Libertin v. St. Paul Fire & Marine Ins. Co.
| Decision Date | 27 June 1952 |
| Docket Number | No. 9278-,9278- |
| Citation | 54 N.W.2d 168,74 S.D. 436 |
| Court | South Dakota Supreme Court |
| Parties | LIBERTIN v. ST. PAUL FIRE & MARINE INS. CO. r-BL. |
Bellamy, Eastman & Christol, Rapid City, for defendant and appellant.
H. F. Fellows, Rapid City, for plaintiff and respondent.
Respondent, plaintiff below, agreed to sell to Mary Denker a 1949 Ford automobile on which appellant had issued a policy of insurance. Assignment of the insurance was not involved in the transaction. At the trial it was respondent's contention that the agreement to sell was conditional upon Miss Denker's approval of the car after driving it, while appellant contended that the negotiations that took place prior to delivery of the car to Miss Denker actually amounted to an absolute sale. Following the negotiations and on the same day they took place Miss Denker drove the automobile and wrecked it. After the accident respondent made a claim against appellant under the collision coverage of the policy. Appellant refused payment on the grounds that (1) respondent was not the owner of the car at the time of the accident and therefore had no insurable interest therein, and (2) suffered no loss because of payments made by Miss Denker. For the reasons hereafter appearing we hold that there is no loss under the policy insofar as this record discloses. Accordingly we reverse the trial court.
Most of the pertinent facts were stipulated. The stipulation provided for certain testimony of William Libertin, husband and agent of plaintiff. The only other testimony offered was that of Mary Denker taken by deposition.
Respondent acquired the automobile from a used car dealer on July 26, 1950 and the negotiations for the sale of the car to Miss Denker took place on August 17, 1950. On the latter date a certificate of title to the automobile had not been issued by the state of South Dakota to respondent, who had held the assigned certificate of a prior owner more than the ten days provided by SDC 44.0203 as amended without applying for a new certificate of title. Appellant contends that this failure to apply for a title in her own name within the statutory period technically prevents respondent from becoming the 'owner' of the car for the purposes of insuring it and therefore renders the policy invalid. This contention appears to us to be lacking in substance.
In the negotiations between Miss Denker and respondent, who dealt through her husband and agent, William Libertin, a price of $1525 was reached. Miss Denker examined the car at the Libertin home and found it satisfactory insofar as she could decide without driving it. She gave her check to respondent for $1325 on the price. She testified as follows: the car was then delivered to her by Mr. Libertin for a trial drive; if she decided after driving the car that it operated satisfactorily the transaction would be deemed a sale; if she found the car was not satisfactory she could return it and get back her $1325 check which was not to be cashed immediately nor until the car was found satisfactory; at the time the car was delivered to her under these circumstances the certificate of title issued in the former owner's name and held by respondent was handed to Miss Denker by Mr. Libertin under the agreement that she would take the certificate to the licensing division in the office of the Secretary of State in Pierre where Miss Denker taught school and request that a new certificate of title be issued in the name of respondent so that respondent would be in a position to assign the title to the car; the title was in no event to be assigned to Miss Denker until the full price of the car was paid; she had driven the car about 20 miles only when it was wrecked and at that time she had not driven it far enough to decide and had not decided that it operated satisfactorily; the wrecked automobile and the old certificate of title were returned to the Libertins; the $1325 check was cashed after the accident and the proceeds were retained by respondent agreeably to Miss Denker who also within the next week paid to respondent by check an additional $200; when it was wrecked she was driving the car to her home intending to drive back later and...
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