On Rehearing
DIXON, Chief Justice.I believe that the motion for rehearing should be sustained, otir affirmance should be set aside, and the judgment of the trial court reversed and judgment here rendered for appellant that appellees take nothing.
After further consideration I have concluded that appellant’s second point is sufficient to challenge the trial court’s finding of fact No. 11: “The plaintiffs did not entrust the automobile to Davis.” See Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156; Airline Motor Coaches v. Caver, 148 Tex. 521, 226 S.W.2d 830; Weir v. King, Tex.Civ.App., 166 S.W.2d 187 (ref.w.m.).
I still think the majority opinion is correct in overruling appellant’s first point on appeal. Under our Certificate of Title Act, Penal Code, Article 1436-1, sections 32, 52 *260and S3, appellees had not parted with title and possession of the automobile in question. Hence coverage was not excluded under the terms of the policy on the ground that they had voluntarily parted with title and possession.
However the contract of insurance which the parties entered into contained this express provision: “Exclusions — The policy does not apply: * * * (d) Under any coverage — to loss resulting from * * * embezzlement, conversion, secretion, theft, larceny, robbery or pilferage committed by any person, including any employee, entrusted by the insured with either custody or possession of the automobile.”
The material facts are undisputed. But to make my position clear it is necessary to quote at some length from the testimony of O. W. H. Powell, a witness for appellees:
“Q. Did you know this man? A. Never had met him before. I talked with him a good while and he seemed to be up and all right, because he showed me some papers and a letter from Atlanta, Georgia, and I told him1 I knew some people in Atlanta and he knew some people in Atlanta and named streets they' worked on and seemed all right. * * *
“Q. Did you make any arrangements for completing the deal that day ? A. It was to be completed the following day after we got the title and had it transferred in his name. He was coming by the next afternoon and pick up the papers. * * *
“Q. .(By Mr. Titus) : Did the man leave with the automobile that day? A. He left the lot, yes.
“Q. Have you seen him since then ? A. I have not. He drove south towards the address he gave me.
“Q. Have you seen the car since then? A. I have not. 1 have looked for it quite a bit.
“Q. Did you have anything to do with the events with regard to this transaction that happened the next day after this sale? A. No, nothing except I phoned the Bank early, as soon as they opened the next morning to see if the check was good. * * *
“Q. Did you make a report to the police department? A. Yes.
“Q. What did you report to them? A. His name and all, and the address he gave me, and the description of the car and the motor number and license number.
“Q. Why did you make a report to them? A. Because, when I found out he didn’t have any money in the bank.
“Q. In other words, you wanted the car back? A. Why, sure.”
On further questioning of Mr. Powell on cross-examination, he testified as follows:
“Q. You wouldn’t have turned over the car to him if you had known those statements were untrue; is that correct ? A. Absolutely. * * *
• “Q. 'When a man comes to you to buy a car and has a check, don’t you do something — require some identification other than merely taking a check? A., Yes, as a rule, but the bank had closed.
“Q. I meant identification; I didn’t mean calling the bank. A. Well, the letters and all he showed me and told me, and he said he lived at 216—
“Q. Well, you do take some identification, don’t you? A. Yes.
“Q. And if you knew the identification wasn’t correct, you wouldn’t have accepted the check, would you? A. No, .1 wouldn’t have let him’ have the car. * * *
“Q. And, to be sure it would be covered, until he definitely'either bought the insurance from your man or bought the insurance somewhere else, you had your agent issue a binder to cover him against loss, did you not? A. *261Yes, we discussed that in the course of the deal, and he said he would let me know about it tomorrow when he came by to pick up the papers. * ⅜ * ”
We have agreed with appellees that the fact that Davis, a thief, executed an application for a new Certificate of Title did not pass title in view of the requirement of section 33 of the Certificate of Title Act which says that the transfer must be executed by the owner, The appellees, the owners here, did not execute or deliver the title to the thief at any time. They had the thief’s promise to return the next day to complete execution of the papers necessary to effect transfer of title and to make final arrangements about insurance coverage. Meantime appellees, as I see it, entrusted possession of the car of which they were still the owners to the thief in reliance upon his promise. The thief betrayed the trust. He did not return next day. He has not been located or heard from since he obtained the car. He kept the car, which he obtained by inducing appellees to trust him with possession during the interim that must necessarily transpire before the deal could be consummated the next day.
The word entrust has been defined by both lay and legal authorities in substance to mean to commit something to another with a certain confidence regarding his care, use or disposal of it. Webster's New International Dictionary, Second Edition (1941): State v. Ugland, 48 N.D. 841, 187 N.W. 237, at page 239; 22 Words and Phrases, Intrust, p. 485; 48 C.J.S., Intrust, p. 754.
I have not found any case exactly in point. But the case of Empens v. Tomer, 170 Wash. 524, 17 P.2d 21, though the facts are different, gives some support to my view that the circumstances in the case now before us constitute an entrustment. In another case, Aetna Cas. & Surety Co. v. Salyers, 294 Ky. 826, 172 S.W.2d 635, in which the terms of the exclusion provision in an insurance policy were somewhat similar to the exclusion provision here, coverage was held to be excluded. The facts involved a wrongful conversion where the converter disappeared with the automobile after having made a payment to the seller toward the purchase price.
I do not doubt that there are policies of insurance which provide coverage under the circumstances here present. Such a one was the policy involved in Alamo Casualty Co. v. Harkins, Tex.Civ.App., 252 S.W.2d 1014. But that is not the type of coverage for which the appellant and appellees chose to contract in this case. Here, as I see it, the facts constitute a "conversion, secretion, (or) theft” committed by a person “entrusted by the insured with either custody or possession of the automobile.” Since such a situation' expressly excludes coverage under the express terms of the policy, I think the judgment of the trial court should be reversed and judgment rendered that appellees take nothing.
CRAMER, J., is in accord with the views herein expressed, so our judgment affirming the trial court’s judgment is set aside, the judgment of the trial court is reversed and judgment is here and now rendered for appellant that appellees take nothing by their suit.