Robertson Gar. v. Central Manu. Mut. Ins. Co., 6707.
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | Vandeventer |
| Citation | 207 S.W.2d 59 |
| Parties | JOHN ROBERTSON, AN INDIVIDUAL, DOING BUSINESS AS ROBERTSON GARAGE, APPELLANT, v. THE CENTRAL MANUFACTURERS' MUTUAL INSURANCE COMPANY, A CORPORATION, RESPONDENT. |
| Docket Number | No. 6707.,6707. |
| Decision Date | 11 December 1947 |
v.
THE CENTRAL MANUFACTURERS' MUTUAL INSURANCE COMPANY, A CORPORATION, RESPONDENT.
Appeal from the Circuit Court of Butler County. — Hon. Randolph H. Weber, Judge.
REVERSED WITH DIRECTIONS.
[207 S.W.2d 60]
Byron Kearby, Rms. 201-02 Barron Bldg., Popular Bluff, Missouri, attorney for appellant.
The only question presented in this case is whether or not the sale of the automobiles was completed in Popular Bluff, Missouri. The plaintiff testified positively that he was to deliver the automobiles to the purchaser in Lufkin, Texas, that he attached the certificates of title to the draft and deposited same in the State Bank of Popular Bluff, the titles to be delivered to purchaser on payment of draft when cars were delivered to Lufkin, Texas. "No titles passes to buyer unless certificate of title is assigned and delivered to him at the time the motor vehicle is delivered." Anderson v. Arnold-Strong Motor Co., 88 S.W. (2d) 419, 229 Mo. App. 1170, Mo. R.S.A., Sec. 8382 (c). "The words `at the time,' within this section providing that certificate of title duly assigned shall be delivered to purchaser at the time motor vehicle is delivered, refer to the whole transaction or series of circumstances." Saffran v. Rhode Island Ins. Co. of Providence, R.I., Aoo., 141 S.W. (2d) 98. "The title to an automobile cannot be held in trust for another." Hoshaw v. Fenton, 110 S.W. (2d) 1140, 232 Mo. App. 137. "Where certificates of title were not assigned and delivered to buyer of motor tractors when tractors were delivered, the transaction was void and the fact that certificates were assigned and acknowledged at time of transfer was immaterial." Mo. R.S.A., Sec. 8382; Riss & Co. v. Wallace, 195 S.W. (2d) 881. The plaintiff retained title in the property until same was delivered to the purchaser at Lufkin, Texas, as the purchase price was not paid nor the titles delivered at the time. "Whether a sale is executory or an executed sale depends upon whether the property in the goods is transferred, and, if transferred, there is a `sale' though the price be not paid, and, if not transferred, it is a `contract of sale,' even though the price be paid." Link v. Kallaos, 56 F. Supp. 304. "Where a contract provides goods are to be paid for before delivery, title does not pass until payment is made." Joseph Greenspon's Sons Iron & Steel Co. v. Gerstein 27 S.W. (2d) 487, 224 Mo. App. 330. "In absence of agreement that check given to seller was received as absolute payment for mules purchased of him, title to mules did not pass until check was paid." Youel v. Bank of Atchison County, 117 S.W. (2d) 376, 233 Mo. App. 1. "On a sale of personal property for cash on delivery, title does not pass until payment is made." Ozark Acceptance Corporation v. Yellow Truck & Coach Mfg. Co., 137 S.W. (2d) 965. The plaintiff was, at the time the cars were damaged, the unconditional owner and had an insurable interest, therefore, was fully covered by the contract of insurance issued by defendant to plaintiff. See authorities above. The plaintiff made a prima facie case and the defendant offered no proof in defense of plaintiff's cause of action. The defense used four witnesses: Carl Brickell identified plaintiff's bank account; Leonard Ehlers, Court Reporter, identified plaintiff's deposition; Margaret Harwell testified that the fifty cents additional charge was for public liability insurance; and Art Harwell testified that the plaintiff told him after the collision that he was to receive $50.00 each for delivering the cars to Lufkin, Texas. There was not one word of testimony from any of the above witnesses that disputed or was defensive to plaintiff's claim, therefore, plaintiff is entitled to recover from the defendant interest and penalties and a reasonable attorney's fee for the prosecution of this action in the lower court and in this court. Mo. R.S.A., Sec. 6040.
M.W. Henson, Duncan Building, Popular Bluff, Missouri, attorney for respondent.
The automobile which was being towed behind the driven automobile involved in the collision, even if it had have been owned by the appellant at the time of the collision, was excluded from coverage under the provisions of sub-division (c) of Paragraph 2 of the Policy of Insurance, entitled "Exclusion." Transcript of Record and Bill of Exceptions, page 75. Even if appellant's contention that he sold the automobiles to be delivered at Lufkin, Texas, is true, he is precluded from recovering because of the exclusion of automobile sold under a conditional sale contract. Transcript of Record and Bill of Exceptions, page 74, Sec. 1, entitled "Coverage." There is no coverage afforded by the policy in suit except on automobiles owned by insured (appellant here) and held for sale or used in repair service, or as demonstrators. Transcript of Record and Bill of Exceptions, page 74, Sec. 1, entitled "Coverage." The Trial Court had an opportunity to observe the witnesses and to determine the weight and value to be given their testimony, and his finding and judgment will not be disturbed by the Appellate Court if it is supported by competent evidence. White v. Foster, 194 S.W., 2nd Series, 723; Gregory v. Chambers, 78 Mo. 294; Love v. Central Life Insurance Co., 92 Mo. App. 192.
VANDEVENTER, J.
This is a suit on an automobile insurance policy. Briefly, plaintiff alleges in his petition that defendant issued the policy on two automobiles, a 1941 DeSoto and a 1941 Chrysler for actual cash value, less $50.00, which amount was deductible from the loss occasioned by each collision or upset. That the reasonable value of the two automobiles was $2300.00 and that on the ____ day of January, 1946, while the policy was in force, the said automobiles were damaged by a collision near Lufkin, Texas, in the amount of $1300.00, for which demand had been made and payment refused. It was further alleged that through defendant's willful, wrongful and vexatious refusal to pay, it had become liable to plaintiff for a further sum of $500.00 as a reasonable attorney's fee and $120.00 damages for the vexations delay in refusing to pay the amount of the loss. Defendant's answer admitted that the plaintiff was doing business under the name of Robertson Garage at a certain location in Butler County, Missouri and also admitted that the defendant was a corporation as alleged in the petition. It denied generally each and every other allegation in the petition.
In Paragraph 3 of the answer,...
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