Brown v. Pointer

• Decision Date: 27 June 1972
• Docket Number: No. 2,Docket No. 11829,2
• Citation: 41 Mich.App. 539,200 N.W.2d 756
• Parties: Cleo BROWN, Administrator of the Estate of Susan E. Brown, Deceased, Plaintiff-Appellee, v. Charles W. POINTER et al., Defendants-Appellees, and Associates Discount Corporation, a Delaware corporation, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 756

200 N.W.2d 756

41 Mich.App. 539

Cleo BROWN, Administrator of the Estate of Susan E. Brown, Deceased, Plaintiff-Appellee, v. Charles W. POINTER et al., Defendants-Appellees, and Associates Discount Corporation, a Delaware corporation,

Defendant-Appellant.

Docket No. 11829.

Court of Appeals of Michigan, Division No. 2.

June 27, 1972.

Leave to Appeal Granted Sept. 14, 1972.

Released for Publication Sept. 26, 1972.

David C. Coey, Foster, Lindemer, Swift & Collins, Lansing, for Associates Discount Corp.

Camille S. Abood, Lansing, for Cleo Brown.

H. James Starr, Lansing, for Claims Fund and Charles W. Pointer.

John L. Cote, East Lansing, for Gallaghers and Ins. Co.

Before McGREGOR, P.J., and J. H. GILLIS and O'HARA, ^* JJ.

J. H. GILLIS, Judge.

This is an appeal taken from a declaratory judgment proceeding, the action being instituted in order to determine ownership of a motor vehicle for purposes of assessing liability under the Michigan Vehicle Code.

Plaintiff's decedent was killed in a motor vehicle collision on April 13, 1969. The deceased was a passenger in a car owned by defendant James Gallagher and driven by defendant Ramona Gallagher. The Gallagher vehicle collided with a 1962 Oldsmobile driven by defendant, Charles W. Pointer, bearing license plates issued to Pointer for a 1961 Ford. The last registered owner of the 1962 Oldsmobile immediately prior to the accident date as contained in the records of the title and registration division of the Office of the Michigan Secretary of State was defendant-appellant Associates Discount Corporation. Associates disclaimed ownership of the vehicle as of the accident date on the basis that it had sold the car and transferred title for it to one Ramon Hernandez on January 13, 1969. ¹ The title document which allegedly transferred title on that date was lost. Testimony at trial centered around the focal issue of whether Associate Discount Corporation had complied with the applicable provisions of the Michigan Vehicle Code in order to effectuate a valid transfer of title. The pertinent statutory sections are as follows:

'(d) The owner shall indorse on the back of the certificate of title an assignment thereof with warranty of title in the form printed thereon with a statement of all security interests in said vehicle or in any accessory thereon, sworn to before a notary public or some other person authorized by law to take acknowledgments, and deliver or cause the same to be mailed or delivered to the department or to the purchaser or transferee at the time of the delivery to him of such vehicle, which shall show the payment or satisfaction of any security interest as shown on the original title.' M.C.L.A. § 257.233(d); M.S.A. § 9.1933(d).

'The owner of a motor vehicle who has made a bona fide sale by transfer of his title or interest and who has delivered possession of such vehicle and the certificate of title thereto properly endorsed to the purchaser or transferee shall not be liable for any damages thereafter resulting from negligent operation of such vehicle by another.' M.C.L.A. § 257.240; M.S.A. § 9.1940.

The 1962 Oldsmobile driven by Charles Pointer on April 13, 1969, came into the possession of Associates Discount on November 19, 1968, as a result of its repossession from a third party due to a default in monthly installment payments. After repossession, Associates Discount filed an affidavit of repossession with the office of the Secretary of State and was issued a repossession of title. The vehicle was stored in a lot run by Great Lakes Recovery Service, which was in the business of repossessing automobiles. Patrick Waters, an employee of Great Lakes, testified that Ramon Hernandez offered to purchase the vehicle in question, and, consequently, an order for purchase was filled out in the name of Mr. Hernandez and submitted to Associates Discount. Witness Waters' testimony was equivocal with respect to whether he saw Hernandez sign the order, whether he saw the title notarized at Associates Discount's office and whether he saw Associates Discount's employee sign the title. James Stoyanovich, an employee of Associates Discount, testified he accepted the order, signed the transfer portion of the repossession title, had his own signature notarized, placed Mr. Hernandez's name as transferee on said title, and turned the document over to Waters for delivery to Hernandez. Witness Hernandez testified that when he received the certificate of title from Waters he did not observe his name typed or printed on the back of it, nor had he himself ever filled in his own name on it, and that he had never signed the purchase order for the vehicle in question. Hernandez further stated that he received the certificate of title from Waters several days after obtaining possession of the 1962 Oldsmobile. This statement was contradicted by Waters who testified that the automobile and title were turned over to Hernandez on the same day though he was not certain whether this occurred on January 13th or 14th. In the latter part of January, 1969, Hernandez traded the Oldsmobile to Charles Pointer, delivering to him both the vehicle and the repossession title. Pointer kept possession of the vehicle, but, subsequently, left the certificate of title at Hernandez' house allegedly because it was not indorsed by Associates Discount Corporation. Hernandez testified he did not receive the certificate of title.

