Nationwide Mut. Ins. Co. v. Motorists Mut. Ins. Co.
| Decision Date | 30 November 1961 |
| Citation | 21 O.O.2d 225,186 N.E.2d 208,116 Ohio App. 22 |
| Parties | , 21 O.O.2d 225 NATIONWIDE MUTUAL INSURANCE CO., Appellee, v. MOTORISTS MUTUAL INSURANCE CO., Appellant, et al. |
| Court | Ohio Court of Appeals |
McCulloch, Felger & Fite, Pique, for appellant.
Marchal & Marchal, Greenville, for appellee.
This is an appeal on questions of law from a declaratory judgment entered in the Common Pleas Court in an action between two insurance companies. In the judgment appealed from, the court determined that defendant, Motorists Mutual Insurance Company, appellant herein, is liable and that plaintiff, Nationwide Mutual Insurance Company, appellee herein, is not liable for such damages as may be recovered in an action pending against one Lova Mae Fellers.
The essential facts have been stipulated. Although Lova Mae Fellers was joined as a party defendant, she has not joined in the stipulations. However, the conclusions which we have reached will in no wise prejudice any of her rights.
On the 24th day of August 1959, there were in full force and effect a garage liability insurance policy issued by Nationwide to William J. McGraw, doing business as McGraw Chevrolet Company, and also a policy of liability and property damage insurance issued by Motorists Mutual to Robert Fellers on a 1953 Chevrolet automobile.
On the 19th day of August 1959, McGraw was the owner of a 1957 Mercury sedan to which he held the certificate of title. On that date, McGraw and Fellers agreed to trade automobiles. Fellers, as full consideration on his part, signed the assignment of certificate of title to the 1953 Chevrolet to McGraw and paid the sum of $1,250. The same day, Fellers signed the application for a certificate of title for the Mercury and took possession of it. The license plates from the Chevrolet were changed to the Mercury.
On the same day, August 19, 1959, McGraw signed the assignment of certificate of title to the Mercury to Fellers and the certificates of title were notarized. The certificates of title were left with McGraw to be filed with the clerk of courts of the proper county (Miami).
At about 10 o'clock a. m. on August 24, 1959, Lova Mae Fellers, wife of Robert Fellers, while driving the Mercury, was involved in an accident. She was not on any mission for McGraw, and neither she nor her husband, Robert Fellers, were agents, servants or employees of McGraw.
Lova Mae Fellers filed a lawsuit against one Marcella Fourman who, in turn, filed an answer and cross-petition against Lova Mae Fellers, claiming damages of $75,000.
After McGraw learned of the accident he had the application for title to the Mercury taken to the clerk of courts in the afternoon of August 24, whereupon the clerk issued a certificate of title for the Mercury to Robert Fellers.
On the 25th day of August 1959, Robert Fellers reported the accident to Motorists Mutual, which made an investigation of the accident. Motorists Mutual determined, on October 7, 1959, that the certificate of title to the Mercury had not been issued until the afternoon of August 24. On October 7, it notified Nationwide of the facts surrounding the accident. This was the first notice of the accident which Nationwide had received.
The cause has been briefed and argued before this court largely upon the question of whether, at the time of the accident, McGraw was the owner of the Mercury so as to make his policy with Nationwide applicable. Nationwide argues that actual ownership and possession had passed to Fellers and that only the formality of issuing the certificate of title to Fellers remained to be done. Motorists Mutual, on the other hand, contends that until the certificate of title is issued, McGraw and not Fellers is the owner.
Both the trial judge and Nationwide rely heavily upon the cases of Workman v. Republic Mutual Ins. Co., 144 Ohio St. 37, 56 N.E.2d 190, and Auto Owners Ins. Co. v. Olney, Ohio Com.Pl., 172 N.E.2d 741 and attempt to distinguish other cases upon their particular facts.
The fourth paragraph of the syllabus in the Workman case reads:
'A provision in the 'garage liability' endorsement affixed to an automobile liability policy, that 'the policy shall cover the operation of any automobile or trailer owned by or in charge of the named insured for purposes necessary to the conduct of the named insured's business classified as automobile sales agency or garage * * *,' does not insure against liability for injuries resulting from an accident which occurred after such automobile, with complete possession and control, has been delivered to the purchaser thereof, although a certificate of title thereto had not been issued to the purchaser at the time of such accident.'
In the Olney case, the Common Pleas Court relied upon and followed the Workman case, and observed that the contrary view, now contended for by Motorists Mutual, was not intended by the insurer.
In our present case the trial judge, having also chosen to follow the Workman case, expressed the view that subsequent decisions of the Supreme Court had given rise to some confusion. We sympathize with this view, but are bound to follow the later decisions of the Supreme Court which, in our opinion, observe the following requirements of Section 4505.04, Revised Code:
'No person acquiring a motor vehicle from the owner thereof, whether such owner is a manufacturer, importer, dealer, or otherwise, shall acquire any right, title, claim, or interest in or to said motor vehicle until such person has had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer's or importer's certificate for it; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title, or manufacturer's or importer's certificate for said motor vehicle, for a valuable consideration.
'No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced:
'(A) By a certificate of title or a manufacturer's or importer's certificate issued in accordance with sections 4505.01 to 4505.19, inclusive, of the Revised Code.
'(B) By admission in the pleadings or stipulation of the parties.'
The Supreme Court, in its decisions subsequent to the Workman case, has clearly accepted and applied these statutory provisions. In Mielke v. Leeberson, 150 Ohio St. 528, 83 N.E.2d 209, 7 A.L.R.2d 1342, the syllabus reads:
'Under the plain and unambiguous language of Section 6290-4, General Code [Section 4505.04, Revised Code], a court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle, without the production of a certificate of title or manufacturer's or importer's certificate duly issued in accordance with the Certificate of Title Law, and any other evidence of ownership is not of sufficient weight to sustain a verdict or judgment where title must be proved as a condition precedent for the validity of such verdict or judgment.'
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