Saffran v. Rhode Island Ins. Co. of Providence, R. I.

• Decision Date: 29 April 1940
• Docket Number: No. 19592.,19592.
• Parties: SAFFRAN v. RHODE ISLAND INS. CO. OF PROVIDENCE, R. I.
• Court: Missouri Court of Appeals

141 S.W.2d 98

SAFFRAN v. RHODE ISLAND INS. CO. OF PROVIDENCE, R. I.

No. 19592.

Kansas City Court of Appeals. Missouri.

April 29, 1940.

Rehearing Denied June 10, 1940.

Appeal from Circuit Court, Worth County; Ellis Beavers, Judge.

Action by Irwin Saffran against the Rhode Island Insurance Company of Providence, Rhode Island, to recover on an automobile fire policy. From a judgment for plaintiff, defendant appeals.

Affirmed.

Meyer & Smith, of Kansas City, for appellant.

DuBois & Miller, of Grant City, and C. W. Crossan, of Kansas City, for respondent.

CAMPBELL, Commissioner.

The defendant issued to plaintiff a policy of insurance insuring plaintiff's Packard automobile in the amount of $750 against loss by fire, theft and other causes for a period of one year from September 8, 1937. The automobile was stolen and then destroyed by fire on January 2, 1938. Following denial of liability this suit was brought and resulted in a verdict and judgment for plaintiff for $750 damages, $60 interest, $75 for vexatious delay, and $275 attorney's fee. The defendant has appealed.

The defendant's first point is the court erred in refusing its request for directed verdict for the reason plaintiff, in violation of the provisions of the policy, executed to his mother, Sadie Saffran, a chattel mortgage covering the automobile. The policy provided the defendant would not be liable for loss which occurred while the insured property was subject to any lien mortgage or other encumbrance. The uncontradicted evidence shows plaintiff wrote, signed and filed a chattel mortgage on the automobile to his mother; that there was no consideration for the mortgage; that plaintiff was not indebted to his mother in any amount, did not deliver the mortgage nor execute a note to her; and that she did not know the mortgage had been given. Under such circumstances the chattel mortgage was not a lien or encumbrance on the automobile for the reason there was no delivery of the instrument, and no debt existed which could have been enforced against the automobile. Taylor v. Connecticut Fire Ins. Co., Mo.App., 285 S.W. 1012; Bennington v. Insurance Company of North America, Mo.App., 281 S.W. 132; Third National Bank v. Yorkshire Ins. Co., 218 Mo.App. 660, 267 S.W. 445; Bridgewater v. General Exchange Ins. Corp., Mo. App., 131 S.W.2d 220; Meredith v. Brock, 322 Mo. 869, 17 S.W.2d 345.

The defendant, however, says plaintiff was estopped to deny the mortgage was a valid one. In each of the cases relied upon by defendant, in support of this contention, the mortgage and evidence of the debt described therein were delivered. No court, so far as we are advised, has held that an undelivered mortgage is enforcible. None of the essential elements of estoppel were present. The making of the mortgage did not cause defendant to change its position or injure it in any manner whatsoever. Absent injury to the defendant there was no estoppel. Blodgett v. Perry, 97 Mo. 263, 10 S.W. 891, 10 Am.St.Rep. 307; Hamilton v. Northeast Mutual Ins. Ass'n, Mo.App., 116 S.W.2d 159; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223.

The defendant insists plaintiff never owned the Packard automobile. The evidence shows that the Packard had been in a wreck; that plaintiff, in October, 1936, gave Jack Glazer, doing business under the trade name United Auto Wrecking Company, $150 and used cars for the Packard, and Glazer delivered it by truck at plaintiff's place of business; that on the next day Harry Smith, plaintiff's partner, at the instance of plaintiff, obtained from Reid-Ward Motor Company a document which was introduced in evidence by plaintiff without objection. The document was a certificate of title of a motor vehicle issued by the Secretary of State and recited that T. L. Cockrell was the owner of the automobile here involved on July 2, 1934. The document further recited that Cockrell sold and assigned the certificate to Reid-Ward Motor Company; that the latter company sold and assigned said certificate to plaintiff. The assignments were made in the printed forms on the certificate.

