Hennessy v. Automobile Owners' Ins. Ass'n

• Decision Date: 28 April 1926
• Docket Number: (No. 789-4449.)
• Citation: 282 S.W. 791
• Parties: HENNESSY v. AUTOMOBILE OWNERS' INS. ASS'N.
• Court: Texas Supreme Court

282 S.W. 791

HENNESSY v. AUTOMOBILE OWNERS' INS. ASS'N.

(No. 789-4449.)

Commission of Appeals of Texas, Section A.

April 28, 1926.

Error to Court of Civil Appeals, Ninth Supreme Judicial District.

Action by W. F. Hennessy against the Automobile Owners' Insurance Association. Judgment for defendant was affirmed by the Court of Civil Appeals (273 S. W. 1024), and plaintiff brings error. Reversed and remanded.

Charles Murphy, of Houston, for plaintiff in error.

Fouts & Patterson, of Houston, for defendant in error.

BISHOP, J.

Plaintiff in error, W. F. Hennessy, purchased a secondhand automobile without demanding and receiving the license fee receipt or bill of sale, and thereafter sold the car to one Chisholm, retaining a mortgage on it to secure the payment of the notes executed to him by Chisholm in payment for same. He did not transfer and deliver to Chisholm the license fee, receipt, nor a bill of sale at the time he sold. After the sale to Chisholm the defendant in error, Automobile Owners' Insurance Association, issued its insurance policy against fire and theft upon the car in the sum of $625, payable to plaintiff in error as mortgagee, as his interest might appear. After the issuance of the policy, and while same was in full force and effect, the car was stolen and destroyed by fire. Defendant in error refused to make payment under the policy, and this suit was instituted by plaintiff in error seeking judgment for the amount due on his notes, together with 12 per cent. penalties and attorney's fees.

At the conclusion of the evidence, the district court instructed a verdict for defendant in error, and on this verdict rendered and entered judgment denying plaintiff in error recovery. The Court of Civil Appeals affirmed this judgment, holding that, as plaintiff in error violated the provisions of the act passed by the 36th Legislature at its regular session, 1919, being chapter 138, p. 253 (Vernon's Ann. Pen. Code Supp. 1922 arts. 1617¾-1617¾k), at the time he purchased the automobile, and also violated the provisions of this act at the time he sold the car to Chisholm, neither he nor Chisholm had any title to or insurable interest in the car. 273 S. W. 1024. This holding is sustained by the Courts of Civil Appeals in the cases of Overland Sales Co. v. Pierce (Tex. Civ. App.) 225 S. W. 284; Goode v. Martinez (Tex. Civ. App.) 237 S. W. 576; Foster v. Beall (Tex. Civ. App.) 242 S. W. 1117; Chaddick v. Sanders, 250 S. W. 722; Mullin v. Nash El Paso Motor Co. (Tex. Civ. App.) 250 S. W. 472; Ferris v. Langston (Tex. Civ. App.) 253 S. W. 309; Fulwiler Motor Co. v. Walker (Tex. Civ. App.) 261 S. W. 147; Cullum v. Lub-Tex. Motor Co. (Tex. Civ. App.) 267 S. W. 322; Grapeland Motor Co. v. Lively (Tex. Civ. App.) 274 S. W. 168, and Tri-State Motor Co. v. King (Tex. Civ. App.) 277 S. W. 433.

Sections 3a, 3b, 3c, 4, and 9, of this act are as follows:

"Sec. 3a. It shall be unlawful for any person acting for himself or any one else, to offer for sale or trade any secondhand motor vehicle in this state, without then and there, having in his actual physical possession the tax collector's receipt for the license fee issued for the year that said motor vehicle is offered for sale or trade.

"Sec. 3b. It shall be unlawful to sell or trade any secondhand motor vehicle in this state without transferring by indorsement of the name of the person to whom said license fee receipt was issued by the tax collector and by physical delivery of the tax collector's receipt for license fee for the year that the said sale or trade is made.

"Sec. 3c. It shall be unlawful for any person acting for himself or another to buy or trade for, any secondhanded motor vehicle in this state without demanding and receiving the tax collector's receipt for the license fee issued for said motor vehicle for the year that said motor vehicle is bought or traded for.

"Any person violating the provisions of sections 3a, 3b, or 3c shall be guilty of a misdemeanor and upon conviction shall be fined in any sum, not less than ten dollars ($10) or more than two thousand dollars ($2,000.00), or by confinement in the county jail for any term less than one year, or both such fine and imprisonment, and all moneys collected for such fines shall be placed in the road and bridge fund of the county in which the violation occurs and the penalty is recovered.

"Sec. 4. It shall be unlawful for any person, whether acting for himself or as an employé or agent to sell, trade, or otherwise transfer any secondhand motor vehicle without delivering to the purchaser a bill of sale in duplicate, the form of which is prescribed in this act, one copy of which shall be retained by the transferee as evidence of title to ownership, and the other copy of which shall be filed by the transferee with the county tax collector as an application for transfer of license together with the lawful transfer fee of $1.00. * * *"

"Sec. 9. Any one who shall fail to comply with any of the requirements of this act as prescribed in sections 1, 2, 3, 4, 7, and 8, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than ten ($10.00) dollars, nor more than one hundred ($100.00) dollars, and all such fines when recovered, shall be placed in the road and bridge fund of the county in which the violation occurs and the penalty is recovered."

We agree with the defendant in error that illegal contracts are void, and the courts will not recognize rights as springing therefrom. We are also in accord with its contention that contracts prohibited by statute, either expressly or impliedly, are void without regard to the question of moral turpitude, and that contracts directly and expressly prohibited by a constitutional statute in unmistakable language are absolutely void. This statute, however, does not in unmistakable language prohibit contracts of sale of secondhand motor vehicles. It permits such contracts when made in the manner required by its terms.

Section 9 of the above-quoted act clearly states that it is the failure to comply with the requirements of section 4, which is denounced as a crime. The requirements of section 4 are that the seller of a secondhand motor vehicle deliver to the purchaser a bill of sale in duplicate and that the purchaser shall retain one copy as evidence of title, and file the other with the county tax collector. It is not then the sale of secondhand motor vehicles which is penalized, but the failure to comply...