Stagg v. Travelers Ins. Co.

• Decision Date: 19 October 1972
• Docket Number: No. 7375,7375
• Citation: 486 S.W.2d 399
• Parties: Lorna Faye STAGG, a minor, et al., Appellants, v. The TRAVELERS INSURANCE COMPANY et al., Appellee.
• Court: Texas Court of Appeals

Page 399

486 S.W.2d 399

Lorna Faye STAGG, a minor, et al., Appellants, v. The TRAVELERS INSURANCE COMPANY et al., Appellee.

No. 7375.

Court of Civil Appeals of Texas Beaumont.

Oct. 19, 1972.

Helm, Jones & Pletcher, Houston, Hopkins & Alworth, Conroe, for appellants.

Vinson, Elkins, Searls, Connally & Smith, Louis E. McCarter, Lueders, Houston, for appellees.

KEITH, Justice.

Plaintiffs brought suit upon the uninsured motorist endorsement attached to garage liability policy issued by defendant to 'Gilbert Stagg DBA Stagg Auto Body & Sales.' This policy did not specifically describe any particular vehicle but in the 'Uninsured Motorists Insurance Coverage Part' attached to the policy appeared printed and typewritten words reading as follows:

'Description of Insured Highway Vehicles (Check appropriate box)

' Any automobile owned by the named insured BASED ON ONE OWNED AUTO'

The last words in this quotation, appearing in capital letters, were typed upon the face of the endorsement; the others were printed.

Dean Stagg, a son of Gilbert Stagg, was driving a 1968 Plymouth automobile when it was involved in a collision with the uninsured motorist. Arthur Stagg and Lorna Faye Stagg, brother and sister of Dean Stagg and children of Gilbert Stagg, were passenger in the Plymouth and sustained injuries in the collision. The jury convicted the uninsured motorist of negligence proximately causing the collision, exonerated the plaintiff-driver, and found substantial damages for each of the three children who were in the vehicle. Since we have no question as to the negligence of the uninsured motorist, lack of contributory negligence, or complaint of the amount of damages, we pretermit further discussion of the factual basis of the accident.

The defendant insurer specially pleaded that the Plymouth in which plaintiffs were riding was not the 'ONE OWNED AUTO' mentioned in the uninsured motorist rider attached to the policy issued to Gilbert Stagg, but was an automobile owned by the plaintiff Arthur Stagg. We quote in the margin an additional exclusion using the language of defendant's pleadings. ¹

The jury answered 'We do not' to Special Issue No. 7 inquiring if Gilbert Stagg (the father) owned the 1968 Plymouth. The Stagg family kept two automobiles at their home where all of the plaintiffs resided at the time of the collision. One of these was a 1966 Pontiac and the other was the 1968 Plymouth involved in the collision. It is undisputed that record title to the Plymouth was in Arthur Stagg while the record title to the Pontiac was in Gilbert Stagg, the father. Travelers issued a separate insurance policy (which did not include an uninsured motorist rider) on the Pontiac to which the Plymouth was added for collision and comprehensive coverage only. Further, it is undisputed that an uninsured motorist premium was paid for only one automobile and that was the one insured under the garage liability policy.

Plaintiffs testified that both automobiles were used in the family garage business where Arthur worked regularly and the other children worked from time to time.

By their first point, plaintiffs contend that the trial court erred in failing to enter judgment on the jury verdict, or in the alternative, judgment non obstante veredicto, because 'the exclusion relied upon by Appellee does not apply since the 1968 Plymouth automobile was an insured vehicle within the meaning of the exclusion.' We disagree.

First, we note that in Sherman v. Provident American Insurance Company, 421 S.W.2d 652, 654 (Tex.1967), the Court said that 'the burden of proof was on the plaintiffs to negative the exclusions and limitations contained in the policy and pleaded as a defense by defendant's answer.' See also, Travelers Indemnity Co. v. McKillip, 469 S.W.2d 160, 162 (Tex.1971).

In this suit the plaintiffs were seeking recovery under the uninsured motorists rider attached to a garage liability policy. This rider was issued to Gilbert Stagg as the 'designated insured' who was described as an 'individual'; ² and, the policy coverage was limited to 'ONE OWNED AUTO.' Unquestionably, Gilbert Stagg owned the Pontiac. If plaintiffs were to prevail, it was incumbent upon them to establish that Gilbert Stagg owned the Plymouth automobile.