It is plain, absent proof other than the document, plaintiff was the owner of the Packard.

The defendant, however, contends the certificate and the assignments thereof were not delivered to plaintiff at the time the Packard was delivered at his place of business; that the certificate was delivered after plaintiff had paid the purchase price of the Packard.

In the case of State ex rel. v. Cox et al., 306 Mo. 537, 268 S.W. 87, 37 A.L.R. 1456, the court held the sale of a motor vehicle was not effective unless the provisions of the statute, now section 7774, R.S.1929, Mo. St.Ann. § 7774, p. 5193, were complied with. That section provides, among other things, that the certificate of title, duly assigned, shall be delivered to the purchaser "at the time" the motor vehicle is delivered. The phrase "at the time" has not been, so far as we are advised, construed by any court in this jurisdiction.

In the case of Isaacson v. Van Gundy, Mo.App., 48 S.W.2d 208, 212, the sale of the motor vehicle involved in the action was completed nine days before the certificate of title was delivered.

In ruling that the certificate of title was not delivered "at the time", the court said: "Just what time, if any, can elapse between the moment of the delivery of a motor vehicle until the certificate of title is delivered, where there is some apparent excuse for the failure to deliver the certificate at once, we need not say, for the reason that there was evidence that the sale was fully completed, except as to the delivery of the certificate of title, many days before the certificate was delivered."

It has been ruled the phrase "at any time" does not mean eo instanti, "but the act ought to be done in a convenient time, considering the surrounding circumstances affording evidence of reasonable excuse for delay." United States v. Buchanan, D. C., 9 F. 689, 691; Hunter v. Wetsell, 84 N.Y. 549, 38 Am.Rep. 544.

The words "at the time" refer to the whole transaction or series of circumstances. Lake Shore & M. S. Ry. Co. v. Johnson, 135 Ill. 641, 26 N.E. 510. Other cases are to the same effect: Alexander v. State Compensation Com'r, 113 W.Va. 223, 167 S.E. 589; Gregory v. Standard Oil Company of Louisiana, 151 La. 228, 91 So. 717; Brown v. Smith et al., 13 N.D. 580, 102 N.W. 171.

In the case of Kusnetzky v. Security Ins. Co., 313 Mo. 143, 281 S.W. 47, 51, 45 A.L.R. 189, the court, in speaking of the State ex rel. v. Cox case, said: "The plaintiff in the Cox Case might in equity have enforced a legal and formal transfer of the automobile. The opinion does not say that he had no claim on it, but his claim had not ripened into a title by conforming to the requirements of the law which was intended to protect purchasers against thefts."

In the present case Glazer did not have the certificate. Plaintiff, however, told his partner to obtain the certificate from Reid-Ward Motor Company, the lawful holder thereof. The certificate was obtained and delivered to plaintiff as above stated. From the fact plaintiff told his partner to get the certificate from the holder thereof, the jury could find plaintiff knew of the whereabouts and ownership of the certificate and that he could obtain it in the manner he did. After plaintiff received the certificate of title he repaired the Packard at an expense of about $450, possessed it for a period of more than 10 months prior to the issuance of the policy.

On these facts, we conclude the request for directed verdict was well ruled.

Defendant's second point reads: "The court erred in refusing to admit into evidence the chattel mortgage, defendant's Exhibit D." The assignment is too general for consideration.

Defendant contends plaintiff's instruction No. 1 was erroneous for the reason it permitted the jury to assess damages to the automobile when there was no evidence of probative value showing the actual cash value of the automobile at the time of loss.

Harry Smith, an experienced automobile dealer, testified the Packard was of the value of $400 at the time it was delivered to plaintiff; that plaintiff thereafter repaired the car at an expense of over $400; that he thereafter saw the car "regularly" until January 2, 1938, at which time it was of the reasonable market value of $1,000. Plainly, there was substantial evidence showing the reasonable market value of the car at the time of loss.

Complaint is made of that part of plaintiff's instruction No. 2 which submitted whether there was an arrangement between Glazer and Reid-Ward Motor Company for the latter to reassign the certificate to plaintiff, for the reason there was no evidence supporting such issue. Reid-Ward Motor Company assigned and delivered the certificate to plaintiff as above stated. It is reasonable to infer the assignment and...