Superior Pontiac Co. v. Queen Ins. Co. of America, B-899
| Decision Date | 27 November 1968 |
| Docket Number | No. B-899,B-899 |
| Citation | 434 S.W.2d 340 |
| Parties | SUPERIOR PONTIAC COMPANY et al., Petitioners, v. The QUEEN INSURANCE COMPANY OF AMERICA, Respondent. |
| Court | Texas Supreme Court |
Putman & Putman, Harold D. Putman and Richard G. Strong; Groce, Hebbon, Fahey & Smith and Charles R. Shaddox; and Houston & Thompson, San Antonio, for petitioners.
Tom H. King and Arch B. Haston, San Antonio, for respondent.
Olga Dominguez, plaintiff below and a Petitioner here, the owner of a 1965 Pontiac Le Mans automobile, sued Respondent, The Queen Insurance Company of America, her theft and collision damage insurer, for damages in the sum of $3,200. The automobile in question was purchased by Olga from Superior Pontiac Company, of San Antonio, Texas, a cross-defendant below and a Petitioner here, in July, 1965, for $3,175.92 and had been driven 6,800 miles at the time of its damaging. On November 5, 1965, Olga delivered the automobile to Superior for repairs from whose premises it was stolen and later recovered at New Braunfels, Texas, in a damaged condition. Queen obtained Olga's authorization to pick up the automobile and it was returned to Superior. Queen obtained a repair appraisal in the sum of $924.20 from another firm. Repairs in this sum were made by Superior, but whether upon its own initiative or that of Queen is unclear. Olga did not authorize the repairs. After the repairs were made, Superior would not permit Olga to have the automobile checked by an outside mechanic, or permit her to test drive it unless accompanied by a representative of Superior, and refused to return the automobile to Olga unless she accepted it as repaired and signed a release. The repaired automobile was unacceptable to Olga after visual inspection and this suit resulted. The record does not indicate that there has been any change in the circumstances under which possession of the automobile has been withheld from Olga, and it seems clear that it has, at all times, been beyond her reach except and unless she agreed to accept the automobile in its repaired condition.
Queen named the Alamo National Bank of San Antonio a third-party defendant as a holder of a lien against the automobile and as a coinsured with Olga. In addition, Queen named Superior a third-party defendant whose negligence in various respects was alleged to have occasioned the theft of the automobile, and against whom it asserted subrogation rights.
Queen admitted liability under the policy issued to Olga, the insurance clause of which required Queen:
'To pay for loss caused by collision to the owned automobile * * *';
'To pay for loss to the owned automobile * * * caused by theft or larceny.'
'Loss' was defined in the policy as 'direct and accidental loss of or damage to (a) the automobile, including its equipment, * * *.'
Queen defensively pleaded the following additional provisions of the policy:
a. 'The limit of the company's liability for loss shall not exceed the actual cash value of the property, or if the loss is of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, * * *.'
b. 'The company may pay for the loss in money; or may repair or replace the damaged or stolen property; or may, at any time before the loss is paid or the property is so replaced, at its expense return any stolen property to the named insured, or at its option to the address shown in the declarations, with payment of any resulting damage thereto; or may take all or such part of the property at the agreed or appraised value but there shall be no abandonment to the company.'
Upon the basis of these policy...
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