Queen Ins. Co. v. Dominguez
| Decision Date | 15 February 1968 |
| Docket Number | No. 14650,14650 |
| Citation | 426 S.W.2d 286 |
| Parties | The QUEEN INSURANCE COMPANY, Appellant, v. Olga DOMINGUEZ et al., Appellees. . San Antonio |
| Court | Texas Court of Appeals |
Tom H. King, Arch B. Haston, San Antonio, for appellant.
Putman & Putman, Richard G. Strong, Groce, Hebdon, Fahey & Smith, San Antonio, for appellee.
On November 5, 1965, Olga Dominguez, hereinafter called 'Miss Dominguez,' left her 1965 Pontiac LeMans automobile with Superior Pontiac Company, hereinafter called 'Superior,' for minor repairs. Such automobile had been purchased from Superior by Miss Dominguez in July, 1965, for a purchase price of $3,175.92, and had been driven approximately 6,800 miles. While such automobile was in Superior's possession, it was stolen from Superior's parking lot, wrecked in New Braunfels, Texas, and subsequently returned to Superior. Said automobile is still in possession of Superior. Appellant, The Queen Insurance Company of America, hereinafter called 'Queen,' had issued a policy of insurance to Miss Dominguez, with loss payable clause to Alamo National Bank, hereinafter called 'Alamo,' insuring against loss of the automobile by theft, collision, and other coverage. After the wreck, Queen had an appraisal made by an automobile damage appraisal firm and offered to pay Miss Dominguez the amount shown by such appraisal as needed to repair her Pontiac. Some repairs were made to the automobile by Superior, although there is no evidence in the record as to who ordered such repairs. Miss Dominguez was not satisfied with the repairs or the condition of the automobile after those repairs were made, and filed suit against Queen alleging that the automobile could not be repaired to its former condition and was worthless. She sought recovery for $3,200.00, alleged to be the cash value of the automobile immediately prior to the theft. Queen brought in Superior as a third party defendant, asking recovery over against Superior for any amount for which Queen was held liable under subrogation, alleging negligence against Superior in connection with the theft. Queen also brought in Alamo for the purpose of adjudicating its rights to any proceeds payable under the policy. After a trial to a jury, the court entered judgment for Miss Dominguez and Alamo against Queen in the amount of $2,875.00, decreed that Queen take nothing as against Superior, and awarded Queen all right, title and interest of Miss Dominguez and Alamo in and to said automobile upon payment of said sum of $2,875.00.
The jury found that the value of the automobile before it was stolen was $2,875.00; that after recovery but before any repairs had been made the value was $750.00; that after the repairs the value was $1,900.00; that the reasonable cost of labor and material required to restore such automobile to substantially its former condition prior to its having been stolen was $1,850.00. The jury also found that Superior was not negligent in the loss of the automobile, and that Miss Dominguez did not authorize Superior to make repairs on her automobile.
The policy of insurance, among other things, contained the following provisions:
Queen's primary contention on this appeal is that the trial court erred in rendering judgment for the value of the automobile.
After a careful consideration of the entire record, we have concluded that the jury's verdict does not support the judgment rendered against Queen in the amount of $2,875.00.
If there has been a total loss of the automobile, the measure of damages is the reasonable cash market value of the car immediately before the theft. Stuyvesant Ins. Co. v. Driskill, 244 S.W.2d 291 (Tex.Civ.App.--Fort Worth 1951, no writ); Firemen's Ins. Co. of Newark, N.J. v. Universal Credit Co., 85 S.W.2d 1061 (Tex.Civ.App.--Eastland 1935, no writ); Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 6, Perm.Ed., § 3792, p. 472; 17 Tex.Jur.2d Damages, § 93. There is no finding in this case...
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