57 S.W.2d 238 | Tex. App. | 1933
This appeal is prosecuted by Universal Credit Company, a corporation, from a judgment of the district court awarding a recovery against it in favor of Giles Ratliff in his capacity as administrator of the estate of D. R. Ratliff, deceased, of actual and exemplary damages for conversion of a Ford truck belonging to said estate. D. R. Ratliff, on August 1, 1931, purchased the truck involved in this case for the sum of $821.50. He paid $257.50 of the purchase price in cash, and agreed to pay the remainder in twelve monthly installments of $47 each, commencing September 1, 1931. He secured the payment of deferred installments by executing a so-called sales contract, which provided that title should not pass to him until all sums due thereunder were paid in cash; that maturity might be accelerated by the seller in various contingencies not necessary to recite; that in event of such acceleration, the seller might, without process or demand, enter any premises where said truck might be found, remove the same, and hold possession thereof without responsibility or liability. Broad powers of sale were also conferred on the seller by the terms of said instrument, and it was expressly stipulated therein that the rights of the seller thereunder should pass to his assignee. D. R. Ratliff paid the installments due on the 1st days of September and October, respectively. He died some time during the month of October. Appellee was duly appointed administrator of his estate, qualified as such January 11, 1932, and promptly returned an inventory of the property belonging thereto on the same day. Said truck was included therein. Appellee took actual possession of said truck. Shortly thereafter a representative of appellant called on appellee and demanded that he store said truck, and informed him that if he did not store it, he, the representative, would do so himself. Said representative then went to the residence of appellee, and, in his absence, seized said truck and started to remove the same. Appellee arrived before he had gotten the truck off the premises, and earnestly protested against such seizure and removal, but without avail. Said representative stored the truck in a garage at Glen Rose. Appellant thereafter, as assignee of said contract of purchase, presented to said administrator its claim for the balance due thereon, and for establishment of its lien on said truck. He rejected the same on the ground that appellant had converted the truck and had damaged the estate in a sum in excess of the amount due, as shown by said claim.
Appellee, in his capacity as administrator, then filed this suit against appellant, and alleged that the acts of appellant's representative in the premises constituted a conversion of said truck and sought to recover actual and exemplary damages therefor. Appellant alleged that it had taken peaceable possession of said truck, and stored the same to preserve its value pending administration on the estate of the deceased. It pleaded the terms of said contract of purchase in justification of its acts, and denied such conversion. It also pleaded its debt in reconvention, and sought recovery for the amount thereof, with foreclosure of lien.
The case was tried to a jury. Appellant, at the close of the testimony, requested an instructed verdict, which was refused. The case was then submitted on special issues. The jury found in response thereto, in substance, that:
(1) The reasonable market value of said truck was $500.
(2) The value of the use of said truck to appellee as administrator for the purpose of marketing farm products belonging to said estate was $100.
(3) Appellant's representative, in taking said truck from the possession of appellee, acted willfully and maliciously.
(4) Exemplary damages in the sum of $200 should be awarded.
The court deducted from the aggregate sums awarded appellee by the findings of the *240 jury the amount of appellant's claim against the estate for unpaid purchase money for said truck, and rendered judgment in favor of appellee as such administrator, and for the benefit of said estate against appellant for the remainder in the sum of $259.50, together with costs of suit.
Appellant complains of the action of the court in submitting issue No. 2, wherein the jury were asked to find the value of the use of said truck to appellee as administrator for the purpose of marketing farm produce belonging to the estate, and in including the finding of the jury that the value of such use was $100 in the judgment rendered against it herein. It contends in this connection that the proper measure of appellee's damage was the value of the truck at the time of conversion, with legal interest thereon to the time of trial, and that the value of the use thereof could not be substituted for such interest as an element of his damage. Appellant made no such objection to the submission of said issue, nor did it present such contention as ground for modification or correction of the judgment in its motion for new trial. Such contention is presented for the first time in the brief filed by appellant in this court. It *241
cannot therefore constitute ground for reversal. Our courts have, however, in many cases, allowed as an element of damages for conversion the value of the use of the property from the date of conversion to the time of trial, in lieu of interest, when such allowance was necessary to properly compensate the injured party for the loss sustained. Barr v. White (Tex.Civ.App.)
Appellant complains of the action of the court in submitting special issue No. 3, wherein the jury were asked to find whether the taking of the truck from appellee's possession by appellant's representative was done willfully and maliciously; in accepting the affirmative finding of the jury thereon, and in including the sum of $200 awarded by the jury as exemplary damages, in the judgment rendered against it herein. It contends in this connection that the testimony was insufficient to justify the submission of the issue of willful and malicious taking, and to support the affirmative finding thereon which the jury returned. The court instructed the jury in connection with the submission of said issue as follows: "By the term `willfully and maliciously' is meant the intentional doing of a wrongful act without just cause or excuse; that is, if an act is intentionally done without just cause or excuse for believing it to be right or legal, then such act is willfully or maliciously done."
