Robertson v. Central Manufacturers' Mut. Ins. Co.

• Decision Date: 11 December 1947
• Citation: 207 S.W.2d 59,239 Mo.App. 1169
• Parties: John Robertson, an Individual, Doing Business as Robertson Garage, Appellant, v. The Central Manufacturers' Mutual Insurance Company, a Corporation, Respondent
• Court: Missouri Court of Appeals

207 S.W.2d 59

239 Mo.App. 1169

John Robertson, an Individual, Doing Business as Robertson Garage, Appellant, v. The Central Manufacturers' Mutual Insurance Company, a Corporation, Respondent

Court of Appeals of Missouri, Springfield District

December 11, 1947

Appeal from the Circuit Court of Butler County; Hon. Randolph H Weber, Judge.

Reversed with Directions.

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. Fulbright, P. J., not sitting. Blair, J., concurs.

OPINION

VANDEVENTER

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, plaintiff specifically denied that the automobiles were damaged by collision near Lufkin, Texas or at any other place on the day of January, 1946.

". . . but defendant states that said Chrysler automobile and said DeSoto automobile mentioned in plaintiff's petition were sold by plaintiff to one John O'Banion of Lufkin, Texas on the 7th day of February, 1946 and that thereafter the plaintiff herein had no right, title or interest in said automobiles, or either of them, and that the collision which occurred near Lufkin, Texas in which said Chrysler automobile and said DeSoto automobile were damaged as described in plaintiff's petition occurred subsequent to the sale of said automobiles by the plaintiff to the said John O'Banion."

It further denied that the policy of insurance mentioned in plaintiff's petition was in force as to said automobiles on the date of the collision. Plaintiff's reply was a general denial to the answer.

The evidence, material here, showed that plaintiff was engaged in selling automobiles at Popular Bluff, that defendant had issued an insurance policy covering the two automobiles in question, insuring plaintiff against any loss by collision above $ 50.00 for each collision. We are not deciding that $ 50.00 is deductible for each car involved in the collision, but the parties seem to agree on that amount. On the 7th day of February, 1946, one John O'Banion of Lufkin, Texas came to Popular Bluff and agreed to buy from plaintiff six automobiles. O'Banion took two of the automobiles back to Lufkin with him but plaintiff agreed to deliver the other four. O'Banion gave plaintiff a draft on a Lufkin, Texas bank for $ 6,550.00 and a check for $ 1,350.00 which total amount was the purchase price of the six automobiles. This draft was, on the 7th day of February, deposited in plaintiff's account in the State Bank of Popular Bluff and attached to it were the six Certificates of Title to the six automobiles, duly assigned by plaintiff to John O'Banion of Lufkin, Texas. The record is not clear as to whether the check for $ 1350.00 was deposited or cashed but it, with the draft, was transmitted by the State Bank of Popular Bluff to its correspondent in St. Louis on the same day the draft was deposited and was about twelve days later, returned marked "insufficient funds." It was then sent by mail by the Popular Bluff bank to the Lufkin, Texas bank and was returned the second time marked "payment stopped." The bank records show that the draft for $ 6550.00 was never returned to the Popular Bluff bank and the entire credit given on the 7th of February remained in plaintiff's account.

The record is not clear as to when the automobile started to Lufkin, Texas but it was either on the early morning of the 7th or early morning of the 8th. In any event, the day after the two automobiles left Popular Bluff,...