Security Ins. Co. v. Sellers-Sammons-Signor Motor Co.

• Decision Date: 02 July 1921
• Docket Number: (No. 9670.)
• Citation: 235 S.W. 617
• Parties: SECURITY INS. CO. v. SELLERS-SAMMONS-SIGNOR MOTOR CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

235 S.W. 617

SECURITY INS. CO. v. SELLERS-SAMMONS-SIGNOR MOTOR CO.^*

(No. 9670.)

Court of Civil Appeals of Texas. Fort Worth.

July 2, 1921.

Rehearing Denied October 15, 1921.

Appeal from District Court, Taylor County; W. R. Ely, Judge.

Action by the Sellers-Sammons-Signor Motor Company against the Security Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Etheridge, McCormick & Bromberg, of Dallas, for appellant.

Wagstaff & Wagstaff, of Abilene, for appellee.

DUNKLIN, J.

E. Sellers, C. E. Sammons, and L. F. Signor, doing business as partners in the firm name of Sellers-Sammons-Signor Motor Company, recovered a judgment against the Security Insurance Company, of New Haven, Conn., for the sum of $1,627.08 for the loss by theft of an Essex automobile, and which loss plaintiffs alleged was covered by an insurance policy issued by the defendant company to the plaintiffs as automobile dealers.

Plaintiffs alleged in their petition that—

"On or about the ____ day of July, 1920, they were the owners of one certain Essex car of the value of $2,100, and that on said day and date said car was stolen from the plaintiffs and carried away and taken from the possession of the plaintiffs without plaintiffs' consent and without plaintiffs' knowledge, and plaintiffs lost said car and the total value thereof."

The proof showed that the plaintiffs were automobile dealers in the city of Abilene, Tex., and were engaged in the buying and selling of automobiles, the Essex car being one of the cars handled by plaintiffs and specifically named in the policy of insurance issued by the defendant and upon which policy the suit was based. In the policy plaintiffs' occupation or business is stated as that of "automobile dealers," and that the uses to which the automobiles insured would be put would be that of "demonstration," and the total amount of insurance was stated to be $50,000.

Under the heading, "Perils Insured Against," is the following:

"(C) Theft, robbery or pilferage, excepting by any person or persons in the assured's household or in the assured's service or employment, whether the theft, robbery or pilferage occur during the hours of such service or employment or not, and excepting also the wrongful conversion or secretion by a mortgagor or vendee in possession under mortgage, conditional sale or lease agreement, and excepting in any case other than in case of total loss of the automobile described herein, the theft, robbery, or pilferage of tools and repair equipment. * * *

"2. It is a condition of this policy that it shall be null and void:

"(A) If the automobile described herein shall be used for carrying passengers for compensation, or rented, or leased, or operated in any race or speed contest during the term of this policy. * * *

"3.. This policy for and in consideration of six hundred twenty-five and no/100 dollars ($625.00) initial premium, does attach and cover all automobiles and their equipment while attached to and a component part thereof, owned by the assured from time of delivery to the assured, and to continue until said property is delivered to the purchaser or until same otherwise passes out of the possession of the assured, but only covering within the limits of the United States or Canada as stated in the policy of which this form is a part; this period in no case extending beyond the expiration of this policy. * * *

"6. The object and intent of this policy is to cover, subject to conditions herein contained, every automobile owned by the assured, as a dealer, therefore the assured agrees to furnish this company at the inception of this contract, a true and correct inventory of all automobiles, both new and secondhand then owned by the assured as a dealer, with complete description of the said automobile, on blanks furnished by the company.

