This suit for conversion of household furniture was brought by Claude D. Neeley and wife, Beverly June Neeley, against Southwestern Investment Company. The first time this case was before us, we reversed the judgment and remanded the cause for a new trial.
We granted the application of Southwestern Investment Company, hereinafter called S.I.C., upon its point that the court of civil appeals erred in suggesting a re-mittitur of $3,800.00 of the $4,500.00 awarded by the trial court as actual damages while simultaneously affirming the $20,000.00 awarded as exemplary damages in the trial court. We have carefully considered the other points and arguments presented by the parties, but we are still of the opinion that this is the only point that we need to discuss on this appeal.
In April 1962, the Neeleys executed a note for $1,490.16 payable to S.I.C. in 24 monthly installments of $62.09 each. This *707 note was secured by a chattel mortgage that listed specific items of furniture belonging to the Neeleys at that time. In March 1963, Mrs. Neeley desired to pay off this note and another note the Neeleys had made to S.I.C. She telephoned the S.I.C. office and was told that $837.01 would pay off the two notes at that time. The next day, Mrs. Neeley went to the S.I.C. office and argued.that $837.01 was' too high a payoff figure, but she finally relented and gave S.I.C. a check for this amount marked “In full of account.” S. I.C. accepted and deposited this check. Several months later, S.I.C. discovered that one of the previous payments had mistakenly been credited twice to the Neeley account and thus the payoff figure quoted Mrs. Neeley was $62.09 too small. Subsequently, S.I.C. contacted the Neeleys several times, but the Neeleys refused to pay the $62.09 since they believed thé account had been paid in full.
In early 1964, the Neeleys moved their furniture to a house in Wichita Falls which they rented from one Lambert. In the summer of 1964, they left the furniture in the Lambert house and went to live with Mr. Neeley’s parents in Strawn, Texas. S.I.C. found out where the furniture was being stored and contacted one Brumbelow, a used furniture dealer. After Brumbelow had personally viewed the furniture, Scott Allred, a collection manager for S.I.C., went to the county clerk’s office and made a list of the furniture covered by the chattel mortgage. Allred, acting for S.I.C., gave this list to Brumbelow, and sold him all the furniture listed for the sum of $62.-09. Brumbelow then went to the Lambert house and apparently took possession of all the furniture there, which included a number of items not listed in the chattel mortgage.
At the retrial, Mrs. Neeley testified that all of the furniture in the house was worth approximately $4,500.00. Mr. Neeley testified that all of the furniture in the house was worth something between $4,500.00 and $5,000.00. On crossexamination by counsel for S.I.C., Brumbelow testified that the furniture on the list he purchased from S.I.C. was worth from $700.00 to $800.00. The court of civil appeals held that S.I.C. converted the property which was described on the list and which it sold to Brumbelow, but held further that S.I.C. was not responsible for Brumbelow’s taking the other pieces of the Neeleys’ furniture. Accordingly, the court of civil appeals ordered a remittitur of all actual damages down to the sum of $700.00 which was the undisputed value of the items included on the list.
By accepting a remittitur that reduced actual damages from $4,500.00 to $700.00 while leaving exemplary damages of $20,-000.00, the court of civil appeals permitted the ratio between exemplary damages and actual damages to go from approximately four to one to approximately twenty-eight to one. It is the correctness of this action that we are now questioning.
In finding that exemplary damages were not excessive in this case, the court of civil appeals quoted from Mayer v. Duke,
It has long been the law in Texas that the amount of exemplary damages should be reasonably proportioned to the actual damages found. Fort Worth Elevators Co. v. Russell,
We now hold that when a court of civil appeals suggests a remittitur of a substantial portion of the actual damages found by a jury, the court of civil appeals is under an obligation to give consideration to the ratio between exemplary and actual damages as established by the jury in passing on the further question of excessiveness of exemplary damages. Particularly is this true when the jury and trial court have determined actual damages on the premise that the defendant has wrongfully converted all the items in a building and the court of civil appeals has fixed the maximum permissible actual damages on the basis that the defendant has wrongfully converted only some of the items in the building. Commercial Credit Corp. v. Patterson,
This is not to say that a court of civil appeals must rigidly adhere to the ratio as found by the fact finder whenever the court of civil appeals suggests a remittitur of some portion of actual damages. We are not to be understood as holding that the ratio between exemplary damages and actual damages found by the jury, to the exclusion of every other consideration, is of controlling importance in estimating the exemplary damages after a remittitur of a portion of actual damages. However, in addition to considering the other relevant factors, a court of civil appeals should also take into consideration the ratio between exemplary damages and actual damages as found by the jury, if the court of civil appeals has decided to order a substantial reduction in the actual damages awarded. Thus, although this issue was not faced squarely in Higginbotham v. O’Keeffe,
The only case that we have found that directly confronted the problem now before us is Flame Coal Co. v. United Mine Workers,
A determination of excess by a court of civil appeals is one of fact and, as such, is not reviewable by the Supreme Court. Wilson v. Freeman,
The judgment of the court of civil appeals is reversed, and the cause is remanded to that court for further consideration in accordance with this opinion.