Libertin v. St. Paul Fire & Marine Ins. Co., 9395
| Decision Date | 09 March 1954 |
| Docket Number | No. 9395,9395 |
| Citation | 75 S.D. 238,63 N.W.2d 248 |
| Parties | LIBERTIN v. ST. PAUL FIRE & MARINE INS. CO. |
| Court | South Dakota Supreme Court |
Bellamy, Eastman & Christol, Rapid City, for the defendant and appellant.
H. F. Fellows, Rapid City, for plaintiff and respondent.
Following our decision in the case of Libertin v. St. Paul Fire & Marine Ins. Co., 74 S.D. 436, 54 N.W.2d 168, there was a retrial. The court again entered judgment for plaintiff and defendant has appealed.
It was stipulated that the record made before the trial court in the prior trial should be made a part of the present record. We refer to our prior opinion for facts established at the first trial. The only new testimony in the second trial was given by the former witness Mary Denker, the driver of the car at the time of the accident, who had married since the first trial and whose name is now Mrs. John Goodrich. Mrs. Goodrich testified that in the afternoon of the day of the accident she had a conversation with Mr. Libertin wherein it was agreed that her check of $1325 should be cashed by plaintiff, that Mrs. Goodrich would pay the balance of $200, and that plaintiff would have the car repaired, turn it over to her and transfer the title.
In our former opinion we held, in view of the trial court's holding that there was not a completed sale at the time of the accident which holding found support in the evidence, that it must be assumed, in the absence of testimony to the contrary, that the payment of the $1525 by Miss Denker to plaintiff, was paid as compensation for the damage to plaintiff's car. The purpose of the testimony received at the second trial was to rebut the assumption we indulged because of the absence of any evidence explaining the payment of the $1525 to plaintiff by Miss Denker.
Under the evidence presented at the second trial the trial court found, 1st, that at the time of the accident and damage to the car there was no completed sale between plaintiff and Mary Denker; 2nd, that the $1525 paid by Denker to plaintiff was not in compensation for damage to plaintiff's car but was paid under a new agreement between plaintiff and Mary Denker whereby plaintiff was to have the car repaired, deliver it to Mary Denker and transfer the title.
We have reviewed the testimony and as stated in the former opinion are unable to say 'that the record shows a clear preponderance of evidence against the finding of an incomplete sale', at the time of the...
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Hilde v. Flood
...favorable to the findings, except that which is so unreasonable as to challenge the credulity of the court. Libertin v. St. Paul Fire & Marine Ins. Co., 75 S.D. 238, 63 N.W.2d 248. Otherwise we would be usurping a function which of necessity is committed to the trial court. When he has foun......