Automobile Underwriters' Co. v. Rhinehold

• Decision Date: 05 December 1923
• Docket Number: (No. 7045.)
• Citation: 255 S.W. 1116
• Parties: AUTOMOBILE UNDERWRITERS' CO. v. RHINEHOLD.
• Court: Texas Court of Appeals

255 S.W. 1116

AUTOMOBILE UNDERWRITERS' CO. v. RHINEHOLD.

(No. 7045.)

Court of Civil Appeals of Texas. San Antonio.

December 5, 1923.

Rehearing Denied January 2, 1924.

Appeal from Bexar County Court; McCullom Burnett, Judge.

Action by the Automobile Underwriters' Company against F. H. Rhinehold. Judgment for defendant, and plaintiff appeals. Affirmed.

Lewright & Lewright, of San Antonio, for appellant.

T. M. West, of San Antonio, for appellee.

FLY, C. J.

Appellant sued appellee to recover on four promissory notes executed by him, amounting in the aggregate to $180, and to foreclose a chattel mortgage on a Jordan automobile executed to the San Antonio Cadillac Company; the consideration for said notes and mortgage being the sale to appellee of said Jordan automobile. It was alleged that the notes and mortgage had, for a valuable consideration, been transferred and assigned to appellant. The reasonable value of the automobile was alleged by appellant to be $450. Appellee admitted his liability for the $180, evidenced by the promissory notes, and pleaded a cross-action against appellant on the ground that it had insured him against theft of the automobile in the sum of $500 and the automobile had been stolen, and he prayed for judgment in the sum of $320, interest and attorney's fees. The cause was tried without a jury and judgment was rendered in favor of appellee for $306, being the difference between what was due on the four notes, $194, and the $500, insurance.

The findings of fact are justified by the statement of facts. The automobile was insured for $500 against theft by appellant, and it was stolen from appellee. The reasonable market value of the automobile when stolen was $500. All the conditions of the policy were fully complied with by appellee. Notice was waived by appellant, and liability was at once denied. No issue was made by the pleadings as to the value of the car when stolen, but it was admitted in such pleading that the car was of the reasonable value of $450.

The testimony showed that the automobile was placed in the possession of one Lincoln D. Odle, by appellee, to be carried by the latter to Austin and tried out on the hills near or surrounding that city; that Odle pretended that he was contemplating buying, and took it off with a promise that he would bring it back at 6 p. m. He started to Austin in the early morning, at or about 6:30 a. m. He never returned, but went on to Missouri with the car. Appellee had signed a...