Bowling v. Hamblen County Motor Co.

• Decision Date: 16 April 1932
• Citation: 66 S.W.2d 229,16 Tenn.App. 52
• Parties: BOWLING v. HAMBLEN COUNTY MOTOR CO. et al.
• Court: Tennessee Court of Appeals

66 S.W.2d 229

16 Tenn.App. 52

BOWLING v. HAMBLEN COUNTY MOTOR CO. et al.

Court of Appeals of Tennessee, Eastern Section.

April 16, 1932

Certiorari Denied by Supreme Court October 15, 1932.

Appeal from Chancery Court, Hamblen County; Ben Robertson Chancellor.

Suit by W. L. Bowling against the Hamblen County Motor Company, the Commercial Credit Company, and another, in which the Commercial Credit Company filed a cross-bill. From the judgment, defendants appeal.

Original bill dismissed, cross-bill sustained, and judgment entered in favor of the Commercial Credit Company against complainant and the Hamblen County Motor Company.

H. O Fortner, of Knoxville, for appellants.

J Frank Park, of Jefferson City, and Taylor, Bell & McCanless and McMahan & Pierce, all of Morristown, for appellee.

PORTRUM Judge.

In the fall of 1930, the complainant, W. L. Bowling, operated a filling station in Jefferson county, and, desiring to open a filling station in Grainger county, he entered into a partnership with a woman by the name of Lucile McBee Scaggs but the woman had no ready funds to put in the business, however, she owned a Chevrolet automobile. It was agreed that Bowling would allow her $250 on this automobile as her portion of the capital. A small store and lunch stand was to be operated in connection with this filling station. A building was secured and the business opened under the name of the "New Haven Filling Station." The complainant testified it was necessary to own and operate an automobile in connection with this business, and he operated one in connection with his filling station in Jefferson county; so he and the woman went to Morristown, in Hamblen county, and purchased a Ford automobile from the Hamblen County Motor Company, trading in the Chevrolet for the down payment, and Bowling executed his notes for the deferred payments. The deferred payments were financed by the Commercial Credit Company, of Knoxville, which had an arrangement with the motor company to carry its undue paper under what is commonly known as the finance plan, and as a part of this plan the purchaser was required to pay to the seller, in addition to the purchase price, a premium for fire and theft insurance, which the seller and the credit company secured for him. Bowling executed his notes for the sum of $363.12, and later the insurance policy was sent to him. The coverage of this policy was $500.

In making application for the policy the car was described as a Ford roadster, Model No. 3922162, when as a matter of fact it should have been described as a sport coupé, Model No. 3819612; the policy was issued upon the application and did not describe the car purchased. The motor company insists this error is attributable to the finance company, while this company insists the error is attributable to the motor company.

The car was purchased on October 13th, and, on December 1st, the purchaser notified the motor company that the car had been stolen. In due time the insurance company was notified and sent an adjuster, who discovered that the policy did not describe or cover the car lost. And also insisted the car was not stolen, as defined in the policy. The insurance company declined to adjust the loss.

The complainant then brought this suit, suing first the insurance company upon its policy of insurance (but he did not seek a reformation), and second, the motor company and the finance company, seeking a judgment against these companies in the event he could not recover on the policy of insurance because of their joint mistakes, or against the company committing the mistake. The insurance company answered denying liability; the motor company answered and disclaimed any mistake or negligence on its part; and the finance company answered denying any mistake or negligence on its part, but accusing the motor company of the mistake, as the motor company had accused it of the mistake, and it filed a cross-bill against the complainant, Bowling, and the motor company, seeking a recovery upon the note executed by Bowling and indorsed by the motor company. The company and Bowling answered the cross-bill, and the proof was taken.

The chancellor found as a fact that the car was stolen, but that the complainant was not entitled to recover upon the policy of insurance because it did not describe the stolen car. He then found as a fact that the seller and the finance company undertook to procure a policy of theft insurance for the purchaser, and that the finance company was negligent in making the application for the insurance in that it described another car, and failed to correctly describe the car intended to be the insured. He then gave a judgment against the finance company and in favor of the complainant for the amount recoverable under this policy and ordered this judgment paid by the cancellation of the notes held by the finance company against the maker and the indorser, and, after crediting this amount, gave a judgment in favor of the complainant for the balance, or $137.74, and costs. The insurance company did not pray and perfect an appeal, but the other parties did.

The first assignment of the Commercial Credit Company is that the court erred in finding that the car was stolen; and the insurance company in its reply brief insists that it is entitled to rely upon this defense in this court as an additional reason why the decree of the lower court should be affirmed in its favor.

The appellee, Bowling, insists that the appeal prayed by the Commercial Credit Company was a special appeal, and did not specify this error as the one appealed from, and for this reason the credit company cannot raise this issue in this court. We are referred to a decree which bears out this statement, but following this is an order vacating the decree, and then followed another decree, and, while the prayer in this is a special prayer, it specified this and other issues as erroneous. Therefore, the credit company...