Peterson v. Universal Automomobile Ins. Company

• Decision Date: 05 April 1933
• Docket Number: 5910
• Citation: Peterson v. Universal Automomobile Ins. Company, 20 P.2d 1016, 53 Idaho 11 (Idaho 1933)
• Parties: D. N. PETERSON, Appellant, v. UNIVERSAL AUTOMOMOBILE INSURANCE COMPANY, Respondent
• Court: Idaho Supreme Court

20 P.2d 1016

53 Idaho 11

D. N. PETERSON, Appellant, v. UNIVERSAL AUTOMOMOBILE INSURANCE COMPANY, Respondent

No. 5910

Supreme Court of Idaho

April 5, 1933

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action by D. N. Peterson against the Universal Automobile Insurance Company to recover on a policy of liability insurance. From a judgment of nonsuit, plaintiff appeals.

Action to recover on a policy of liability insurance. Plaintiff appeals from a judgment of nonsuit. Affirmed.

Judgment affirmed, with costs to respondent.

Geo Donart, J. W. Galloway, Carl A. Burke and E. B. Smith, for Appellant.

A conveyance that is incomplete at the time of the loss does not violate the conditions of a policy against change of title or interest. (26 C. J. 231, 232, sec. 282; Pomeroy v. Aetna Ins. Co., 86 Kan. 214, 120 P. 344, Ann. Cas 1913C, 170, 38 L. R. A., N. S., 142; Pioneer Sav. & Loan Co. v. Providence, etc., 17 Wash. 175, 49 P. 231, 38 L R. A. 397; Fuller v. United States Fire & Marine Ins. Co., 117 Kan. 282, 231 P. 53.)

Whether or not title to personal property passes under a contract of sale depends on the intention of the parties as shown by all the facts and circumstances of the case, so that the question is ordinarily one of fact for the jury. (South San Francisco Packing & Provision Co. v. Jacobsen, 183 Cal. 131, 190 P. 628; 55 C. J. 529; Nye & Nisson v. Weed Lbr. Co., 92 Cal.App. 598, 268 P. 659; Levinson v. Silverman, 89 Cal.App. 416, 264 P. 796.)

Martin & Martin, for Respondent.

When the vendor sells property upon a conditional sales contract and delivers the property to the purchaser, he parts with a substantial interest in the property, including the equitable title, and the purchaser acquires a substantial right in the property, including the equitable title and the right of possession. (Neitzel v. Beam, 42 Idaho 411, 245 P. 936; Coffin v. Northwestern Mut. Fire Assn., 43 Idaho 1, 249 P. 89, 48 A. L. R. 1225; Barton v. Groseclose, 11 Idaho 227, 81 P. 623.)

Where an insurance policy has been issued containing a provision that any change in the interest of the assured either in the policy or the automobile insured will render the policy void, a conditional sale contract amounts to a change of interest, and renders the policy void. (Coffin v. Northwestern Mut. Fire Assn., supra; 2 Berry on Automobiles, 6th ed., sec. 2164, p. 1743; London Assur. Corp. v. Dean, (Tex. Civ. App.) 281 S.W. 624.)

WERNETTE, J. Givens and Holden, JJ., and Sutphen, D. J., concur. Rice, D. J., dissents.

OPINION

WERNETTE, J.

The facts in this case are substantially these: William P. Gilderoy, doing business as the Gilderoy Motor Company, on May 23, 1930, and for a long period prior thereto, was conducting a Chrysler automobile sales agency at Weiser, Idaho. From February 8, 1930, to May 23, 1930, he was the owner of the certain Chrysler automobile in question. On February 8, 1930, Gilderoy took out a policy of insurance, covering the automobile, with the respondent, Universal Automobile Insurance Company, insuring him against public liability while the automobile was being used, only, for private pleasure. This policy, covering a period of one year, was in full force and effect on May 23, 1930. The policy, among other things, contained the following provision:

"Statement 7. The above described automobile is and will be used only for Private Pleasure."

The policy also contained the usual coverage clause as follows:

"Extended Coverage. In addition to the Assured named in this policy, such insurance as is granted under Item 1 and/or Item 2 shall be available, in the same manner and under the same conditions and to the same extent as it is available to the Assured named herein, to any person or persons, except chauffeurs and domestic servants, while riding in or legally operating the automobile covered by this policy, and to any person, firm or corporation legally responsible for the operation thereof; but only while it is being used for the purposes specified in Statement 7 of the 'Schedule of Statements' and with the consent of the Assured named herein; or, if such Assured is an individual, of an adult member of his household who is not a chauffeur or domestic servant."

