State Farm Mut. Auto. Ins. Co. v. Drawbaugh, No. 33547

CourtSupreme Court of Nebraska
Writing for the CourtHeard before SIMMONS; MESSMORE; CHAPPELL; SIMMONS; I am authorized to say that YEAGER
Citation159 Neb. 149,65 N.W.2d 542
Docket NumberNo. 33547
Decision Date23 July 1954
PartiesSTATE FARM MUT. AUTO. INS. CO. v. DRAWBAUGH.

Page 542

65 N.W.2d 542
159 Neb. 149
STATE FARM MUT. AUTO. INS. CO.
v.
DRAWBAUGH.
No. 33547.
Supreme Court of Nebraska.
July 23, 1954.

Page 543

Syllabus by the Court.

1. The burden is on the plaintiff in a replevin action to prove by a preponderance of the evidence that at the time of the commencement of the action he was the owner of the property sought to be replevied, that he was entitled to the immediate possession of it, and that the defendant wrongfully detained it.

2. The law requires that a plaintiff in a replevin case must recover on the strength of his right in or to the property and not upon any weakness of the interest of the defendant therein.

3. A plaintiff in replevin must prove the title as he pleads it.

4. Any fact that transpires after the date of the institution of a replevin case is immaterial in the consideration and determination of the merits of the case.

5. The purpose of the act relating to transfers and titles to motor vehicles is to provide a means of identifying motor vehicles, to ascertain the owners thereof, to prevent theft of motor vehicles, and to prevent fraud.

[159 Neb. 150] 6. A certificate of title of a motor vehicle is generally conclusive evidence in this state of the ownership of the vehicle.

7. The word 'owner' means one who has the legal title or rightful title, whether the possessor or not.

8. Statutes is pari materia should be construed together, and, if possible, effect be given to all of their provisions.

Kirkpatrick & Dougherty, York, for appellant.

Tomek & Tomek, David City, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action in replevin brought by the State Farm Mutual Automobile Insurance Company, plaintiff, against Loran Drawbaugh, defendant, in the district court for Butler County to obtain possession of a 1950 Chevrolet automobile.

The plaintiff alleged in its petition and affidavit filed on February 27, 1952, that the plaintiff had been, since the 27th day of January 1951, the owner of one 1950 Chevrolet automobile, describing it, and was entitled to immediate possession thereof. By an amended petition filed on Septmeber 6, 1952, shortly before trial, the plaintiff alleged ownership of the automobile and that it was the holder of the legal title thereto and entitled to immediate possession thereof.

The defendant's answer admitted that plaintiff was engaged in the general writing of fire and theft automobile insurance and licensed to transact business in this state; denied generally all other allegations of the plaintiff's petition, and further alleged that the defendant was the sole owner of the automobile; and prayed

Page 544

that the plaintiff's petition be dismissed, that the automobile be returned to the defendant, or upon failure to return it, the defendant have judgment for the value of the possession[159 Neb. 151] of the automobile in the sum of $1,500, and for costs. The plaintiff's reply was a general denial of the affirmative allegations of the defendant's answer.

At the close of the evidence both parties made motions for directed verdict and stipulated that the court should decide the issues presented. The trial court overruled the motion of the plaintiff and sustained the motion of the defendant, and found for the defendant because the plaintiff did not sustain the burden of proving that it had ownership or title to the automobile in question on the day it filed its action in replevin, and that the plaintiff should pay to the defendant the stipulated value of the car plus legal interest from the date the car was taken under the writ of replevin. The court entered judgment in favor of the defendant and against the plaintiff in the sum of $1,250, with interest from the 28th day of February 1952, until paid, and costs of the action.

The car involved was purchased by Clarence Anderson from the Central Chevrolet Company at Grand Island. He received a manufacturer's certificate. Certificate of title was issued by the county clerk of Hall County to Clarence Anderson upon a proper application which conformed to the requirements of section 60-114, R.R.S.1943. He had the car from June 27, 1950, to January 12, 1951. He parked the car in front of his apartment in Lincoln on the evening of January 12, 1951, and left it there. In the morning it was missing. He made a claim against the plaintiff for the loss sustained either on January 13 or 14, 1951. The plaintiff paid the loss to Anderson on the 27th of January 1951, took his release, and at the same time took an assignment of the certificate of title as appears on the reverse side thereof. The car was found in the possession of the defendant at his farm home. He claimed to be the owner of the car, and had obtained a certificate of title under date of May 16, 1951, from the county clerk of Butler County. The title was from one Lloyde G. Deppe.

