Greer v. Zurich Ins. Co.

Decision Date12 May 1969
Docket NumberNo. 1,No. 53278,53278,1
Citation441 S.W.2d 15
CourtMissouri Supreme Court
PartiesJohn W. GREER and Shirley Mae Greer, Appellants, v. ZURICH INSURANCE COMPANY, a Corporation, Respondent, and Western Casualty & Surety Company, a Corporation, and the Fidelity & Casualty Company of New York, a Corporation, Appellants, and MFA Mutual Insurance Company, a Corporation, Respondent

Richard C. Collins, Bolivar, Daniel, Clampett, Ellis, Rittershouse & Dalton, B. H. Clampett, Springfield, for John W. Greer and Shirley Mae Greer.

Miller, Fairman, Sanford, Carr & Lowther, Mayte Boylan Hardie, William P. Sanford, Springfield, for Zurich Ins. Co., a Corporation.

Woolsey, Fisher, Clark, Whiteaker & Fields, Russell G. Clark, Springfield, for Western Cas. & Sur. Co.

Stewart, Reid & Turner, Kenneth H. Reid, Springfield, for The Fidelity & Cas. Co. of New York.

Almon H. Maus, Monett, for MFA Mut. Ins. Co.


This is a suit in three counts brought pursuant to §§ 379.195 and 379.200 RSMo 1959, V.A.M.S., to reach and apply the proceeds of insurance policies to the satisfaction of a judgment obtained by the plaintiffs John W. Greer and Shirley Mae Greer, his wife, against Bobby Joe McMasters for damages for personal injuries arising out of a collision of motor vehicles. The first count sought a judgment against the defendants Zurich Insurance Company, Western Casualty & Surety Company, and The Fidelity & Casualty Company. In counts 2 and 3, the plaintiffs, in the alternative, sought to establish their respective claims against MFA Mutual Insurance Company under the uninsured motorist coverage of a policy of automobile insurance issued to Mrs. Greer as owner of the automobile in which plaintiffs were riding at the time of the accident. It appears that MFA was also permitted to intervene as a party in the first count by reason of its contingent interest in the outcome of plaintiffs' claim against the other three insurance companies. For convenient reference, the defendant insurance companies will sometimes be referred to as Zurich, Western, F & C, and MFA.

Trial of all three counts was before the court without a jury. The trial judge made findings of fact and conclusions of law and rendered judgment in favor of the plaintiffs and against Western and F & C, and in favor of Zurich and against the plaintiffs on count 1 of the petition. The judgment was in favor of MFA and against the plaintiffs on counts 2 and 3. The plaintiffs have appealed from the judgment in favor of Zurich on count 1 and the judgment for MFA on counts 2 and 3. Western and F & C have appealed from the judgment against them and in favor of Zurich and the plaintiffs on count 1.

The automobile collision in which the plaintiffs were injured occurred December 25, 1962. Thereafter, the plaintiffs filed suit against Bobby Joe McMasters, the driver of the other automobile, and on November 9, 1965, obtained a $15,000 judgment which was not satisfied within thirty days as provided by § 379.200. The instant action was filed May 13, 1966. The amount involved including accrued interest on plaintiffs' judgment exceeds $15,000.

At the time of the collision, Bobby Joe McMasters, a minor, was driving a 1960 Buick LeSabre automobile. The plaintiffs contend that Bobby Joe was a permissive user of the Buick automobile and an omnibus insured under liability insurance policies issued by Western, F & C, and Zurich. The Western policy was issued to Carl Cantwell, d/b/a Carl's Used Cars of Springfield, Missouri, the F & C policy was issued to Elliott B. Young Enterprises, Inc., also a used car dealer of Springfield, the Zurich policy was issued to Commercial Credit Company, a finance corporation with offices in Springfield. Many of the facts on which the issues must be determined were stipulated. They are concerned primarily with the legal title to the Buick automobile and the right to possess and use it.

On July 25, 1962, Robert L. Oney and Betty Oney of Independence, Missouri, duly assigned the Missouri Certificate of Title for the 1960 Buick and delivered it and possession of the automobile to Van Auto Sales of Kansas City; on August 1, 1962, Van Auto Sales gave possession of the Buick to Carl Cantwell, d/b/a Carl's Used Cars, and on the same day executed the Reassignment by Registered Dealer Only on the back of the certificate of title and delivered the title so assigned to Cantwell so that 'ownership of and the legal title and certificate of title to said 1960 Buick automobile thereby was delivered and transferred to said Carl Cantwell d/b/a Carl's Used Cars'. Cantwell placed the Buick on his used car lot and on August 5, 1962, he agreed to sell it to Raymond Edwards of Crocker. Cantwell called Commercial Credit and made arrangements for a loan to Edwards of part of the purchase price. Edwards executed a Purchase Money Chattel Mortgage to Cantwell and also signed a Customers Statement. These instruments were assigned and delivered by Cantwell to Commercial Credit. The court found that Cantwell did not deliver the certificate of title to Edwards at any time.

