Grain Dealers Mut. Ins. Co. v. Julian, 18436

• Decision Date: 13 December 1965
• Docket Number: No. 18436,18436
• Citation: 145 S.E.2d 685,247 S.C. 89
• Parties: GRAIN DEALERS MUTUAL INSURANCE COMAPNY, Appellant, v. Charles A. JULIAN, Philip Cohen, Dinah K. Dworsky, Mary Berman, and Lumbermen's Mutual Casualty Comapny, Respondents.
• Court: South Carolina Supreme Court

Page 685

145 S.E.2d 685

247 S.C. 89

GRAIN DEALERS MUTUAL INSURANCE COMAPNY, Appellant, v. Charles A. JULIAN, Philip Cohen, Dinah K. Dworsky, Mary Berman, and Lumbermen's Mutual Casualty Comapny Respondents.

No. 18436.

Supreme Court of South Carolina.

Dec. 13, 1965.

Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Love, Thornton, Arnold & Thomason, Greenville, W. Jerry Fedder, Seneca, for respondents.

MOSS, Justice.

This action is one under the 'Uniform Declaratory Judgments Act', Section 10-2001, et seq., 1962 Code of Laws. It is brought by Grain Dealers Mutual Insurance Company, the appellant herein, for a determination of its liability, if any, arising under a combination automobile policy issued by it, on August 3, 1961, to Charles A. Julian, one of the respondents herein.

The insuring agreement contained in said policy provides:

'1. Coverage A--Bodily Injury Liability: To pay on behalf of the Insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.'

Attached to and forming a part of the aforesaid policy was an endorsement that:

'2. The insurance does not apply

'(a) to any automobile owned by the named insured * * *.'

It is stipulated that on June 16, 1962, a 1949 Plymouth automobile operated by Charles A. Julian was in a collision on U. S. Highway 123, in the City of Easley, with a Buick automobile owned by Mary Berman, and at the time of the collision operated by Dinah K. Dworsky, in which Mary Berman and Philip Cohen, the respondents herein, were passengers; that as a result of said collision the respondents claim to have received personal injuries, the extent and nature of which are not pertinent hereto, and claim that Charles A. Julian is liable to them by reason of their injuries.

At the time of the collision which resulted in injuries to the respondents Cohen, Dworsky and Berman, there was in full force and effect an automobile liability insurance policy issued by Lumbermen's Mutual Casualty Company, a respondent herein, insuring the Buick automobile belonging to Mary Berman. Attached to and forming a part of this policy was an uninsured motorist endorsement written in compliance with Sections 46-750.13 and 46-750.14 of the Code, providing for the payment, within policy limits, of all sums which the individual respondents herein named shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile. An uninsured automobile was defined in said policy as including one as to which there was a successful denial of coverage by a liability insurer.

It appears that coverage under either policy here involved was subject to a limitation of $10,000.00 for bodily injuries sustained by any one person and a maximum of $20,000.00 for bodily injuries sustained by two or more persons in any one accident. There is also a limitation of $5,000.00 for all property damage as a result of any one accident.

The controlling issue for determination is the question of ownership of the 1949 Plymouth automobile driven by Charles A. Julian at the time of the collision with the Buick Automobile owned by Mary Berman and operated by Dinah K. Dworsky. If the 1949 Plymouth automobile which Julian was driving was not owned by him, the policy of the appellant would provide liability protection to Julian for claims asserted against him by Berman, Dworsky and Cohen. If the said automobile was owned by Julian, the policy of the appellant would not afford coverage and the policy of Lumbermen's Mutual Casualty Company would provide uninsured motorist protection for the benefit of the aforesaid injured persons. It is the contention of the appellant that Julian was the owner of the 1949 Plymouth automobile. Lumbermen's contends that the automobile was not owned by Julian at the time of the accident.

The issues made by the pleadings were referred to a special referee to take the testimony and to report to the court his findings of fact and conclusions of law. A hearing was held by said special referee and, thereafter, he filed his report finding that the 1949 Plymouth automobile was on the date of the accident owned by Julian and concluded, therefore, that no coverage was afforded under the liability policy of the appellant. Lumbermen's excepted to the said report and alleged error in finding (1) that Marion Davis executed and gave a bill of sale to Charles Julian prior to June 1962; (2) that the referee considered testimony concerning the alleged bill of sale given by Marion Davis to Charles Julian over the objection of counsel for Lumbermen's when such testimony was inadmissible; (3) that the referee erred in finding that Julian owned the 1949 Plymouth automobile when he had never received a Title Certificate from the South Carolina Highway Department; and (4) in holding, as a matter of law that is was not necessary that the owner of a motor vehicle have a Title Certificate issued by the Highway Department. $The exceptions to the report of the special referee were heard by the Honorable Frank Eppes, Resident Judge. By his order, dated November 17, 1964, he reversed the report of the special referee, holding (1) that Julian was not the owner of the 1949 Plymouth automobile at the time of the collision and liability insurance coverage was afforded under the liability policy of the appellant; (2) that the special referee committee error in considering the testimony objected to by Lumbermen's concerning a purported bill of sale by Marion Davis to Julian; and (3) that the securing of a Certificate of Title from the Highway Department was indispensable to the ownership of a motor vehicle and that a change in ownership of an automobile is not consummated until such certificate is duly assigned and delivered. This appeal followed.

Prior to Christmas 1961, one W. J. Brissey was the owner of the 1949 Plymouth automobile in question. Just before Christmas Brissey was given a 1959 Edsel automobile by his son-in-law, Marion Davis, and his daughter, Mrs. Davis. At the same time Brissey gave the 1949 Plymouth automobile to Marion Davis and he 'told him he could dispose of it any way he wanted to.' Brissey testified that he gave to Davis a bill of sale for the 1949 Plymouth automobile 'the next week sometime.' Brissey testified that after the aforesaid events he did not exercise any of the incidents of ownership or control over the Plymouth automobile nor did he maintain insurance thereon.

Marion Davis was called as a witness for the appellant and in the main confirmed the testimony of Brissey. He testified that on January 6, 1962, he sold the 1949 Plymouth automobile to Charles A. Julian. The sale price was $300.00 and it was agreed that this price would be paid in weekly installments of $12.00 each over a twenty-five week period. Julian executed to Davis a chattel mortgage on the same date creating a lien over the automobile in favor of the seller. In such mortgage, Julian represented that he was the sole owner of the automobile. Davis delivered to Julian the 1961 registration card for said automobile, the 1962 card having been lost or misplaced by Brissey. Davis testified that he prepared a bill of sale conveying the said automobile to Julian but the purchaser did not immediately pick up the bill of sale. However, following the date of the sale but prior to the accident on June 16, 1962, the bill of sale was picked up by Julian. Davis testified that after January 6, 1962, he exercised none of the incidents of ownership or control over the automobile but as far as he was concerned, the car was owned by Julian. Davis further testified that Julian paid in full the purchase price of the automobile and the chattel mortgage hereinbefore referred to was delivered to him. The bill of sale from Davis to Julian was not produced and never offered in evidence.

Lumbermen's, through its counsel, objected to any testimony concerning the bill of sale from Davis to Julian upon the ground that the bill of sale would be the best evidence. However, during the cross-examination of Davis and without reserving the objection previously made, counsel examined Davis regarding the bill of sale. We have held that where a witness who had testified, was cross-examined without reservation on the same subject, exception to the testimony is thereby rendered untenable, and the right to challenge the ruling thereabout about was thereby waived. Richardson v. Register, 227 S.C. 81, 87 S.E.2d 40; Gary v. Jordan, 236 S.C. 144, 113 S.E.2d 730. It...