This is a suit brought by Allstate for determination of its liabilities under the policy of automobile insurance issued to J. B. Rhodes on an automobile in the possession of and used by Darla Rhodes, daughter of the insured, involved in a collision while driven by Robert Snyder with Darla Rhodes as a passenger. The trial court having withdrawn the case from the jury and granted judgment against Allstate has resulted in this appeal. Reversed and remanded.
J. B. Rhodes, Allstate's insured, and his wife were divorced and subsequent thereto he (Rhodes) purchased an automobile in his name but delivered same to his daughter, who resided with her mother after the divorce. Darla Rhodes was a high school student of the approximate age of 17 years at the time of the acquisition of the automobile. J. B. Rhodes secured a policy of insurance from Allstate and paid all premiums thereon. In January of 1969, some six or seven months subsequent to the purchase of the automobile, Darla Rhodes and Robert Snyder (also a high school student and minor) were involved in a collision while Snyder was driving the automobile and both parties suffered personal injuries as a result thereof. Fidelity and Casualty Company of New York was the insurer of John Snyder, the father of the minor Robert Snyder. The controversy here has arisen between Allstate and Fidelity as to which insurer was obligated under the terms of its policy to defend Robert Snyder and which insurer was responsible for the payment of damages to all parties. Allstate denies coverage altogether. Fidelity contends that Allstate has primary coverage and that Fidelity's coverage is limited to excess coverage only as to John Snyder's policy.
Appellant Allstate's first two points contend that the automobile involved was owned by Darla Rhodes even though the certificate of title was issued and remained in the name of her father, J. B. Rhodes. Allstate further contends that we are required to look at only the evidence favorable to the losing party in view of the action of the trial court in withdrawing the case from the jury and rendering judgment as a matter of law. We agree with Allstate in this contention. If there existed any material issue of fact for determination by the jury, then the action was improper. Darla Rhodes, minor daughter, testified without objection that her father purchased the car for her as a gift. J. B. Rhodes, the named insured and father, testified in regard to more than one automobile being *Page 284 insured that "* * * one of them specifically was hers, * * *" and that title was maintained in his name because his daughter was a minor. We think it clear that a certificate of title raises a rebuttable presumption that the named owner is the actual owner of the registered automobile. Prichett v. Highway Insurance Underwriters et al., 158 Tex. 116, 309 S.W.2d 46 (1958); Pioneer Mut. Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202 (1944). Appellees counter vigorously that appellant failed to plead ownership of the automobile in Darla Rhodes and therefore waived its right to assert that defense. Appellees, prior to the admission of the testimony referred to above, had objected to testimony offered by Allstate by way of statements and depositions in regard to the actual ownership of the automobile. When appellees themselves called J. B. Rhodes and Darla Rhodes as witnesses and offered the evidence they had previously objected to, they cannot now be heard to complain. Lubbock Bus Co. v. Pearson, 277 S.W.2d 186 (Tex.Civ.App. — Amarillo 1955, writ ref'd n.r.e.). Appellees point out that no trial amendment was permitted by the trial court, and urge that the issue of beneficial or actual ownership was not before the court. The trial court is authorized by Rule 66, Texas Rules of Civil Procedure, to permit pleadings to be amended freely, and to postpone the case to enable the objecting party to meet the evidence not conforming to the pleadings in the event of surprise. Here appellant All-state plead in the alternative that the automobile was not owned by J. B. Rhodes, but owned by and registered in the name of Arjorie Lee Rhodes, the ex-wife or J. B. Rhodes. We doubt that appellees were surprised. The court, having withdrawn the case from the jury and ruled as a matter of law as to ownership of the vehicle, foreclosed the opportunity of appellant to request an issue as to ownership of the automobile by Darla Rhodes and the further opportunity to amend its pleadings. When facts of ownership are disputed, or the testimony of the interested parties is doubtful or ambiguous as is herein presented, then ownership is an issue of fact to be determined by the trier of the facts. The evidence as presented was, to say the least, inconclusive. Appellees contend that the policy provisions do not require that the named insured be the owner of the vehicle. The pertinent provisions are as follows:
"PERSONS INSURED.
The following are insureds under Part I;
(a) with respect to the owned automobile,
(1) the named insured and any resident of the same household,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above;
(b) with respect to a non-owned
(1) the named insured,
(2) any relative, but only with respect to a private passenger automobile or trailer, * * *".
"Relative" is defined in the policy as "* * * a relative of the named insured who is a resident of the same household; * * *."
The policy further provides that "owned automobile" means (a) a private passenger, farm or utility automobile described in this policy for which a specific premium *Page 285
charge indicates that coverage is afforded, * * *" and "non-owned" automobile is defined as "* * * (a) an automobile or trailer not owned by or furnished for the regular use of either the Named insured or any Relative, other than a temporary substitute automobile, * * *." (Emphasis ours.)
In reference to the construction of a contract of insurance we quote from 32 Tex.Jur.2d, § 55, p. 108:
"There is the general rule that contracts of insurance are to be strictly construed in favor of the insured, but this does not affect the further general rule that contracts of insurance are to be construed as other contracts, And that all parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties. * * *" (Emphasis ours.)
In considering the parts of the contract, from the insuring clause through "persons insured" and the definitions of "owned automobile" and "non-owned automobile" sections, we can arrive at only one conclusion, and that is that the named insured or a "relative," as therein defined, must own the automobile described in the policy, or it must fall in the classification of a non-owned automobile. Although, as pointed out by the appellees, since 1963 the Texas Standard Automobile Insurance Form in defining an owned automobile no longer contains the requirement that the named insured be the "sole owner"; however, considering all parts of the contract together, we arrive at the conclusion as herein stated above. Darla Rhodes, not being a "relative" as defined in the policy, was not insured by the policy if she was the actual owner of the automobile rather than J. B. Rhodes, the named insured. The testimony of both J. B. Rhodes and Darla Rhodes raised a fact question as to the actual ownership of the automobile that appellant Allstate was entitled to have submitted to the jury and the trial court erred in withdrawing the case and rendering judgment as a matter of law.
In view of the state of the evidence of this case, we are compelled in the interest of justice to remand the case.
Accordingly, the judgment of the trial court is reversed and the cause remanded for trial.