There is no question but that the automobile found in [159 Neb. 152] the possession of the defendant was the automobile owned by Anderson upon which the plaintiff paid the loss and received the certificate of title and the assignment of the automobile from Anderson. Nor is there any question but that this automobile was stolen.

The car was taken under a writ of replevin on February 27, 1952, and was appraised in the amount of $1,250. After the car was replevied it was sold to a dealer in Fremont and a certificate of title given for it. The record shows an application for certificate of title made by the plaintiff to the county clerk of Lancaster County on March 24, 1952, or nearly 30 days from the time the plaintiff filed the replevin action.

There are certain fundamental rules which govern actions in replevin which we deem advisable to set out at this point.

The burden is on the plaintiff in a replevin action to prove by a preponderance of the evidence that at the time of the commencement of the action he was the owner of the property sought to be replevied, that he was entitled to the immediate possession of it, and that the defendant wrongfully detained it. See Stickell v. Haggerty, 158 Neb. 34, 62 N.W.2d 107; Fitzsimons v. Frey, 153 Neb. 124, 43 N.W.2d 531.

The burden is on the plaintiff in replevin to establish facts necessary for him to recover, and these must be shown to have existed at the time the action was commenced. See Alliance Loan & Investment Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593; Bank of Keystone v. Kayton, 155 Neb. 79, 50 N.W.2d 511.

Any fact that transpires after the date of the institution of a replevin case is immaterial in the consideration and determination of the merits of the case. Alliance Loan & Investment Co. v. Morgan, supra.

Page 545

The law requires that a plaintiff in a replevin case must recover on the strength of his right in or to the property and not upon any weakness of the interest of the defendant therein. See, Alliance Loan & Investment Co. v. [159 Neb. 153] Morgan, supra; Bank of Keystone v. Kayton, supra.

An allegation of general ownership in an action in replevin is not supported by proof of special ownership. See Robinson v. Kilpatrick-Koch Dry Goods Co., 50 Neb. 795, 70 N.W. 378.

A plaintiff in replevin must prove the title as he pleads it. See Suckstorf v. Butterfield, 54 Neb. 757, 74 N.W. 1076. See, also, Wilson v. City Nat. Bank, 51 Neb. 87, 70 N.W. 501.

The principal questions to be determined are: (1) Is the evidence sufficient to sustain the plaintiff's allegation of ownership as pleaded in the plaintiff's petition when the replevin action was instituted; and (2) did title to the automobile pass to the plaintiff as assignee upon the delivery of the certificate of title so assigned?

This appeal involves the act relating to title and transfers of motor vehicles which act is found in Chapter 60, article 1, R.R.S.1943, sections 60-101 to 60-117, and also certain sections with reference to motor vehicle registration, Chapter 60, article 3, R.R.S.1943, sections 60-301 to 60-344. Prior to our present statute with reference to the title of motor vehicles initially enacted in 1939 (Laws 1939, c. 81, p. 328), title to automobiles could be transferred between living persons only by compliance with sections 60-310 and 60-325, Comp.St.1929, relative to such transfer. See In re Estate of Wroth, 125 Neb. 832, 252 N.W. 322; Mackechnie v. Lyders, 134 Neb. 682, 279 N.W. 328; In re Estate of Nielsen, 135 Neb. 110, 280 N.W. 246. The 1939 act did not change section 60-310 of the Comp.St.1929. However, by the Laws of 1947 (Laws 1947, c. 204, s. 6, p. 669), it was changed to its present language which is: 'Upon the transfer of ownership of any motor vehicle, its registration shall expire, and the person in whose name such vehicle is registered shall be required to observe the provisions of sections 60-101 to 60-117.' Section 60-310, Comp.St.1929, is now section 60-314, R.R.S.1943.

[159 Neb. 154] Section 60-326, R.R.S.1943, formerly section 60-325, Comp.St.1929, provides in part: 'The treasurers of the various counties shall be agents of the Department of Roads and Irrigation in such counties for the purpose of registering motor vehicles and for the granting of licenses to the applicants, subject to the requirement of sections 60-301 to 60-343, and in accordance with such rules and regulations as shall be imposed by the department, * * *.'

