Case v. Universal Underwriters Ins. Co., No. 9942
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | Before BILLINGS; BILLINGS |
| Citation | 534 S.W.2d 635 |
| Docket Number | No. 9942 |
| Decision Date | 12 March 1976 |
| Parties | Dorothy CASE, Plaintiff-Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Defendant-Respondent. |
Page 635
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Defendant-Respondent.
Motion for Rehearing or To Transfer to Supreme Court Denied
March 25, 1976.
Application To Transfer Denied April 14, 1976.
Page 636
Donald W. Jones, Prewitt, Jones & Karchmer, Russell G. Clark, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for plaintiff-appellant.
B. H. Clampett, William D. Powell, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendant-respondent.
Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.
BILLINGS, Chief Judge.
Suit in equity under § 379.200, RSMo 1969, to reach and apply insurance money to satisfy a judgment. Appellant Dorothy Case had obtained a $45,000 judgment against Jon Devine for personal injuries arising from a vehicular collision involving a 1965 Corvair automobile driven by Jon Devine. In this suit the trial court concluded Devine was the lawful owner of the Corvair at the time of the collision and respondent's garage liability policy, issued to Frank Dreier Pontiac-Cadillac, afforded no coverage on the Corvair. We conclude otherwise and reverse and remand for entry of judgment in favor of appellant.
The case was submitted to the trial chancellor on the pleadings, stipulation, exhibits and depositions. Our review is upon the law and evidence (Rule 73.01), and being de novo, we reach our own conclusions therein and give such judgment as should
Page 637
have been given if we decide the lower court's judgment is erroneous. Rule 84.14. Credibility of witnesses is not here involved and the rule of deference mandated by Rule 73.01 is not applicable. Meyers v. Smith, 375 S.W.2d 9 (Mo.1964); Mid-Continent Nat'l Bank v. Bank of Independence, 523 S.W.2d 569 (Mo.App.1975); Smith v. Thomas, 520 S.W.2d 132 (Mo.App.1975).In order to arrive at the controlling issue in this appeal, a history of the various transactions involving the 1965 Corvair is necessary.
1. August 20, 1966, William M. Whitaker purchased the used Corvair from the Turner Chevrolet Agency for his son, William M. Whitaker, Jr. Because the son was either under age or had no prior credit standing with General Motors Acceptance Corporation (GMAC), the sale was made to Mr. Whitaker. The father signed the note and security agreement for the Corvair, and the certificate of title (No. 356427) was duly assigned and delivered by the dealer to William M. Whitaker. A new certificate of title (No. 5655949), describing William M. Whitaker as the registered owner of the Corvair and GMAC as lien holder, was issued by the Missouri Department of Revenue. This certificate of title was forwarded to GMAC in St. Louis and remained there until August 7, 1969.
2. May 16, 1969, William M. Whitaker, Jr., took the Corvair to the Frank Dreier Pontiac-Cadillac Agency at Flat River and traded it for a later model car. As a part of this transaction, the agency agreed to pay the balance owing GMAC. Whitaker, Jr., delivered the Corvair to the agency at the time and took possession of the later model car. The Corvair was placed on the agency's used car lot for sale. The William M. Whitaker certificate of title was not assigned the delivered at the time the Corvair was delivered to Frank Dreier Pontiac-Cadillac.
3. July 26, 1969, Jon Devine, a minor employed by Frank Dreier Pontiac-Cadillac, purchased the Corvair from his employer and was given possession of the car. No certificate of title to the Corvair was delivered to Devine.
4. August 4, 1969, Frank Dreier Pontiac-Cadillac paid GMAC the balance due on William M. Whitaker's note.
5. August 7, 1969, GMAC released its lien on the Corvair and mailed the William M. Whitaker certificate of title (No. 5655949) to Frank Dreier Pontiac-Cadillac.
6. August 8, 1969, the assignment portion of the certificate of title was signed with the name of 'William M. Whitaker' and notarized as of that date. The re-assignment by a registered dealer portion of the certificate of title shows an assignment by Frank Dreier Pontiac-Cadillac to Jon Devine dated and notarized on July 24, 1969, and shows a lien in favor of the agency under date of July 4, 1969. This certificate of title was forwarded to the Department of Revenue in Jefferson City. The same notary public, an employee of Frank Dreier Pontiac-Cadillac, took both acknowledgements.
7. August 29, 1969, a new certificate of title (No. A847644) to the Corvair, describing Jon Devine as owner and Frank Dreier Pontiac-Cadillac as lien holder, was issued by the State of Missouri and mailed to the agency.
