Miami Lincoln-Mercury, Inc. v. United Services Auto. Ass'n

• Decision Date: 21 June 1961
• Docket Number: No. 13753,LINCOLN-MERCUR,INC,13753
• Citation: 348 S.W.2d 276
• Parties: MIAMI, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 276

348 S.W.2d 276

MIAMI LINCOLN-MERCURY, INC., Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.

No. 13753.

Court of Civil Appeals of Texas, San Antonio.

June 21, 1961.

Franklin S. Spears, San Antonio, for appellant.

House, Mercer, House & Brock, San Antonio, for appellee.

POPE, Justice.

Who owned a motor vehicle at the time it was destroyed is the question presented. Whittier G. Davis and wife had an insurance policy with United Services Automobile Association, which contained a replacement provision. ¹ The claim is that the Davises owned a 1956 Mercury which was covered by the policy at the time it was totally destroyed. Defendant, U.S.A.A., claims that the car was owned not by the Davises, but by Miami Lincoln-Mercury, Inc., a dealer, who had not yet completed a sale of the vehicle to the Davises. Miami Lincoln-Mercury, Inc., obtained an assignment from the Davises and sued to assert its rights under the assignment. The evidence supports the trial court's findings of fact and judgment for the defendant insurer, that the Davises at the time of the accident were not yet the owners of the new car.

The facts which plaintiff, Miami Lincoln-Mercury, relies upon to prove that the Davises were owners of the new car are, that they came to plaintiff's place of business on November 26, 1955, and selected the specific vehicle; they asked plaintiff to install certain accessories; they paid plaintiff $100 in cash to apply on the purchase price; they signed an application for the transfer of title as well as powers of attorney authorizing plaintiff to obtain a certificate of title and license plates in their name, and on November 28, 1955, the State of Florida issued a certificate of title showing that the Davises were the registered owners of the new car. While the accessories were being installed, the Davises returned to their home 150 miles away, and on November 29, 1955, the salesman who had dealt with the Davises phoned them. They asked him to deliver the car to them. That night, while the salesman was driving the car in Miami, he had an accident which destroyed it.

U.S.A.A., the insurer, relies upon other facts which support the trial court's judgment that the sale was not completed and that the new car was not yet owned by the Davises at the time of the wreck. The record shows that the Davises on November 26, 1955, when they were in plaintiff's place of business in Miami, expressed their own intent and understanding of the trade by a memorandum in writing. They executed a 'Buyer's Order', which embodies their understanding of the transaction. This document shows that the Davises selected the car and ordered the installation of certain stated accessories. The order...