There was also contained in the policy the following provision:

"Conditions, Limitations and Agreements. Change of Ownership. A. All rights hereunder are strictly personal to the Assured named in this policy, and this policy shall terminate immediately if there is any change, voluntarily or otherwise, in the ownership or interest of such Assured in this policy or in the automobile insured hereunder; provided that if such change in interest be by reason of the death of the named Assured (if the Assured is an individual), this insurance shall continue in force for the benefit of his legal representatives until noon, Standard Time, of the day following the date of the death of the Assured, and for twenty-nine (29) days thereafter, unless the original term of the policy sooner expires or the policy be cancelled."

Until May 23, 1930, William P. Gilderoy and his wife, were using the automobile for pleasure purposes, only.

On May 23, 1930, appellant, D. N. Peterson, entered into negotiations with Mr. Gilderoy to purchase the automobile in question. Terms were agreed upon and a written conditional sales contract, or title note, was entered into between the appellant and the Gilderoy Motor Company, dated as of May 23, 1930. The conditional sales contract, or title note, stated, among other things, that the purchaser, who was the appellant, had on said date paid to the Gilderoy Motor Company, the seller, $ 490, which was to apply on the purchase price, and the purchaser further agreed to pay to the seller, or order, 18 installments of $ 64.45 on the tenth day of each succeeding month, beginning July 10, 1930. The contract further contained the usual conditional sales contract provisions.

The appellant at the time and place of execution of the written contract, and as part of the transaction, delivered to Mr. Gilderoy his personal check in the sum of $ 100. It was understood between the parties that the check was not to be presented for payment, at the bank on which it was drawn, until the following Monday, May 26, 1930.

It was contemplated by Gilderoy to finance the conditional sales contract, or note, with the Commercial Credit Company of Boise, Idaho, which company had handled and financed practically all of Gilderoy's automobile contracts. On May 23, 1930, Gilderoy signed a guaranteed indorsement on the said conditional sales contract, and on the same day sent the indorsed contract, by mail, to the Commercial Credit Company. On the 24th of May, the Commercial Credit Company issued its check, in the sum of $ 980, in favor of the Gilderoy Motor Company, which check was mailed to Gilderoy but was not received by him until either the 25th or 26th of May, 1930. The record does not disclose when, on the 24th of May, the said check was issued, or when it was placed in the mail.

As soon as the appellant had signed the conditional sales contract, he was permitted to take possession of the automobile, and he drove in and about the city of Weiser on the afternoon of May 23d, and parked the automobile at his house the night of May 23d. In the morning of the following day, May 24th, he started to drive to the city of Boise, at which time, when near the town of Meridian, in Ada county, he collided with another car, operated and driven by one Frank Collard, seriously injuring Frank Collard and one Irving R. Collard, who was riding in the car with Frank Collard. The automobile driven by the appellant was also substantially damaged.

It appears from the oral testimony that in the event that the $ 100 check, delivered by appellant to Gilderoy, would not be honored on Monday, the day it was to be presented to the bank on which it was drawn, or in the event that the Commercial Credit Company refused to finance or purchase the conditional sales contract, that the appellant was to return the automobile to Gilderoy on Monday, following the 23d of May. The $ 100 check was paid, but on what date it is not disclosed. The conditional sales contract was accepted and purchased by the Commercial Credit Company, as heretofore stated.

The appellant did not return the automobile to Gilderoy, but continued in the possession of it from May 23, 1930, when it was first delivered to him, until a very short time before the trial of this action in the district court, when he surrendered possession to Gilderoy because of default in making payments as provided for in the conditional sales contract.

Immediately after the appellant took possession of the automobile, and prior to the collision above mentioned, the appellant obtained insurance to protect him as to any damage resulting to the automobile, due to collision. The company from whom he obtained the insurance settled with him, and paid him for the damage to his automobile resulting from said collision.

On, or about, August 8, 1930, Frank Collard, who was injured as the result of the collision on May 24th, commenced an action in the district court of Washington county against the appellant, and eventually obtained judgment in the total sum of $ 801.40, which included the costs of the action. Irving R. Collard, likewise commenced action for damages he sustained, on account of injuries in said collision. This action brought by Irving R. Collard resulted in a judgment against the appellant, which together with costs, amounted to $ 1,101.40.

Shortly after the collision the respondent was notified thereof, and of the fact that Frank Collard, and Irving R. Collard, had...