Sullivan v. Smith

570 S.W.2d 197, 1978 Tex. App. LEXIS 3573

• Court: Court of Appeals of Texas
• Decided: August 3, 1978
• Docket: No. 17146
• Status: Published

Opinion

COLEMAN, Chief Justice.

The plaintiff appeals from a judgment for the defendant in an action growing out of an automobile accident. At the conclusion of the plaintiff’s case the trial court granted an oral motion for judgment. The trial court filed findings of fact and conclusions of law.

This is an insurance subrogation case brought by State Farm Mutual Automobile Insurance Company in the name of its insured, Daniel Sullivan, against Roy Smith. A truck driven by Roy Smith struck the rear of the vehicle of Daniel Sullivan causing a property damage loss. The trial court found that no testimony was adduced as to the ownership of the automobile driven by Mrs. Sullivan, and determined that because of such failure the plaintiff could not recover for the damage suffered by the automobile.

The record reveals that Mr. Ross, an insurance adjuster, testified that he knew of his own personal knowledge that the owner of an automobile shown in a photograph, which was introduced into evidence, was Daniel Sullivan. The automobile shown in the picture was later identified by Mrs. Sullivan as being the automobile she was driving and which was involved in the collision.

Where a question of ownership is collateral, rather than the primary issue, a witness may state that he or some other person is the owner of certain property. McCormick and Ray, Texas Law of Evidence, Vol. 3, § 1426; Strickland Transportation Co. v. Ingram, 403 S.W.2d 192 (Tex.Civ.App.—Texarkana 1966, writ dism’d).

In this case the ownership of the automobile involved in the collision which was driven by Mrs. Sullivan is a collateral issue. There is competent evidence that the automobile was owned by Daniel Sullivan.

The judgment of the trial court is reversed and the cause is remanded.