Miller & Kizer v. Des Moines City Railway Co.

• Decision Date: 13 November 1923
• Docket Number: 35382
• Citation: 195 N.W. 600,196 Iowa 1033
• Parties: MILLER & KIZER, Appellee, v. DES MOINES CITY RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

195 N.W. 600

196 Iowa 1033

MILLER & KIZER, Appellee, v. DES MOINES CITY RAILWAY COMPANY, Appellant

No. 35382

Supreme Court of Iowa, Des Moines

November 13, 1923

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

ACTION to recover for damages caused by a collision between a motor bus and a street car. Verdict for plaintiff, and defendant appeals.

Affirmed.

W. H McHenry and Corwin R. Bennett, for appellant.

Walter F. Maley and Thurlow T. Taft, for appellee.

FAVILLE J. PRESTON, C. J., EVANS and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

Appellee is a copartnership. At the time of the transaction in question, appellee was engaged in operating a motor bus in the city of Des Moines. A collision occurred between said bus and a street car operated by appellant. This action is brought to recover for damages caused to the bus by such collision.

I. It is appellant's contention that appellee cannot recover in this action because of a claim that appellee was not the owner of the motor bus at the time the action was commenced or at the time of the trial.

Appellee purchased said motor bus under a conditional bill of sale. The purchase price was $ 2,500, and $ 150 was paid at the time of the purchase, and the balance was to be paid in monthly installments. The conditional sale contract, which was in writing, provided that, if default was made by the vendee in any of the agreements contained therein by the vendee, in that case the contract "shall be forfeited and ended without notice, at the election of the said party of the first part or agent, and said party of the first part may, without process of law, take possession of said property." The contract also provided:

"It is further expressly agreed that the title and ownership of all of said property is in and shall remain in said first party until all of said payments, interest costs and damages are fully paid."

The contract further provided:

"And the said party of the second part hereby covenants with the said party of the first part that * * * he * * * herewith received said property in good condition and that in case of a forfeiture of this contract * * * he * * * will deliver up the possession of said property to said first party in as good condition as when the same was received, ordinary wear and tear excepted."

It appears also that, at the time of the signing of the contract, the vendee signed some sixty or more notes representing the unpaid purchase price, and that these were delivered to the vendor. It appears that after the accident the motor car was taken by appellee to the place of business of the vendor of said car, where it was repaired at an expense of $ 22. This amount does not appear to have been paid. Some seven or eight days later, the appellee again took possession of the car, and used it about a week or ten days, when the car again met with an accident, on the Indianola road, some distance from the city of Des Moines, where, as we understand the record, it was left. It appears that one member of appellee partnership told the vendor of the car to go and get it, which the vendor did, and returned it to the vendor's place of business, where it was retained at the time of trial.

The vendor testified as follows:

"The bill for the repairs was $ 22. That covered all of the repairs. I took this automobile back, under my bill of sale. I have it now in storage at the fair ground. It is not in use at all. It is just in my possession in storage, holding it. I took it over the first time shortly after this accident with the street car. The next time, I took it back sometime along in the winter. I can't tell just exactly when. The accident on the Indianola road was during the winter. The fact of the matter is, I went there and got it and brought it back, and kept it ever since. One of my men went after it. Mr. Miller told me to go down and get it. He came over to the shop and told me to get a truck and go down and get the bus and tow it home. After that, he wanted the truck again; but I wouldn't let him have it, because he wouldn't pay for it."

He further said:

"I took it back because I wasn't getting my money. I didn't take it back until after they got it again, following this accident. * * * These notes were given for the purchase price of this bus. We have those notes. I can't say that I have ever released Mr. Miller and Kizer from liability on these notes, as long as I haven't given back the notes. I am still the owner of these notes. I wouldn't say as to whether or not I am willing to return them to Mr. Miller and Kizer at this time, and call the transaction closed. I want my money some way or other, especially for these repairs."

Upon this record, appellant moved the court for a directed verdict, on the ground that appellee was not the owner of the property that was injured, and had lost all equitable claim to the property, prior to the commencement of this suit.

In Donnelly v. Mitchell, 119 Iowa 432, 93 N.W. 369, we said:

"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."

See, also, Maxwell M. S. Corp. v. Bankers Mtg. & Sec. Co., 195 Iowa 384, and cases cited therein.

The contract in this case constituted a conditional sale, where there was a delivery of possession to the vendee, with the intention of passing immediate ownership, subject only to the reservation of the title in the seller as security for the purchase money which was to be paid, and which was evidenced by the promissory notes of the vendee, executed and delivered to the vendor. At the time of the accident, this status was retained, and at said time a right of action immediately accrued to the appellee for the injury incurred, assuming that there was liability on the part of appellant for such injury. It is the contention of appellant that appellee lost the right to recover for these injuries before the commencement of this action, and that at said time appellee was not the real party in interest.

The allegations of the petition are that appellee is the owner of the motor bus. A general denial was pleaded. Appellant contends that the vendor exercised his right to regain the property under the conditional sale, prior to the commencement of this suit, and thereby reinvested himself with the title to and ownership of the property, and...