It is apparent by the changes made in sections 60-310 and 60-325, Comp.St.1929, it was the intention of the Legislature to make certain in the act relating to titles and transfers of motor vehicles, the only means whereby transfers and titles to motor vehicles could be made.

The pertinent sections of the statutes involved in this appeal are as follows: Section 60-104, R.R.S.1943, provides in part: 'No person, * * * shall sell or otherwise dispose of a motor vehicle, * * * without delivering to the purchaser or transferee thereof a certificate of title with such...

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12 practice notes
  • Fuel Exploration, Inc. v. Novotny, No. 84-433
    • United States
    • Supreme Court of Nebraska
    • October 11, 1985
    ...thereafter is immaterial in the consideration and determination of the merits of the case. State Farm Mutual Auto. Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N.W.2d 542 (1954), overruled in part on other grounds, First Nat. Bank & Trust Co. v. Ohio Cas. Ins. Co., 196 Neb. 595, 244 N.W.2d 2......
  • First Nat. Bank & Trust Co. of Lincoln v. Ohio Cas. Ins. Co., No. 40598
    • United States
    • Supreme Court of Nebraska
    • July 21, 1976
    ...owners, and preventing theft of motor vehicles and fraud in the transfer of motor vehicles. State Farm Mut. Auto. Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N.W.2d 542 (1954); Snyder v. Lincoln, 150 Neb. 580, 35 N.W.2d 483 (1948). To achieve this end, the Legislature has provided that the excl......
  • Calhoun v. Farm Bureau Mut. Ins. Co., No. 51194
    • United States
    • United States State Supreme Court of Iowa
    • December 10, 1963
    ...thereof. His title and ownership are superior to any rights the first purchaser may have.' In State Farm Mut. Auto. Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N.W.2d 542, plaintiff's petition for replevin was dismissed where it sought to obtain possession of a vehicle for which it had paid a l......
  • Terry Bros. & Meves v. National Auto Ins. Co., No. 33644
    • United States
    • Supreme Court of Nebraska
    • March 18, 1955
    ...Neb. 188, 51 N.W.2d 315; Loyal's Auto Exchange, Inc. v. Munch, 153 Neb. 628, 45 N.W.2d 913; State Farm Mutual Auto Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N.W.2d In the light of the facts as shown by the record, the following is applicable: When personal property is obtained from its owner ......
  • Request a trial to view additional results
12 cases
  • Fuel Exploration, Inc. v. Novotny, No. 84-433
    • United States
    • Supreme Court of Nebraska
    • October 11, 1985
    ...thereafter is immaterial in the consideration and determination of the merits of the case. State Farm Mutual Auto. Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N.W.2d 542 (1954), overruled in part on other grounds, First Nat. Bank & Trust Co. v. Ohio Cas. Ins. Co., 196 Neb. 595, 244 N.W.2d 2......
  • First Nat. Bank & Trust Co. of Lincoln v. Ohio Cas. Ins. Co., No. 40598
    • United States
    • Supreme Court of Nebraska
    • July 21, 1976
    ...owners, and preventing theft of motor vehicles and fraud in the transfer of motor vehicles. State Farm Mut. Auto. Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N.W.2d 542 (1954); Snyder v. Lincoln, 150 Neb. 580, 35 N.W.2d 483 (1948). To achieve this end, the Legislature has provided that the excl......
  • Calhoun v. Farm Bureau Mut. Ins. Co., No. 51194
    • United States
    • United States State Supreme Court of Iowa
    • December 10, 1963
    ...thereof. His title and ownership are superior to any rights the first purchaser may have.' In State Farm Mut. Auto. Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N.W.2d 542, plaintiff's petition for replevin was dismissed where it sought to obtain possession of a vehicle for which it had paid a l......
  • Terry Bros. & Meves v. National Auto Ins. Co., No. 33644
    • United States
    • Supreme Court of Nebraska
    • March 18, 1955
    ...Neb. 188, 51 N.W.2d 315; Loyal's Auto Exchange, Inc. v. Munch, 153 Neb. 628, 45 N.W.2d 913; State Farm Mutual Auto Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N.W.2d In the light of the facts as shown by the record, the following is applicable: When personal property is obtained from its owner ......
  • Request a trial to view additional results

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