Other facts considered by the trial court in ruling the case and not in dispute are as follows:
(a) William M. Whitaker, the father, was described as the registered owner of the Corvair on certificate of title No. 5655949 and never assigned the certificate of title to Frank Dreier Pontiac-Cadillac.
(b) William M. Whitaker, Jr., had exclusive use and possession of the Corvair from the time it was purchased until traded to Frank Dreier Pontiac-Cadillac. Whitaker, Jr., made all the payments to GMAC until the Corvair was traded to Frank Dreier Pontiac-Cadillac.
(c) Jon Devine agreed to purchase the Corvair from Frank Dreier Pontiac-Cadillac
Page 638
on July 24, 1969, for $695 and was to pay this sum by his employer withholding $15 per week from his salary.(d) An application for title for the Corvair, showing Devine as purchaser and the agency as a lien holder as of July 4, 1969, and requesting the new certificate of title be mailed to Frank Dreier Pontiac-Cadillac, was prepared by that agency on July 26, 1969. Devine signed the application for title and took copies of it to the local branch office of the Department of Revenue where he paid sales tax and fees and was issued license plates for the car. The document was forwarded to Jefferson City and placed in a 'suspense file' to await receipt of the lien perfection copy of the application for title and the outstanding certificate of title to the Corvair (No. 5655949).
(e) Jon Devine had exclusive use, control and possession of the Corvair from July...
To continue reading
Request your trial
-
Nooter Corp. v. Allianz Underwriters Ins. Co., No. ED 103835
...cites MFA Mut. Ins. Co. v. Home Mut. Ins. Co. , 629 S.W.2d 447, 449 (Mo. App. W.D. 1981) and Case v. Universal Underwriters Ins. Co. , 534 S.W.2d 635 (Mo. App. S.D. 1976).41 We note that, even assuming arguendo that Munich's suggested standard of review applied, we would reach the same resu......
-
L.W.F., In Interest of, No. 17496
...is not involved, the rule of deference mandated by Rule 73.01(c)(2) is not applicable. Case v. Universal Underwriters Insurance Co., 534 S.W.2d 635, 637 (Mo.App.1976)." Southgate Bank and Trust Co. v. May, 696 S.W.2d 515, 519 In respect to administrative proceedings the following rule is ap......
-
Horton v. State Farm Fire & Cas. Co., No. 37260
...rebutted. Evidence that the certificate was not properly assigned can constitute such rebuttal. Case v. Universal Underwriters Ins. Co., 534 S.W.2d 635 (Mo.App.1976) (3, 4). The Missouri courts have consistently held that absolute technical compliance with Sec. 301.210 is required, otherwis......
-
Safeco Ins. Co. of Ill. v. Palazzolo, Case No. 4:18CV1326HEA
...law similarly indicates that it usually involves establishing either title, see, e.g., Case v. Universal Underwriters Insurance Company, 534 S.W.2d 635 (Mo. App. 1976) (title establishes a rebuttable presumption of ownership), or the power to ‘voluntarily destroy, encumber, sell, or otherwi......
-
Nooter Corp. v. Allianz Underwriters Ins. Co., No. ED 103835
...cites MFA Mut. Ins. Co. v. Home Mut. Ins. Co. , 629 S.W.2d 447, 449 (Mo. App. W.D. 1981) and Case v. Universal Underwriters Ins. Co. , 534 S.W.2d 635 (Mo. App. S.D. 1976).41 We note that, even assuming arguendo that Munich's suggested standard of review applied, we would reach the same resu......
-
L.W.F., In Interest of, No. 17496
...is not involved, the rule of deference mandated by Rule 73.01(c)(2) is not applicable. Case v. Universal Underwriters Insurance Co., 534 S.W.2d 635, 637 (Mo.App.1976)." Southgate Bank and Trust Co. v. May, 696 S.W.2d 515, 519 In respect to administrative proceedings the following rule is ap......
-
Horton v. State Farm Fire & Cas. Co., No. 37260
...rebutted. Evidence that the certificate was not properly assigned can constitute such rebuttal. Case v. Universal Underwriters Ins. Co., 534 S.W.2d 635 (Mo.App.1976) (3, 4). The Missouri courts have consistently held that absolute technical compliance with Sec. 301.210 is required, otherwis......
-
Safeco Ins. Co. of Ill. v. Palazzolo, Case No. 4:18CV1326HEA
...law similarly indicates that it usually involves establishing either title, see, e.g., Case v. Universal Underwriters Insurance Company, 534 S.W.2d 635 (Mo. App. 1976) (title establishes a rebuttable presumption of ownership), or the power to ‘voluntarily destroy, encumber, sell, or otherwi......