Murdock Acceptance Corp. v. Adcox

• Decision Date: 19 March 1962
• Docket Number: No. 42148,42148
• Citation: 245 Miss. 151,138 So.2d 890
• Parties: MURDOCK ACCEPTANCE CORPORATION v. Ida ADCOX.
• Court: Mississippi Supreme Court

Page 890

138 So.2d 890

245 Miss. 151

MURDOCK ACCEPTANCE CORPORATION v. Ida ADCOX.

No. 42148.

Supreme Court of Mississippi.

March 19, 1962.

Watkins & Eager, Jackson, for appellant.

R. C. Russell, Magee, W. W. Dent, Collins, for appellee.

KYLE, Justice.

The appellant, Murdock Acceptance Corporation, a Tennessee Corporation authorized to do business in the State of Mississippi, and having a branch office in Jackson, Mississippi, filed two replevin suits in the Circuit Court of Simpson County, seeking to recover possession of one 1958 six-cylinder Ford one-half ton pickup truck valued at $1978, and one 1958 eight-cylinder Ford two-ton truck and cab valued at $2544. The affidavits in replevin were filed on May 31, 1960, and writs of replevin were issued on the same day and placed in the hands of the sheriff for execution. The sheriff's return shows that he took possession of the two trucks on June 1, 1960. The trucks were valued by the sheriff in his returns at the amounts stated in the affidavits in replevin. On June 13, 1960, the plaintiff executed replevin bonds for the two trucks, and the trucks were delivered to the plaintiff. The plaintiff filed its declarations in replevin on September 12, 1960, in Cause No. 5336 and Cause No. 5337, as shown on the docket of the circuit court.

In its declaration in Cause No. 5336, the plaintiff alleged that, on or about July 19, 1958, Dickson Motor Company entered into a conditional sale contract with the defendant Ida Adcox for the sale by Dickson Motor Company, and the purchase by the defendant, Ida Adcox, of the above mentioned one-half ton pickup truck, title being retained in the seller to secure the payment of the unpaid balance of the purchase price, which was to be paid in 23 monthly installments of $86 each; that Dickson Motor Company, for value received, assigned the contract, together with the retained title and all rights thereunder to the plaintiff; that the defendant had failed and refused to pay the installments falling due since August 21, 1959; that the plaintiff had demanded possession of said vehicle from the defendant and the defendant had refused to deliver up possession; and that the plaintiff was entitled to immediate possession of said vehicle. The plaintiff alleged that the unpaid balance due and owing on the pickup truck was $1113.12. The plaintiff attached to its declaration the original conditional sale contract.

The declaration in Cause No. 5337 alleged that, on January 15, 1958, Dickson Motor Company entered into a conditional sale contract with the defendant Ida Adcox for the sale by Dickson Motor Company and the purchase by the defendant of the above mentioned two-ton truck and cab; that under the terms of said conditional sale contract title to the vehicle was retained in the seller to secure the payment of the unpaid balance of the purchase price, which was to be paid in 24 monthly installments of $106 each; that Dickson Motor Company for value received assigned said contract to the plaintiff; that the defendant had failed and refused to pay the installments falling due since August 21, 1959; that the plaintiff had demanded possession of said vehicle from the defendant and the defendant had refused to deliver up possession; and that the plaintiff was entitled to the immediate possession of said vehicle. The declaration also alleged that the unpaid balance due on the two-ton truck and cab was $954. The original of said contract was attached as an exhibit to the declaration.

The defendant filed her answer to each of the declarations on December 5, 1960, and in her answer denied that she was legally indebted to the plaintiff in the amount sued for. The defendant averred in her answer in each case that at the time she purchased the truck in question she was engaged in various logging enterprises and that she took out an insurance policy to protect her against bodily injury or sickness during the life of the policy, a copy of said policy being attached to her answer; that said policy was in full force and effect; that the plaintiff was totally disabled to perform any of her duties incident to her business; and 'that under the terms of the policy she was not due to pay anything on said truck * * * during her total illness;' and that the plaintiff was fully aware of that fact when it instituted its suit. The defendant also alleged in her answer that the defendant had suffered irreparable loss as a result of the plaintiff's seizure of the truck for which she was entitled to recover damages.

