King v. Associates Commercial Corp.

744 S.W.2d 209, 1987 Tex. App. LEXIS 8843, 1987 WL 1673
CourtCourt of Appeals of Texas
DecidedNovember 17, 1987
Docket9543
StatusPublished
Cited by25 cases

This text of 744 S.W.2d 209 (King v. Associates Commercial Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. Associates Commercial Corp., 744 S.W.2d 209, 1987 Tex. App. LEXIS 8843, 1987 WL 1673 (Tex. Ct. App. 1987).

Opinions

PER CURIAM.

Joe King and his wife appeal the judgment of the trial court in a suit concerning the repossession of a truck. Associates Commercial Corporation, appellee, brings a cross-appeal. Because there is no evidence to support Associates’ liability, we reverse the judgment of the trial court.

On July 3, 1982, the Kings purchased a 1982 Freightliner truck from Brodnax Truck and Trailer Company in Tyler. They made a down payment of $22,000.00; the remainder of the sale price was financed through a security agreement with Brod-nax. The security agreement contained an assignment of Brodnax’s rights, title and interest to Associates Commercial Corporation. The first payment was due August 3, 1982. The Kings made only one payment, which they made on September 4, 1982.

Beginning on August 10, 1982, Associates, or others acting for them, made numerous attempts by telephone to contact the Kings concerning payments past due on the truck. In the latter part of October 1982, the Kings received a visit from Charles Beasley, district manager for Associates. Joe King testified that he told Beasley that he had a job for the truck and did not want to relinquish the truck; he wanted to work and pay for it. Beasley testified that King told him that he was out of work and had no money and that he would burn the truck before giving it back to Associates.

In November a man who identified himself as Tommy Ponder telephoned Joe King, offering him a job in San Antonio. Ponder told King that he would arrange for him to stay at a motel in San Antonio. The telephone number given by Ponder was the same as the office telephone number of Mando Romano. Bexar Recovery Bureau, the repossession agency hired by Associates to repossess the truck from the Kings, consisted of Romano and one other person.

The Kings drove the truck to San Antonio, arriving on November 22, 1982. They went to the previously designated Motel 6, where a room had been prepaid for them. Later that evening, a man came to their room, saying that they had forgotten their television key, although the Kings already had their key. He told King to park the truck in front of the motel. King refused to do so.

Deborah King woke up the next morning about five, looked out the window, and noticed that the truck was gone. She immediately woke her husband and told him. They then noticed that the door to their motel room, which opened in, had been tied to the outside railing with a rope. Joe King tried to force the door open so that he could cut the rope with his pocketknife. His wife was terrified, thinking the people who had done it might still be outside. After a short time, Joe King opened the door enough to cut the rope.

[211]*211The Kings went to the motel office to tell the manager. When the manager told them that he knew nothing about it, Joe King reported the incident to the police.

The Kings originally sued Associates, Be-xar Recovery Bureau and Tommy Ponder. Motel 6 and Mando Romano were later added as defendants. The jury found in effect that the repossession had been induced by fraud on the part of Bexar. The jury also found that Bexar had wrongfully repossessed the truck, that Bexar was an agent of Associates, that Associates had acted with gross negligence in hiring Be-xar, and that the Kings’ failure to return the truck to Associates when requested to do so was contributory negligence which caused twenty percent of the Kings’ dam-, ages. In addition, the jury found that Motel 6 had provided a reasonably safe place for the Kings to stay. The jury then found that Joe King should receive $10,000.00 for past physical pain and mental anguish and $60,000.00 for lost earnings, and that Deborah King should receive $5,000.00 for past physical pain and mental anguish and $1,000.00 for medical expenses. The jury assessed $110,000.00 in punitive damages against Bexar and $150,000.00 against Associates.

In its judgment, the trial court disregarded the finding of gross negligence on the part of Associates because there was no evidence to support that finding. Therefore, it also disregarded the finding of punitive damages against Associates. The court entered judgment for the Kings in the amount of the actual damages found by the jury reduced by twenty percent. It also awarded the Kings the punitive damages assessed against Bexar.

The Kings raise points of error alleging that the trial court erred: (1) in disregarding the jury’s finding that Associates was grossly negligent in hiring Bexar to repossess the truck from the Kings, and consequently, in refusing to award the exemplary damages found by the jury against Associates; (2) in failing to find Associates jointly and severally liable for the exemplary damages awarded against Bexar; and (3) in rendering judgment based on the jury’s finding of the Kings’ contributory negligence because there was no evidence or insufficient evidence to support that finding and because contributory negligence is not a defense to the Kings’ cause of action. Due to the nature of the cross-points of error raised by Associates and our disposition of certain of those cross-points, we do not reach the points of error brought by the Kings.

Associates raises numerous cross-points of error. It groups these cross-points into three main areas: the employment relationship between Associates and Bexar, the jury’s findings that the repossession of the truck from the Kings was wrongful, and damages.

Associates argues that the trial court erred in overruling its motion to disregard the jury’s answer to Special Issue No. 11 because the evidence established that Be-xar was an independent contractor as a matter of law. Special Issue No. 11 inquired:

On the occasion in question was Bexar Recovery Bureau acting as an agent or employee of Associates Commercial Corporation, or were they acting as an independent contractor?
“Agent or Employee” means a person in the service of another with an understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result to be accomplished.
“Independent Contractor” means a person who, in the pursuit of an independent business, undertakes to do specific work for another person, using his own means and methods without submitting himself to the control of such other person with respect to the details of the work, and who represents the will of such other person only as to the result of his work and not as to the means by which it is accomplished.
If you find from a preponderance of the evidence that they was [sic] acting as an “agent or employee” you will answer “agent or employee”; otherwise, you will answer “independent contractor”.

[212]*212The jury found that Bexar was an agent of Associates.

In reviewing a no evidence point, we consider only the evidence tending to support the finding, viewing it in the light most favorable to the finding, giving effect to all reasonable inferences therefrom, and disregarding all contrary or conflicting evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400 (Tex.1981). An insufficient evidence point requires us to consider and weigh all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

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Bluebook (online)
744 S.W.2d 209, 1987 Tex. App. LEXIS 8843, 1987 WL 1673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-associates-commercial-corp-texapp-1987.