We are not called upon to determine whether or not Gilbert Stagg or his son, Arthur, owned the Plymouth. It is sufficient to say that plaintiffs labored under the burden of proving Gilbert's ownership and failed to discharge that burden. Cf. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966).

The Stagg plaintiffs were all interested witnesses, and the rule governing such testimony is that set out in Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458, 467 (Tex.1969): 'The general rule is that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact.' The question of ownership of the vehicle in Gilbert Stagg was a proper issue for the jury's determination in this cause.

Nor was it error for the trial court to overrule plaintiffs' motion for judgment non obstante veredicto. The rule is set out in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952):

'(T)o sustain the action of the trial court in granting judgment non obstante veredicto, it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied upon.'

See also, Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex.1967); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962).

After all, the jury had before it the certificate of title wherein the son, Arthur, represented to the state officials that he was the sole owner of the Plymouth and thereby obtained his certificate of title and registration plates. Point one is overruled.

Next, plaintiffs contend that they were not required to establish actual ownership of the Plymouth in Gilbert Stagg in order to support a recovery under the uninsured motorist clause. As a factual basis for this contention, plaintiffs point to the record of ownership of the Plymouth heretofore summarized, the record showing that the Plymouth was used by Arthur (and others of the family) in connection with the garage business, and to the local recording agent's testimony concerning his knowledge of the business of Gilbert Stagg. Their elaborate argument under this point is supported by a single citation to the very recent opinion of Snyder v. Allstate Insurance Company, 485 S.W.2d 769 (Tex.1972) (not yet reported except in 15 Tex.Sup.Ct.Jrl. 390 (June 28, 1972)).

We do not consider the well-reasoned opinion of Justice Daniel in Snyder to be in point in the case at bar. First, as was pointed out by Justice Daniel, the fact that J. B. Rhodes did not own the vehicle involved did not preclude him 'from purchasing and being covered by an automobile liability policy and being named insured.' Next, we note that it was the primary liability insuring agreement (along with the medical payments clause) which was involved in Snyder. The definition of the 'insured' in the liability and medical payments clauses is entirely different from that which is found in the uninsured motorist clause.

After quoting the definitions found in the liability provisions of the Allstate policy, Justice Daniel says: 'Allstate argues that 'owned automobile' necessarily implies that it must be owned by the insured. This would be a reasonable inference if it were not for the definition (in the policy) which provides to the contrary.' ³ There is, of course, no definition in the policy under consideration providing to the contrary; instead, we find an express provision requiring that an automobile must be owned by the named insured before it is an 'insured highway vehicle.' Further, Gilbert Stagg owned the Pontiac which was used in his business and procured the uninsured motorists insurance only on one vehicle. Cf. American Liberty Insurance Company v. Ranzau, 481 S.W.2d 793 (Tex.1972).

'Gilbert Stagg DBA Stagg Auto Body & Sales,' the owner of a Pontiac automobile used in his business, paid a single four dollar premium and secured an uninsured motorists rider upon his policy. He alleged, but failed to prove, that he owned the Plymouth involved in our suit. Having failed to establish his right to proceed under the policy sued upon, the trial court properly entered judgment for the defendant. Plaintiffs' point two is overruled.

Finally, the plaintiffs contend that the trial court erred in entering judgment for the defendant insurance company 'because the exclusion (relied upon by defendant) is void as an improper restriction on coverage.' Plaintiffs readily admit that '(t)here are no Texas cases that hold whether or not this particular exclusion is enforceable.' Several out-of-state cases are cited and have been examined by us. ⁴

We are also familiar with the rule laid down in Ranzau, supra, that the statute governing the uninsured motorist protection 'provides that its requirements are to be accomplished 'under provisions prescribed by the Board.' But the Board may not act contrary to but only consistent with, and in furtherance of, the expressed statutory purposes; and if the 'other insurance' clause contravenes the statute, its prescription or approval by the Board is ineffective.' (481 S.W.2d at 796.)

The reply of the defendant insurer completely answers the contentions now brought forward by plaintiffs and is adopted, to a large extent, without the benefit of quotation.

Although there have been no Texas decisions passing on the validity of the exclusion in question, those jurisdictions that have actually passed on the particular provision have held it to be clear and unambiguous with the valid purpose of requiring the named insured to secure additional uninsured motorists coverage for himself and his relatives for any vehicles owned by relative residents of the same household.

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