Hartford Fire Ins. Co. v. Knight

• Decision Date: 18 April 1927
• Docket Number: 26089
• Citation: 111 So. 748,146 Miss. 862
• Court: Mississippi Supreme Court
• Parties: HARTFORD FIRE INS. CO. v. KNIGHT. [*]

111 So. 748

146 Miss. 862

HARTFORD FIRE INS. CO. v. KNIGHT. ^[*]

No. 26089

Supreme Court of Mississippi

April 18, 1927

(In Banc.)

1 INSURANCE. Insured's failure to comply with law requiring written memorandum on sale of automobile held not to defeat recovery under policy requiring unconditional ownership (Laws 1920, chapter 222, section 2).

Failure of insured to comply with Laws of 1920, chapter 222, section 2, requiring written memorandum on sale of automobile with address of seller and person to whom seller purchased, held not sufficient to defeat recovery under policy providing that interest of insured must be that of unconditional and sole ownership, since failure to comply with such statute did not affect the validity of contract of sale, and purchaser by virtue thereof became the sole and unconditional owner of automobile.

2 CONTRACTS. Contract in violation of statute is not void if it appears that legislature in prohibiting it did not so intend.

A contract made in violation of a statute is not void if it appears from the statute prohibiting the making of it that the legislature did not so intend.

3 CONTRACTS. Contract in contravention of statute, containing nothing from which contrary can be inferred, is void.

When a statute is silent and contains nothing from which the contrary can be properly inferred, a contract in contravention therewith is void; but in determining whether contrary can be properly inferred, courts will look to language of statute, subject-matter, and purpose sought to be accomplished in its enactment.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Covington county, HON. W. L. CRANFORD, Judge.

Action by Curtis C. Knight against the Hartford Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Reversed and remanded.

R. L. McLaurin and T. J Wills, for appellant.

It is the contention of the appellant that the failure of the plaintiff, appellee, to demand and receive and the failure of Martin who sold the car to give the memorandum provided by chapter 222, Laws of 1920, in violation of the law, prevented the passing of the title to the car from Martin to appellee, and that the title remained in Martin.

If the title did not pass and become vested in appellee as the sole and unconditional owner, then the terms and conditions of the policy were breached and plaintiff was not entitled to recover on the contract. Hartford Fire Ins. Co. v. McCain, 106 So. 529; Royal Ins. Co., Ltd., v. Shirley, 106 So. 884.

The state of Missouri has a similar statute to chapter 222, Laws of 1920. The question of ownership and the right to recover insurance where the Missouri statute had not been complied with was before the supreme court of Kansas in Miller v. Co. Underwriters' Ins. Co., 117 Kans. 240. The Kansas court held that this statute was intended to protect against theft and, therefore, was to be construed so as not to pass the title without a compliance therewith.

The Missouri court in passing on its statute just about three weeks later, in the case of Connecticut Fire Ins. Co. v. Cox, 268 S.W. 87, held that the motor vehicle law requiring sellers of automobiles to make an assignment on the back of the certificate of title is mandatory; that it is essentially a police regulation of the highest type; and where the seller fails to comply strictly therewith, the buyer acquires no title. See, also, Hammond v. Motor Co. v. Warren, 113 Kans. 44, 213 P. 810; Morris v. Firemen's Ins. Co. of New Jersey, 247 P. 852. In Ohio Farmers' Ins. Co. v. Todino, 111 Ohio St. 274, 145 N.E. 25, the Ohio court had occasion to interpret a similar statute and to expressly state the effect of a noncompliance with the statute and the effect upon an insurance contract containing the sole and unconditional ownership clause in the policy. See, also, Pope v. Glen Falls Ins. Co. (Ala.), 34 So. 29.

Plaintiff was not entitled to recover for the reason that he was not the sole and unconditional owner of the car, having acquired it in violation of the statute, and a directed verdict should have been given to the defendant.

Plaintiff should not have been allowed to recover for the additional reason that under section 7, chapter 222, Laws of 1920, plaintiff in failing to obtain a bill of sale to the subject of the insurance, the automobile in question, at the time of his purchase, and in the exercise of ownership therein afterwards, without a bill of sale, committed a misdemeanor which was a continuing violation of the law, and that this state of facts existed when the policy was taken out and continuously thereafter until the time of the fire. Ohio Farmers' Ins. Co. v. Todino, 111 Ohio St. 274. See, also, I. C. R. R. Co. v. Messeina, 111 Miss. 884; Woodson v. Hopkins, 85 Miss. 171; Mitchell v. Campbell, 111 Miss. 806; W. U. Telegraph Co. v. McLaurin, 108 Miss. 273. This last case is particularly applicable as therein it was positively held that, "A wrongdoer cannot ground his case upon his own wrong," and "When it appears that plaintiff's right of recovery is based upon his own wrong, the courts will bring his case to an end, and disregard the wrongs of defendant." We also call particular attention to Pollard v. Phenix Ins. Co., 63 Miss. 244; Firemen's Fund Ins. Co. v. Haley, 129 Miss. 525.

E. L. Dent, for appellees.

If the defense of breach of warranty as to sole and unconditional ownership of the automobile was relied upon to relieve the company of liability, the fact should have been specially pleaded. Western Assur. Co. v. Ferrell, 92 Miss. 103, 40 So. 8; Liverpool, etc., Ins. Co. v. Farnsworth, 72 Miss. 555, 17 So. 445; Hartford Fire Insurance Co. v. McCain, 106 So. 529; Royal Ins. Co. v. Shirley, 106 So. 884. The caption of chapter 222, Laws of 1920, is a sufficient answer to appellant's brief.

It was not intended to place the sale of automobile within the statute of frauds insofar as passing of title from the seller to the buyer. The memorandum required to be furnished by the seller and preserved by the buyer is solely for inspection by any sheriff, constable, justice of the peace, mayor, marshal, or police officer, in the event such car should probably be stolen. We are unable to appreciate how the lack of such memorandum would in any way affect the title to the automobile. 27 C. J. 309; 20 Cyc. 307.

Supplemental brief for appellee, by E. O. Sykes and E. L. Dent.

The question involved is so far reaching. The contention of the appellant is that under this law no man can own his automobile who has not a written bill of sale made out exactly in the language of the statute. That all insurance on automobiles in such cases is absolutely void. Apparently the language of some of the courts in construing statutes which are not exactly like ours bear out this contention. Upon careful analysis of them, however, there are certain vital differences either in the wording of these statutes or in the construction put upon them by the courts. For example take the case in 37 A. L. R., page 1456, with an extensive note thereto. The court will note from the reading of that statute that it expressly provides that the sale is void and no title passes. Compare the language there with our law which merely makes it unlawful to fail to procure a bill of sale. The sale is not void. There is nothing unlawful in buying an automobile.

The Texas law is quite similar to ours. The Texas court in a very satisfactory opinion has construed this law as not invalidating this insurance. Hennessey v. Automobile Owners' Ass'n, 282 S.W. 791.

OPINION

SMITH, C. J.

The appellee sued the appellant on a fire insurance policy issued to him by the appellant on an automobile, which was destroyed by fire, and, from a judgment in favor of the appellee, the appellant has brought the case to this court.

The policy provides that it shall be void "if the interest of the assured in...