Hansen v. Kuhn
| Decision Date | 04 April 1939 |
| Docket Number | 44637. |
| Citation | 285 N.W. 249,226 Iowa 794 |
| Parties | HANSEN v. KUHN et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Pottawattamie County; H. J. Mantz Judge.
Action for damages for personal injuries alleged to have been received in a collision between two motor trucks. Judgment against Kuhn, from which he has not appealed. Judgment on a directed verdict for Van Druff. Plaintiff has appealed from the latter judgment.
Judgment is affirmed.
Mayne & Mayne, of Council Bluffs, for appellant.
Frank E. Northrop and Elmer Ogren, both of Council Bluffs, for appellee.
The controlling question in this case is whether the appellee Van Druff, as the assignee from the vendor in a conditional sales contract of a motor truck to Kuhn, the vendee, was the " owner", under paragraph 8 of Section 4863, of the Code of 1935, so as to be liable, under Section 5026, to one injured by Kuhn in the operation of said truck. It is very questionable whether there is any liability under the facts attending the collision, as they appear from the record, but we believe the answer to the legal question above stated is decisive of the case. For clarity we will refer to Kuhn, as the defendant.
On November 13, 1935 the Quick Motors sold Kuhn a Ford truck for $494.52, of which he paid $75 then, and executed his promissory note for the balance, payable in twelve, equal monthly installments. Title to the truck was reserved in the seller for the purpose of securing to him the payment of the purchase price. For default in any payment, or for depreciation in value, or whenever the seller or assignee felt unsafe, he might take possession of the truck, and upon notice sell it at public auction and apply the proceeds on the debt, with any excess going to the vendee. There are certain other provisions and limitations in the contract, but none of them bear upon the question before us. On the day of their execution the seller assigned to the appellee the contract and the note. The contract was recorded. The truck was registered in the office of the county treasurer of Pottawattamie County, in the name of Kuhn, and the certificate of registration was issued. The truck was at all times thereafter in the possession of Kuhn. The contract was never in default, and the truck had at no time been repossessed by the seller or the assignee. On December 5, 1935, the defendant Kuhn while driving the truck on a highway a few miles east of Council Bluffs collided with another truck, thereby injuring the appellant who claimed he was riding in the defendant's truck.
Upon the appellee's objection that the contract did not show ownership of the truck in the appellee, or that it was being operated with his knowledge or consent, the trial court refused its admission, and also refused all other testimony as against the appellee. At the close of the appellant's testimony, the appellee moved for a directed verdict in his favor upon several grounds, but all were bottomed on the fact that he was not the owner of the truck. This motion was sustained generally, and judgment for the appellee was entered thereon.
Since the injury occurred prior to the adoption of the new motor vehicle act, by the 47th General Assembly, the definition of " owner" as found in paragraph 33 of Section 1 of Chapter 134 of the acts of that assembly, has no application. The appellant concedes that, under that definition, the appellant would have no standing, but he insists, that, under the definition as found in Par. 8 of Section 4863 of the Code of 1935, the appellee is liable, under Section 5026 of that Code.
Paragraph 8 of Section 4863 is in the words following: " ‘ Owner’ shall include any person having the lawful ownership, use or control, or the right to the use or control, of a motor vehicle, under a lease or otherwise, for a period of ten or more successive days."
Section 5026 provides: " In all cases where damage is done by any car driven by * * consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage."
Paragraph 8 of Section 4863 does not purport to define the term " owner" . It simply states that any person, who comes within the specification, therein stated, shall be included in the term " owner" . The paragraph is not all inclusive.
It is not necessary for a decision of this case that we define the term " owner", or that we construe paragraph 8 of Section 4863, in all its phases, or to determine all the possible classes of owners which might come within its purview. Our duty is limited to determining whether the appellee was such a person as the legislature intended to include within the term " owner" as specified in that paragraph.
To have been included therein the appellee must have had, either the " lawful ownership, use or control" of the truck under his contract, or he must have had " the right to the use or control" of the truck under his contract. In our judgment he was in neither status.
The transaction between the Quick Motors and Kuhn was undoubtedly a conditional sale. It was not a contract of bailment, nor was it a lease in the ordinarily accepted meaning of that term. Kuhn bought the truck. The only matter held in abeyance was the completed payment. He became the beneficial owner, the equitable owner, the substantial owner, immediately upon the execution of the contract. Only the naked title remained in the seller, subject to being completely divested, upon the receipt of the final deferred installment of the purchase price. Other than the matter of payment, such a sale transaction is in nowise different from an absolute sale. The New Hampshire court, in Mercier v. Nashua Buick Co., 84 N.H. 59, 146 A. 165, 168, spoke of it thus:
The criterion by which to identify a conditional sale was announced by this court, in Bentley & Olmstead v. Snyder & Son, 101 Iowa 1, 6, 69 N.W. 1023, 1025, in this language:
If, under the contract, the possessor is clearly obligated to pay for the article sold, it is a conditional sales contract, even though the words " sell", " sold", or " sale" be absent from the writing. Maxwell Motor Sales Corporation v. Bankers' Mortgage & Securities Co., 195 Iowa 384, 192 N.W. 19.A statement of the same principle may be found in Norwegian Plow Co. v. Clark, 102 Iowa 31, 70 N.W. 808; Henney Buggy Co. v. Cathels et al., 110 Iowa 24, 81 N.W. 164; Norton v. Fisher, 113 Iowa 595, 85 N.W. 801; Mahnke v. Marken Acres Co., 187 Iowa 762, 174 N.W. 669; General Motors Acceptance Corporation v. Whiteley, 217 Iowa 998, 252 N.W. 779; Hart v. Wood, 202 Iowa 58, 209 N.W. 430; Donnelly v. Mitchell, 119 Iowa 432, 93 N.W. 369.
Under the above stated test, the writing in this case was a conditional sale contract.
Having concluded that the contract was one of conditional sale, it must be determined what were the respective rights and obligations of the appellee and the defendant, pertaining to the truck, under the contract. Necessarily the naked title remained in the seller, until transferred to the assignee. Such retention is an essential of a conditional sale contract. Brief in Johnson Forge Co. v. Leonard, 3 Pennewell, Del., 342, 51 A. 305, 57 L.R.A. 225, 94 Am.St.Rep. 94.But such title is retained solely for the purpose of security. The other attributes of ownership, such as possession, use, control, or the right thereto, under such a contract, pass to the purchasing vendee. It is true there is, ordinarily, in the vendor or his assignee, a limited right of restriction in some of these matters, but save, as so limited, these rights of the vendee are absolute. In setting out the essence of a conditional sale, as contemplated in Section 2905, Code of 1897 (Sect. 10016, Code of 1935), we said, in Donnelly v. Mitchell, 119 Iowa 432, 437, 93 N.W. 369, 371:" To constitute a conditional sale within the terms of the statute, there must be a delivery of possession to the purchaser, with the intention of passing immediate ownership, subject only to the reservation of title to the seller as security for the purchase money." (Italics ours.) We have since reaffirmed this principle, in Maxwell Motor Sales Corp. v Bankers' Mort. & Sec. Co., supra; Greenlease-Lied Motors v. Sadler, 216 Iowa 302, 308, 249 N.W. 383; Miller & Kizer v. Des Moines City Ry. Co., 196 Iowa 1033, 1036, 195 N.W. 600; Firestone Tire & Rubber Co. v. Anderson, 190 Iowa 439, 180 N.W. 273; Handlan-Buck Mfg. Co. v. Waterloo Drop Forge Co., 173 Iowa 452, 460, 155 N.W. 802; Kammeier v. Chauvet et al., ...
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