On March 8, 1961, the defendant filed a supplemental answer and notice of claim for damages in each of the two cases, in which she stated that she was not guilty of any of the things laid to her charge in the plaintiff's declaration, and she did not owe the debt claimed against her by the plaintiff, because the plaintiff did not own any of the indebtedness sued for, and the suits should be dismissed. The defendant also gave notice that she would attempt to prove, when the case was tried, that the insurance policy referred to in the answer theretofore filed was more than sufficient to pay the monthly installments of the purchase price of the truck which had matured during her illness. On March 20, 1961, the defendant filed a second supplemental answer in each of the two cases in which she alleged that during the negotiations leading up to the purchase of each of the trucks, the said Joe Dickson advised her that the Murdock Acceptance Corporation handled all of his credit business, and if she desired to purchase the truck on a conditional sale contract basis he would sell her the truck on that basis and assign the contract to Murdock Acceptance Corporation and the payments under the contract would be made directly to Murdock; that Murdock, however, would not accept such assignment unless the defendant took out an indemnifying Time Finance Policy with the Continental American Life Insurance Company by the terms of which the insurance company would be required to pay the deferred payments of the purchase price of the vehicle described in the conditional sale contract in the event the defendant became physically disabled, as defined in the policy.

The cases were called for trial at the regular March 1961 term of the court; and by agreement of counsel the two cases were consolidated for trial and were tried together.

William J. King, Loan Manager of the Murdock Acceptance Corporation, testified that Murdock Acceptance Corporation purchased the conditional sale contracts from Dickson Motor Company of Mount Olive; that the contract on the 1958 one-half ton pickup truck was purchased by Murdock Acceptance Corporation in July 1958; and that the contract on the two-ton truck was purchased in January 1958; that the contract on the one-half ton truck called for 23 monthly payments of $86 each, the first payment becoming due August 16, 1958; that the contract on the two-ton truck called for 24 monthly payments of $106 each, the first payment becoming due February 22, 1958; that the last payment made by Mrs. Ida Adcox on each of the trucks was made on July 31, 1959; and that no payments had been made since that time. King stated that he notified Mrs. Adcox that the payments were not being made and that Murdock wanted the balance paid or possession of the truck; that Mrs. Adcox refused to release the trucks to Murdock and refused to make any more payments. King was asked whether the buyer had taken out insurance policies to cover the unpaid installments in case of death or in case of disability of the buyer. His answer was that such policies had been taken out by the buyer, but the policies had not been taken out with Murdock Acceptance Corporation; that Murdock was not an insurance company. King was asked whether it was mandatory that a person buying an automobile or truck which was to be financed by Murdock Acceptance Corporation take out such insurance. His answer was, that it was not mandatory, and it was not required in this case. King stated that the unpaid balance on the pickup truck was $1113 at the time the writ of replevin was issued, and that the unpaid balance on the two-ton truck was $954. King stated that payments under a conditional sale contract were not suspended upon notice of sickness of the buyer where the buyer had taken out insurance; that Murdock looked to the buyer as the person liable for the payments.

On cross-examination King was questioned at length by the defendant's attorney concerning the relationship which existed between Murdock Acceptance Corporation and Continental American Life Insurance Company. King stated that the two corporations were separate corporations, although they appeared to have the same president. King was also questioned about a stamped assignment, which appeared on the back of each of the conditional sale contracts, by Murdock Acceptance Corporation to Harris Trust and Savings Bank. He stated that Murdock Acceptance Corporation borrowed money from the Harris Trust and Savings Bank from time to time for use in its business, and the assignments were made as security for such loans; that Murdock had a right, however, to continue to receive payments on the accounts represented by the conditional sale contracts and to repossess the property described therein. The two insurance polices issued to the defendant by Continental American Life Insurance Company were offered in evidence by the defendant as exhibits to King's testimony.

Except for dates and amounts the two policies were identical. Each of the policies provided indemnity in case of death and for loss of time effected through accidental means or sickness, to the extent therein provided. One policy was dated January 15, 1958 and ran 24 months with an original death benefit of $2,544. It contained accident and health benefits providing for $106 per month for total and permanent disability. The other policy was dated July 19, 1958, and ran for 24...