The jury ultimately returned a verdict against defendant Associates Discount Corporation, in effect, determining that it was the title owner of the motor vehicle in question on the date the fatal accident occurred. From this verdict defendant-appellant brings the present appeal asserting four grounds for reversible error, the last of which is without merit.

On April 17, 1970, plaintiff filed a motion for summary judgment against defendant-appellant asserting that no genuine issue of fact existed regarding the issue of ownership of said 1962 Oldsmobile on April 13, 1969. Attached to this motion was a certified copy of the repossession certificate of title from the Michigan Secretary of State's office establishing Associates Discount as the last registered owner of the vehicle prior to the accident date, thereby constituting Prima facie evidence that it was the owner of said Oldsmobile on April 13, 1969. On May 20, 1970, defendant Associates Discount Corporation filed a motion for summary judgment supported by the affidavits of Waters, Stoyanovich and Hernandez, the cumulative effect of which asserted that Associates Discount had done all those things required of it by § 233 of the Michigan Motor Vehicle Code to have effected a transfer of ownership of the Oldsmobile to Ramon Hernandez prior to the accident date of April 13, 1969. ² See appendix. No affidavits, exhibits or other evidence were filed by any party disputing the asserted facts in the affidavits supporting Associates Discount's motion for summary judgment. Novertheless, after argument, immediately prior to the opening of trial, Associates Discount's motion was denied. Defendant-appellant asserts, as its first ground for reversal, that the trial court erred in refusing to grant its motion for summary judgment, there being no genuine issue of fact existing as to ownership.

The conclusion that defendant-appellant requested the court to reach without a trial was in direct conflict with the presumption created by the certificate of title presented to the court with plaintiff's motion for summary judgment. This Court has repeatedly adhered to the proposition that the purpose of summary judgment is not to force the parties to try a case by affidavit--that one has a right to trial where there is a disputed issue of fact. Sun Oil Co. v. Rosborough, 6 Mich.App. 176, 179, 148 N.W.2d 536 (1967). Consequently, whenever a presented issue of material fact turns upon the credibility of a witness or affiant, thereby making credibility a crucial factor, summary judgment should not be granted. Arber v. Stahlin, 382 Mich. 300, 309, 170 N.W.2d 45 (1969); Durant v. Stahlin, 375 Mich. 628, 647--648, 135 N.W.2d 392, 398 (1965). As the Court in Durant so aptly put it:

'(W)hen resolution of a disputed issue of fact, presented by conflicting affidavits or other proofs, depends upon the credibility of an affiant or witness, the trial judge engaged in an inquiry on motion for summary judgment must not usurp a trial jury's right, nor may he anticipate his own right as the trial fact finder, if such he may become later at trial, to determine the affiant's credibility. Judge Frank, in Arnstein v. Porter, 154 F.2d 464 (CA 2, 1946), a copyright infringement suit, emphasized the impropriety of granting summary judgment where the credibility of an affiant may be crucial to decision of a disputed fact issue thus presented notwithstanding the opposing party's failure to attempt even to discredit the honesty of affiant by counter-affidavits or other proofs. Quite properly, we believe, Judge Frank underscored the importance of cross-examination at trial when the fact-finding process may turn upon the credibility of a witness (pp. 469, 471):

"But even if we were to disregard the improbable aspects of plaintiff's story (contained in a deposition), there remain parts by no means 'fantastic.' On the record now before us, more than a million copies of one of his compositions were sold; copies of others were sold in smaller quantities or distributed to radio stations or band leaders or publishers, or the pieces were publicly performed. If, after hearing both parties testify, the jury disbelieves defendant's denials, it can, from such facts, reasonably infer access. It follows that, as credibility is unavoidably involved, a genuine issue of material fact presents itself. With credibility a vital factor, plaintiff is entitled to a trial where the jury can observe the witnesses while testifying.

"But where, as here, credibility, including that...