"The assured further agrees to furnish the company quarterly (first report to be filed 90 days from the attachment date of policy) during the policy period, a true and correct report of all automobiles which have been sold or otherwise disposed of during said period, such report to include a complete description of each automobile (including number and whether new or secondhand) with its storage location, the sum to be insured thereon, the date on which it became the property of the assured and the date of sale or disposal by the assured. * * *

"12. Warranted by the assured that the automobiles hereby insured will not be used for carrying passengers for compensation or rented or leased during the term of this policy, and in the event of violation of this warranty, this policy shall immediately become null and void as to the car or cars used. * * *

"14. The total premium charges as shown on each report are due and payable at the time the report is filed and the company shall retain the deposit premium until the termination of the policy, then if the actual premium shown on the final report exceeds the initial deposit premium, the difference shall be due and payable, but if the actual premium as shown on last report is less than the initial deposit premium such difference should be refunded to the assured.

"15. It is understood and agreed that all premiums under this contract shall be computed on a pro rata basis, the rate applying shall be the buildings contents rate of each location shown above (minimum rate $1.50) the minimum charge on each car to be $1.00 for cars on which the manufacturers' list price is $1,200.00 and over and $.50 on all cars listing under $1,200.00."

E. V. Sellers, one of the plaintiffs, testified upon the trial, and his testimony, together with the policy of insurance which was offered, was the only evidence introduced upon the trial. According to his testimony, a man by the name of L. A. Thedford applied to plaintiffs to buy an Essex roadster automobile. He was shown such a car, and agreed to take it giving at the time a check on a bank at Breckenridge, payable to the plaintiffs. Thereupon one of plaintiffs' salesmen went out with Thedford to teach him to drive the car, Thedford stating at the time that he desired to learn how to drive it. During the same day the salesman and Thedford made several trips from plaintiffs' place of business, returning at intervals of a half hour or so.

With respect to the loss of the car in controversy, Sellers testified as follows:

"I will state how we lost it. There was a man by the name of L. A. Thedford came in there early one morning, and wanted to buy an Essex roadster. He says, `I want this car equipped with cord tires; sun shade; extra tire and bumpers,' and he says, `I want to give a check on Breckenridge.' I says, `Well, I do not know you, Mr. Thedford,' and he says, `Wire over there and see if it's all right.' While they were fixing up this car I sent a telegram to the Guaranty State Bank of Breckenridge, and we didn't hear anything from them, and Mr. Sammons, one of my partners, was over there, and I put in a call for him and also for the bank. We didn't hear anything that day or before morning. He wrote out a check, and I took it over to Mr. Parker, of the First State Bank.

"In the meantime, this man Thedford said he would be in town three or four days; he said the check would be all right; and he says, `I want to learn how to drive the car while I am here,' so I could not hear from this call, and so I sent the check over to the bank and told them to send that in for collection, not to send it the usual way; just to send it direct, and in the meantime I was after the telephone operator and also to see if the telegram had been delivered, and they claimed it had been delivered. I never could get Mr. Sammons, and when the men got the car in shape one of the sales boys took this man out for a time to show him how to drive the car. He said he had never driven a car, and stated that he was a farmer boy and just wanted a car; that he had just gotten in an oil well; that he had enough money to buy it. Well I told him that it would be all right for this boy, named Dan Harkrider, to teach him to drive. Dan Harkrider was one of the salesmen. He took this man out, and was with him off and on all day, and they came back and forth to the shop every half hour or so.

"The Breckenridge dealer was there, and I asked him if he knew anything about this boy, and he said he believed he did, but he was not sure; but he said that he thought he had a well and had bought four sections of land the week before out here on the plains. This man went around and got this dealer, and he and this boy or man that was supposed to buy the car, and that afternoon he came in and asked if it would be all right if he drove the car that night; that he would come back to the garage with Mr. Driscoll. We told him that he could come in that night when Driscoll got in, but they got separated, and he left the car out in front of the hotel all night. He locked it, and left it out in front of the hotel, and early the next morning he brought it in and apologized and asked if we had heard from the telegram about his check; we told we had not, and he says, `Well, that's strange they won't answer, because I have got the money there;' he says, `I am not in a hurry; I will be here two or three days, and wanted to know if it would be all right for him to drive...