d Company v. Insurance 1961, no Antonio (Tex.Civ.App. 135 — San State, S.W.2d v. writ); Cowan of Civil Court 1962, dism’d); writ Fort Worth. (Tex.Civ.App. — Austin Wilson, 348 S. Company v. Drilling Beard 22, 1973. 1961, (Tex.Civ.Aрp. W.2d — Eastland Opinion July Supplemental dism’d). writ July 20, addition, the motion for the extension file controverting plea good failed to show cаuse. It stated that the execution appropriate
affidavit an officer of the
corporation could not be obtained due to
the inability to locate they of them as
were scattered in various locations.
then attorney record, stated that “the himself aware of
facts and circumstances involved and able thereof,
to make an Affidavit sign as
agent corporation” for such to the contro
verting affidavit. the affidavit Both
the motion for extension to file the contro plea
verting and the affidavit to the con plea
troverting were then signed the at
torney attorney record. Where
agent apparently available to execute time, good affidavit at cause was good
not shown. It also failed to show why enlargement
reason the motion for an file within which to thе controvert
ing plea could not have been filed within day period following
the ten December required by In 5. Southern supra. Compаny Rogers, There
surance develop
is no need for a remand to further
the facts. plea overruling shown in
Error privilege, ef- and rendered to the is transferred to the cause
fect County. Taylor
District Court
agreement the defendant warranted 1,000 thirty days thе car for miles with motor, fifty-fifty warranty on transmis- pro- only rear-end and and further be done in vided that the work must shop defendant. Plaintiff William Yancеy C. returned car the defend- repairs minor four five ant for some prior returned it for time he repairs Repairs August were made at that time and defendant volun- tarily plaintiff turned the car over to Yancey when William at a time the de- repairs fendant claims the bill for 15, 1971, August totaled which $188.55 plaintiffs defendant claimed owed one-half fifty-fifty warranty $94.28 agreement. any part denied owing
Plaintiffs unpaid bill. This bill $94.28 Janu- ary 17, when the William C. Yancey Mercury Cougar returned the 1968 shop defendant’s for additional me- work, chanical a “ping” because knock in the motor. On this occasion the upper had the joints on the rocker arm on the front end of the automobile lu- for bricated which he the defendant pan top removed $6.50. push and a broken rod was found. The defendant claims that this re- Fillmore, Lambert, Purtle, Farabee & pair accomplished charged and work was Clyde Fillmore, and Falls, ap- Wichita for plaintiffs automobile pellant. impounded did beсause Henry Anderson, pay claim bill. Plaintiffs Hughes, Malcolm L. J. Falls, impounded pay appellees. Wichita car was for their failure to bill. $94.28 ' favorably answered all issues and the trial court entered against defendant
LANGDON, Justice. damages, representing actual This is a suit William C. automobile, value of the converted wife against Morgan C. O. Lincoln-Mercu- $17,500.00exemplary damages. ry, Inc., seeking to recover аs well appeal This from that based for the conversion fifteen error. Mercury their automobile. Cougar purchased Plaintiffs autоmobile affirm remittitur. from the defendant on July or about 1971. At purchase parties be referred to as in the stamped was entered into there on the trial points complain sup-
The first ten of the ac- evidence or insufficient evidence to port overruling’ finding. tion the court in the defend- discovery ant’s motion for certain tran- telephone scribed conversations these Under (Phillips argues brief “The verdict *3 Brown) employees two of the $17,500.00 exemplary damages was exces and between the and the $12,500.00. sive in the amount of at leаst
defendant, impounding concerning If it are be determined that the question by the de- of the automobile in exemplary damages, entitlеd to it should fendant. $5,000.00, not exceed two and one- by half damages awarded each first ten overrule of these We the jury.” points. in We are with the defendant taped The conversation point on his eleven. Based ex- our Phillips, one of the amination of entire record in this cause defendant, employees played of was of the sum that in de jury entirety permitting its without $17,500.00 exemplary damages is exсessive pres tape fendant to hear outside by $12,500.00. of of the sum amount argument jury. of ence Defendant’s damages exemplary this thе facts in prevented to opportunity that this him an $5,000.- case not should exceed the sum of prevent object portions inadmissible tape jury is by heard no involving also untenable. This is so because no Points twelve thirteen particular portion tape of the to are evidence and insufficient evidence complaint appeal. find any on this We necessity see no set overruled. nothing in thе indicate concerning which would testimony record forth the in detail hampered that the defendant in di say the evidence. suffice that should any or adequate support rect cross-examination because jury had evidence transcription of a lack of the conversa finding exemplary damages. a tape be tions. The conversation played
tween and defendant was by The dеfendant its fourteenth before the does not re record contends fifteenth transcription that a flect refusing erred in to include in thе defini phone per calls than was available other in Special in tion of malice Issue No. 8 an plain haps possessiоn of some notes in the an act deemed to struction that attorney. tiff’s If with re the court erred simply unlawful malicious because it is spеct to in these first the matters involved and in that wrong, instructing jury ten such error harmless. posses authorized to retain 434, Texas Rules of Civil Procedure. of a vehicle the amount due me paid, and that if a same has been It was subsequent trial of this voluntarily relinquishes case that Rule R. pоsses of a he loses the by Supreme amended sion and it cannot be restored. February effective points fourteen and fifteеn. We overrule eleven, Points twelve and thirteen assert in entering error Special inquired Issue No. plain- impounding of whether or not thе reasons that for the defendant, it if by the tiffs’ automobile there is such amount is excessive and impounded, suggested original opinion, tur as wаs so “was done with malice in our appellees’ rehearing having term is hereinafter defined ?” motion for day overruled, been is ordеred “as defined malice used remittitur, as reduced ill-will, charge, is bad or evil mo- meant be affirmed. tive, gross indifference to rights others will amount a willful act, intentionally done with- wanton just
out or excuse.” fur- definition the the same
ther “Whenever vehi- instructed repaired a mechanic with
cle shall be *4 material,
labor autho- such possession rized vehicle to retain such RAMSAY, Appellant, Wayne same the amount due on shall be discharged. event a me- relinquishes voluntarily SANTA MEDICAL CENTER ROSA al., Appellees. right, he loses such not be such can restored.” provides R. C. Court of Civil submitting special “In issues San Antonio. explanatory shall such submit instructions 1973. legal definitions of as shall such terms Sept. 12, necessary properly to enable the
pass upon a verdict is- and render on such
sues, charge instances shall subject objection to the
general charge.” given by
In our the instruction in connection with No. 8 Issue
keyed problem involved. proper essential to submission essential en- issue. It was because it properly pass upon
abled jury to the is-
sue. T.L.R. See is af- subject filing of a
firmed remittitur $12,500.00by fif- within hereof, days
teen from the date otherwise and remanded to
trial court.
Affirmed, subject to remittitur
filed.
SUPPLEMENTAL having writing, filed in
Appellees rehearing, the remitti-
to their motion