Automobile Underwriters v. Tite

• Court: Indiana Appellate Court
• Citation: Automobile Underwriters v. Tite, 119 Ind.App. 251, 85 N.E.2d 365 (Ind. App. 1949)
• Decision Date: 28 April 1949
• Docket Number: 17847.
• Parties: AUTOMOBILE UNDERWRITERS, Inc. v. TITE et al.

85 N.E.2d 365

119 Ind.App. 251

AUTOMOBILE UNDERWRITERS, Inc. v. TITE et al.

No. 17847.

Appellate Court of Indiana, in Banc.

April 28, 1949

Appeal from Vanderburgh Probate Court; F. Wendell Lensing Judge.

Fenton, Steers, Beasley & Klee and Edwin Steers, all of Indianapolis, and Waller, McGinnis &amp Merrill, Richard Waller, Richard R. McGinnis, D. Bailey Merrill, and Robert D. Norton, all of Evansville, for appellant.

Morton W. Newman, Jerome L. Salm, and Isadore Newman, all of Evansville, for appellees.

DRAPER Judge.

This is an action brought by the appellee Tite, to recover on a policy of automobile insurance issued to him by the appellant, which policy covered loss suffered by reason of collision.

The company defended on the ground that Tite stated in his application for insurance that the automobile was titled in the name of the owner; the policy was issued in reliance upon the application; and the policy contained a warranty that Tite was the sole owner of the vehicle; whereas, in fact, one Ramsey actually owned the vehicle, and Tite had taken the title in his name only because Ramsey was a minor.

The court found the facts specially, stated conclusions of law favorable to Tite and rendered a judgment awarding him $360.

The certificate of title named Tite as owner, but whether he or Ramsey actually owned the car was disputed. The evidence was such that it would have supported a finding that Tite was actually the sole owner of the automobile. On the other hand it would have supported a finding that Ramsey was the sole owner thereof. The trial court found that Tite was the 'legal title holder' of the automobile, but expressly stated that it was making no finding as to the equitable ownership thereof. The court's refusal to do so is explained by its first conclusion of law which says 'That as a matter of law the ownership of the equitable title to the automobile is immaterial.'

The trial court should find all material or controlling facts within the issues of a case when there is credible evidence on the subject. 53 Am.Jur. p. 788, § 1134; 64 C.J., Trial, p. 1232, § 1077. We cannot regard this as a case where a 'failure' to find is equivalent to a finding against the party having the burden. The record before us clearly indicates the court would not make a finding on the issue of actual ownership, and it further indicates the court's reason for refusing to do so. We are not at liberty to close our eyes to the truth as brought home to us by the record.

The pleadings put the beneficial or equitable ownership of the vehicle directly it issue. There was much apparently credible evidence on the subject. The question, then, is whether such ownership of the vehicle was a controlling fact in this case. If so, the fact should have been found. No case directly in point has been cited.

A certificate of title to a motor vehicle is not conclusive proof of title in him who is therein designated as the owner. Nichols v. Bogda Motors, Inc., Ind.App.1948, 77 N.E.2d 905. It is evidence, but not conclusive evidence, of ownership. Meskiman v. Adams, 1925, 83 Ind.App. 447, 149 N.E. 93.

It is generally said that he is the owner of property who, in case of its destruction, must sustain the loss. 42 Am.Jur. p. 214, § 37. Ownership is sole when no other has any interest in the property as owner. Hudson Casualty Ins. Co. v. Garfinkel, 1932, 111 N.J.Eq. 70, 161 A. 195; Bardwell v. Commercial Union Assur. Co., 1933, 105 Vt. 106, 163 A. 633. There cannot be two different sole owners of the same property at the same time. Des Moines Ins. Co. v. Moon, 1912, 33 Okl. 437, 126 P. 753.

In the application for insurance Tite represented the car was titled in the name of the owner. The title was in his name and he thus represented himself to be the owner. The statement that the subscriber (Tite) was the sole owner of the automobile appears on the face of the policy under the heading 'Warranties.' This latter statement was thus expressly made a warranty by the terms of the policy itself. A breach of a warranty in a policy of insurance furnishes grounds for avoiding the policy by the insurer. Phoenix Insurance Company v. Benton, 1882, 87 Ind. 132; Baker et al. v. German Fire Insurance Company, 1890 124 Ind. 490, 24 N.E....