287 S.W.2d 320 (Tex.Civ.App.

Docket Nº:3313.
Citation:287 S.W.2d 320
Party Name:The INSURANCE COMPANY OF TEXAS, Appellant, v. George C. STRATTON et al., Appellees.
Case Date:January 26, 1956
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 320

287 S.W.2d 320 (Tex.Civ.App. —Waco 1956)

The INSURANCE COMPANY OF TEXAS, Appellant,

v.

George C. STRATTON et al., Appellees.

No. 3313.

Court of Civil Appeals of Texas, Waco

January 26, 1956

Rehearing Denied Feb. 16, 1956.

Page 321

Gullett & Gullett, Denison, J. Alex Blakeley, Dallas, for appellant.

Joe G. Rollins, Sherman, for appellees.

HALE, Justice.

Appellee brought this action on a policy of insurance covering a 1952 model Chevrolet automobile insured by appellant. The declarations on the first page of the policy recited in substance, among other things, that the name of the insured was Mrs. Dora Ella Nessoy; that the policy period was for two years from the date the policy was issued; that the coverages therein provided were for damage to the described automobile resulting from fire, theft, windstorm and collision or upset; that the insured automobile was encumbered in the amount of $1,462.24, such indebtedness being payable in twenty-four monthly installments of $60.94 each; that any loss under the coverages provided for should be payable as interest may appear to the named insured and State National Bank of Dension, Texas; and that 'except with respect to bailment lease, conditional sale, mortgage or other encumbrance the named insured is the sole owner of the automobile.' The concluding paragraph on the last page of the policy contained the following recitation: 'By acceptance of this policy the named insured agrees that the statements in the declarations are his agreements and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance.'

Appellees sought damages under the collision coverage provided by the policy. Appellant defended against the suit upon the ground that Mrs. Nassoy, the named insured, was not the sole owner of the automobile and by reason thereof it was not liable to appellees. The case was submitted to the court below upon a written stipulation of facts and resulted in judgment of $1,340 for appellees, that being the agreed amount of damages recoverable, if any. The agreed facts show that appellant is liable to appellees for the recovery sought unless the named insured was not the sole owner of the automobile and unless that condition constituted a valid defense to the suit under the terms of the policy.

It appears from the stipulation of the parties that on January 9, 1954, George C. Stratton, an automobile dealer in Denison,

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sold and assigned to Mrs. Nassoy the 1952 model Chevrolet automobile, as evidenced by proper certificate of title. The consideration for the sale was $250 cash and the execution by Mrs. Nassoy of her promissory note payable to the order of George C. Stratton in the sum of $1,462.24, the payment of the note being secured by a chattel mortgage executed by Mrs. Nassoy on the automobile. Stratton sold and assigned the note and chattel mortgage to the State National Bank of Denison. As a part of the transaction by which the purchase of the automobile was being financed,...

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