Edwards made one monthly payment to Commercial Credit Corporation but refused to pay anything further. Representatives of Commercial Credit picked up and assumed control of the Buick automobile from Edwards on or about November 14, 1962. The trial court found that this was a repossession within the meaning of the Commercial Credit Corporation's policy of insurance with Zurich. Commercial Credit discovered that Cantwell had misrepresented the terms of his transaction with Edwards, thereby rendering himself personally liable. Commercial Credit gave Cantwell an opportunity to pay the balance of Edwards' obligation which he declined to do. Cantwell knew that Commercial Credit had assumed control of the Buick and was offering the Buick for resale. Cantwell was also given an opportunity to bid on the Buick but he declined to do so.

During the interval between November 14, 1962, and December 13, 1962 Commercial Credit had possession of the Buick at its place of business in Springfield and during this period of time it sought to obtain bids on the Buick from automobile dealers. The highest bid was submitted by the F & C's named insured, Elliott B. Young, d/b/a Elliott B. Young Enterprises. Commercial Credit gave Young possession of the Buick on or about December 13, 1962. Commercial Credit did not then have a certificate of title to the Buick and did not deliver a certificate of title to Young. The trial court found that Commercial Credit Corporation agreed to obtain a certificate of title to the Buick and assign and deliver it to Young, but it did not do so prior to the accident on December 25, 1962.

After obtaining possession of the Buick from Commercial Credit, Young processed it and placed it on his used car lot as part of his inventory in the operation of his used car business. Thereafter, Young negotiated with Bobby Joe McMasters, a minor, and his parents, C. W. McMasters and Gail McMasters, concerning the purchase of the Buick automobile. The parties agreed on a purchase price which was to be paid by the trade-in of a 1958 Ford automobile and the balance by the proceeds of a secured loan. Title to the Buick was to be placed in the names of C. W. McMasters and Gail McMasters.

On December 17, 1962, C. W. McMasters and Gail McMasters obtained a loan from Securities Investment Company and executed a chattel mortgage on the Buick to secure their promissory note. The Ford was delivered to Young and the proceeds of the loan were distributed as agreed. On the same day Young gave possession of the Buick to the McMasters family. Young did not have a certificate of title for the Buick, and there was none delivered to the mcMasters family by Young at the time of the transfer of possession of the Buick. The license plate which had been on the Ford automobile owned by the McMasters was removed from the Ford and placed on the Buick. From then until after the accident on December 25, 1962, the Buick was operated with the Ford license plate.

Between December 17 and 25, 1962, the Buick was used solely by Bobby Joe McMasters. On December 25, 1962, while driving the Buick in Dade County, he collided with a 1962 Corvair automobile occupied by the Greers. The trial court found that at the time of the accident the Buick was being used in connection with a resale by Commercial Credit Corporation following its repossession of the Buick, and that the Buick was being used by Bobby Joe McMasters with the permission of Commercial Credit Corporation, with the permission of Carl Cantwell, and with the permission of Elliott B. Young.

The trial court further found that Carl Cantwell had possession of the certificate of title for the Buick from August 1, 1962, until December 27, 1962 when he delivered it to Elliott B. Young. On the same date, Young paid Commercial Credit Corporation the purchase price of the Buick as agreed on about December 13. On December 27 or 28, 1962, Young delivered to the McMasters the Buick certificate of title which he had received from Cantwell two days after the accident. Thereafter, and before the end of the year, Cantwell paid to Commercial Credit the amount of the deficiency existing on the Edwards loan after the amount paid by Young for the Buick had been credited.

After the accident the Buick was repaired out of the proceeds of collision insurance carried by the McMasters on their Ford automobile; however, the McMasters refused to make any payments on the promissory note given by them to Securities Investment Company. In partial settlement of a suit filed by Securities Investment against C. W. and Gail McMasters the McMasters gave Securities Investment possession of the repaired Buick and the original Missouri Certificate of Title they had received from Young after he got it from Cantwell. The Buick and the certificate of title were then delivered by Securities Investment to another...

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