The testimony shows that appellant was advised by letter from appellee's attorneys about the middle of December, 1931, that appellee had made application for appointment as administrator of his father's estate, and that a hearing thereon was expected in about two weeks. Appellant replied thereto demanding that appellee pay the past-due installments, and personally guarantee the payment of the remainder of the debt, or, in the alternative, that he place the truck in storage. In a subsequent letter appellant waived its demand that appellee personally guarantee the payment of its debt, but demanded that the truck be immediately placed in storage, and declared its purpose to contest appellee's appointment unless he did so. Appellee's attorneys advised appellant by letter dated January 19, 1932, of appellee's appointment and qualification as administrator, asked it to present its claim according to law, and assured it that such claim would be allowed and paid in due order as soon as possible. Appellee testified that shortly thereafter he was approached by appellant's representative, Halla, in the city of Granbury; that Halla asked him if he had the truck there and he told him no, that it was at his home; that Halla said: "I might want to look at it in a few days to ascertain and report its condition"; that Halla remarked in that connection that appellee seemed to be a pretty nice fellow; that he had lots of trouble with some people; and that one fellow, when he went to get his car, got mad and the judge gave him thirty days in jail. Appellee assured him that he didn't see any use of having trouble as he intended to pay as soon as the court ordered him to do so. He further testified that about an hour later Halla approached him and said that he had talked with appellant by phone and had been instructed to store that truck; that he remonstrated and said he had a good shelter for it at home; that Halla peremptorily ordered him to take it to Lane Brothers Garage and leave it until the estate settled for it; that he stated in reply that he was depending on the truck to haul the peanuts and hay aforesaid to market in, and that storing would ruin him; that Halla replied that he, appellee, would have to store the truck because the company ordered him to do it; that he again demurred, and Halla said he would have to store the truck if appellee didn't, and that he forbade Halla to take the truck; that Halla asserted that appellee had nothing to do with the truck, it belonged to his father and he was dead. Halla, in leaving, indicated *242 that he was going to Stephenville. The testimony shows that, instead of doing so, he secured an assistant, went immediately to appellee's home, entered his premises and located the truck; that he found it locked and demanded that appellee's wife surrender the key to it; that she was unable to find it; that he then disconnected the wiring from the lock and rearranged it so as to start without a key. Appellee testified that he arrived at home before Halla got the truck off his premises; that he protested vigorously, and insisted that he was under bond for the safekeeping of said truck; that Halla announced he was going to take the truck anyway, and kept on working to get it started. Halla was a trained athlete. Appellee, angered by Halla's defiant attitude and actions, and apparently deeming himself helpless to prevent the unlawful and forcible invasion of his possession by physical encounter, went to the house after his gun, but his wife dissuaded him from using it. Halla and his assistant got the truck going about that time, and immediately left with it. Though the actual seizure was made by a mere employee of appellant, we have in this connection set out the circumstances thereof, because of appellant's insistence in its brief that neither the acts of its credit manager which culminated in its peremptory order to such employee to make such seizure, nor the acts of such employee in executing such order, raise an issue of willful and malicious taking, as that term is applied in determining the propriety of awarding exemplary damages.
Appellant does not assail the definition of the words "willful and malicious" as given the jury by the court in his charge. Neither does it contend that a willful and malicious taking by it through its agent and representative, Halla, would not justify an award of exemplary damages. The charge of the court in this case, so far as the issue of exemplary damages is concerned, is substantially in accord with the rule expressed in Evans v. McKay (Tex.Civ.App.)
Appellant limits its contention in this connection to an insistence that the evidence is insufficient to show that its intentional and wrongful taking of the truck from the possession of appellee was without just cause or excuse for believing such action to be right or legal. More specifically stated, it contends that the testimony shows that such taking was under a mistake of law, and in the assertion of a supposed right to do so, and without any actual wrongful intention. The testimony above recited shows that appellant was advised at the outset of the controversy over the collection of its debt and the custody of the truck pending such collection, that the original purchaser of such truck was dead, and that appellant had filed an application for appointment as administrator. The testimony further shows that it was subsequently advised that said appointment had been made, and that appellant had duly qualified as such; that appellant, during all of such time, persisted in a series of unwarranted and oppressive demands, all of which finally culminated in its sending Halla with imperative instructions to seize said truck and deprive appellee of its possession, which instructions he executed in the manner above shown. The testimony raised an issue of willful and malicious taking by the express orders of appellant's credit manager; and such issue was therefore properly submitted to the jury for determination. The affirmative finding of the jury thereon is not without support in the evidence. Gordon v. Jones,
The judgment of the trial court is affirmed.