Schultz v. Murphy, 41158

Decision Date29 January 1980
Docket NumberNo. 41158,41158
PartiesThomas SCHULTZ, by and through his next friend, Mary Schultz, Mary Schultz, and John Schultz, Jr., Plaintiffs, v. Harold MURPHY, Defendant-Respondent, and British Leyland Motors, Inc., Defendant, and Charles Schmitt Rolls-Royce, Defendant-Appellant.
CourtMissouri Court of Appeals

Theodore F. Schwartz, Clayton, John M. Goodwin, William W. Evans, St. Louis, for defendant-appellant.

Robert F. Ritter, St. Louis, Murray A. Marks, Clayton, for defendant-respondent.

DOWD, Judge.

This appeal is from the trial court's summary judgment upon a cross-claim, designated as final and appealable pursuant to Rule 81.06.

Appellant and respondent are co-defendants in a negligence action brought by the Schultzes arising from an automobile accident on April 24, 1976. Respondent was the driver of a vehicle which the Schultzes claim collided with the rear of a vehicle driven by their decedent, John Schultz. Appellant is the automobile dealer which allegedly sold John Schultz the vehicle driven at the time of the accident.

On April 24, 1976, John Schultz tendered to appellant a personal check drawn upon his wife's account and signed by his wife in the amount of the purchase price of a used Jaguar XKE. Appellant gave John Schultz a bill of sale, inspection certificate, an assigned and notarized title certificate together with title application, and possession of the vehicle. After the accident on April 24, 1976, John Schultz's wife stopped payment upon her check for the vehicle.

Appellant has counter-claimed against the Schultzes to recover the purchase price of the vehicle driven by their decedent. Additionally, appellant cross-claimed against respondent for damages to the vehicle driven by John Schultz at the time of the accident. The trial court granted respondent a summary judgment upon the latter claim.

This appeal raises the question whether appellant had title to the vehicle driven by John Schultz at the time of the accident so as to permit appellant's claim for damages to the vehicle. We hold appellant did not have title to the vehicle at the time of the accident.

Appellant's argument lies principally upon Hickerson v. Con Frasier Buick Co., 264 S.W.2d 29 (Mo.App.1953). In that case, the administratrix of an estate sued an automobile dealer for converting and taking possession of an automobile allegedly owned by the decedent. The decedent took possession of the new vehicle after tendering his personal checks. The dealer gave decedent a bill of sale and title application. Decedent died the following day, before the dealer deposited the checks. The dealer took possession of the vehicle. Later, payment upon the decedent's checks was refused. However, a title certificate was subsequently issued in decedent's name upon the application mailed before his death. The court held the sale of the vehicle had not been completed because evidence by the administratrix that the state issued a title certificate in decedent's name did not constitute the necessary clear and cogent evidence to upset the presumption the creditor accepted the check as conditional rather than absolute payment. Hickerson v. Con Frazier Buick Co., supra at 33-34 (5-8).

The above-cited case, however, is...

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5 cases
  • Jones v. Director of Revenue
    • United States
    • United States State Supreme Court of Missouri
    • June 2, 1992
    ...did not occur until after the issuance of certificates of title by the Director of Revenue, Mr. Jones relies upon Schultz v. Murphy, et al., 596 S.W.2d 51 (Mo.App.1980), and Hickerson v. Con Frazier Buick Co., 264 S.W.2d 29 (Mo.App.1953). Neither case is applicable. Schultz stands for the p......
  • Naert v. Geico Cas. Ins. Co.
    • United States
    • U.S. District Court — Eastern District of Missouri
    • May 5, 2020
    ...may become the owner of a [used] motor vehicle although he has not yet become registered as the owner." Id.; accord Schultz v. Murphy, 596 S.W.2d 51, 53 (Mo. App. E.D. 1980). As Allstate points out, this rule derives from Chapter 301's precise definition of "owner," which is predicated on t......
  • Atlanta Cas. Co. v. Stephens, s. WD
    • United States
    • Court of Appeal of Missouri (US)
    • February 11, 1992
    ...because ownership of a used vehicle is acquired at the time the certificate of title is assigned to the new owner. Schultz v. Murphy, 596 S.W.2d 51, 53 (Mo.App.1980). Title to the pickup was assigned on December 22, 1987, prior to the policy Subsection (2)(c) does not provide coverage becau......
  • Jackson v. Charlie's Chevrolet, Inc., 46491
    • United States
    • Court of Appeal of Missouri (US)
    • January 31, 1984
    ...of ownership properly assigned is void. Section 301.210(4). Without such delivery, no ownership is acquired. Schultz v. Murphy, 596 S.W.2d 51, 53 (Mo.App.1980). "Purchase" with regard to merchandise, is defined in Webster's Third New International Dictionary, Unabridged, 1981, as meaning "t......
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