Summary
In United States Fire Ins. Co. v. Bates, 207 So.2d 620 (Miss. 1968), cited by Nationwide, the Mississippi Supreme Court considered an appellant-insurer's liability to a judgment creditor based on whether the automobile at issue was owned by the insuredcontractor or by the judgment debtor, Mable Bates. The appellant-insurer essentially relied on the following evidence to disclaim ownership in the contractor-insured: (1) the contractor's vehicle was given to Bates with "no strings attached," (2) Bates had the only set of keys to the vehicle, and (3) the vehicle was garaged at Bates' residence. Bates, 207 So.2d at 621.
Summary of this case from Nationwide Ins. Co. v. LadnerOpinion
No. 44704.
February 19, 1968. Rehearing Denied March 18, 1968.
Appeal from Circuit Court for Hinds County, M.M. McGowan, J
Lipscomb, Barksdale, Steen Caraway, Jackson, for appellant.
Lee B. Agnew, Albert Dickens, Jr., Jackson, for appellee.
The Appellee, Mrs. Mable J. Bates, sued out a writ of garnishment against Appellant, United States Fire Insurance Company, which writ of garnishment was based on a judgment of the Hinds County Circuit Court for $5500 in favor of appellee and against Mrs. Linda Harris. The circuit judge, trying the case as both judge and jury, rendered judgment in favor of Mrs. Bates and against United States Fire Insurance Company, finding that under all the facts and circumstances of the case, the 1965 Mustang automobile driven by Mrs. Harris was actually owned by Frank L. Dennis, D/B/A Dennis Brothers Contractors, and was therefore covered by a fleet insurance policy issued by appellant to Frank L. Dennis.
The accident happened on February 25, 1966, when Mrs. Harris drove her automobile into the rear of the car operated by Mrs. Bates. Appellant contended on the trial that the 1965 Mustang Hardtop was given by Frank L. Dennis to Mrs. Linda Harris in the latter part of January 1966, immediately after its purchase from Lloyd Ford Company, that it did not belong to Dennis at the time of the accident and was not covered by the fleet policy issued by it.
Mrs. Harris testified that she and Frank Dennis went by Lloyd Ford Company one night in late January and picked up the car, that they went by her mother's, and in the presence of Dennis, Mrs. Harris exhibited the car to her mother and said, "Look here what Frank gave me." Later that night she and Dennis went by the home of one of her brothers and showed him the car. Both she and Dennis testified that she had the only set of keys to the car, that it was garaged at her residence, and that it was given to her with no strings attached.
The application for 1966 license tag for said Mustang on file in the office of the Sheriff of Hinds County is dated February 21, 1966, signed by Charles T. Heatt, an employee of Dennis Brothers Contractors, and shows "Dennis Brothers Contrs." as the owner. The receipt for 1966 license tag number HB 11522 was issued to "Dennis Bros. Const. Co." The transfer record on file in the sheriff's office is dated February 28, 1966, and shows that Dennis Brothers Construction Company, Route 2, Jackson, Mississippi, has "this day sold or traded the vehicle described below to" Linda Harris, 411 Roseneath, Apartment L, Jackson, Mississippi.
Also on February 28, 1966, three days after the accident, a bill of sale was prepared in the office of McKinley Insurance Agency by Mrs. Ouida Matrick, secretary of the agency, at the instance of Mr. George Arthur, independent insurance adjuster, conveying the 1965 Mustang from Frank Dennis to Linda Harris. This was done in the presence of Frank Dennis and Doug McKinley, the general agent writing the fleet insurance policy on the motor vehicles of Dennis. With the approval of all of those present, the bill of sale was back-dated to February 22, 1966, three days before the accident. Dennis, Arthur, and McKinley went into McKinley's office, and McKinley later handed the bill of sale back to Mrs. Matrick with instructions to notarize is as of February 22, 1966. The bill of sale recites:
"BILL OF SALE
February 22, 19 66. STATE OF MISSISSIPPI, County of Hinds.
"For and in consideration of Ten Dollars ($10.00) Dollars cash in hand, paid me this day in full by Linda Harris I do hereby bargain and sell to him the following personal property: 1965 Mustang Hardtop, S # 5F70A344845. The said property I guarantee is my own and free of all claims and offsets of any and all kinds. I further agree to let said property remain in my charge, free of cost, until called for by Linda Harris or order from him.
[Signed] Frank L. Dennis Frank L. Dennis Dennis Brothers Contractors
"Sworn to and subscribed this 22nd day of February, 1966.
"WITNESS my hand and seal of office this 22nd day of February, 1966.
Ouida W. Matrick Notary Public My comm. expires 11-26-68"
The Motor Vehicle Accident Report, filed on April 19, 1966, with the State Highway Patrol was signed by Linda Harris. This report lists "Dennis Brothers Construction" as the owner. Two Jackson policemen, who investigated the accident, testified that Mrs. Harris told them that she owned the 1965 Mustang. Mrs. Bates testified that in July 1966 Mrs. Harris called her over the telephone and told her "that Frank Dennis owned the car that was involved in the accident."
We gather from his written opinion that the circuit judge intended to hold and did hold that there was a conditional gift of the 1965 Mustang automobile, which was not completed until the bill of sale was prepared, executed and delivered on February 28, 1966, three days after the accident. The circuit judge found from all the facts and circumstances that the Appellant, United States Fire Insurance Company, was liable on the writ of garnishment to Appellee, Mrs. Mable J. Bates.
We cannot say that the conclusion reached by the circuit judge is against the overwhelming weight of the evidence, nor that it is contrary to law. We think that the judgment is supported by substantial evidence and should be affirmed.
Affirmed.
GILLESPIE, P.J., and PATTERSON, INZER and SMITH, JJ., concur.