State v. Cox

• Decision Date: 31 December 1924
• Docket Number: No. 25322.,25322.
• Citation: 268 S.W. 87
• Parties: STATE ex rel. CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN., v. COX et al, Judges.
• Court: Missouri Supreme Court

268 S.W. 87

STATE ex rel. CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN., v. COX et al, Judges.

No. 25322.

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

Certiorari to Springfield Court of Appeals.

Certiorari by the State, at the relation of the Connecticut Fire Insurance Company of Hartford, Coma., against Argus Cox and others, Judges of the Springfield Court of Appeals, to quash record in case of J. P. Howell against relators (257 S. W. 178). Record quashed.

John Schmook, of Springfield (Roy F. Britton, of St. Louis, General Counsel for Automobile Club of Missouri, of counsel), for relator.

C. W. Hamlin and L. H. Musgrave, both of Springfield, for respondents.

Jesse W. Barrett, Atty. Gen., and William L. Vandeventer, Sp. Asst. Atty. Gen., amici curiæ

Statement.

BAILEY, C.

This is an application by relator to quash the record of the Springfield Court of Appeals, in the case of Howell, Respondent, v. Connecticut Fire Insurance Company, Appellant, reported in full at pages 178 and following of 257 S. W. Reporter. As a matter of convenience, in considering the case, we will refer to same as published in the reporter supra, and will refer to Howell as plaintiff or respondent, and to the insurance company as defendant or appellant. After the case reached this division by assignment, the Attorney General and his as. sistant were permitted to file a brief, and appear as amid curiae in behalf of relator and the state.

It appears from the decision of the Springfield Court of Appeals, as reported in 257 S. W. at pages 178 and following, that plaintiff, Howell, sued this relator in the justice's court of Howell county, Mo., on a policy of insurance for $200, which had been taken out to cover the loss by fire on a Chevrolet car. The case reached the circuit court on appeal, and there a judgment was rendered for the defendant, from which an appeal was taken by Howell to the Springfield Court of Appeals. The latter reversed and remanded the cause, and hence this application for a writ of certiorari by the abovenamed defendant.

Respondents, in their opinion, assert that:

"The sole question to be determined here is, did the plaintiff have an insurable interest in the automobile at the time the policy was issued and at the time of the fire? If it be determined that he had, then the plaintiff should recover, and, if he had no insurable interest, then the judgment of the trial court must be affirmed."

A motion for rehearing was filed and overruled in the Court of Appeals and hence its decision is final, unless quashed in this proceeding.

The determination of the issue presented by the Court of Appeals involves the application and construction of the provisions of the Motor Law, passed by the Fifty-First General Assembly (Extra Session), and reported in the Laws of 1921, Extra Session, at pages 76 to 107, inclusive.

It appears from the facts, as stated in the opinion of respondents, that on December 22, 1922 (257 S. W. p. 179), one S. G. Robertson was the owner of the automobile which is the subject of the insurance. He had paid the premium for a $200 policy of insurance to this relator's agent, but the policy had not been delivered. On said December 22d, Robertson sold the automobile to the plaintiff, and the policy, instead of being issued to Robertson, was made directly to Howell, the purchaser of the car. On the same date above mentioned, Robertson delivered to the plaintiff the policy sued on, the certificate of title, which had been issued to him by the Secretary of State, a bill of sale which gave the purchaser and seller's name and address, set forth the" consideration paid for the car, and described the car in the exact words and figures as it is described in the face of the state certificate, covenanted that it was free from incumbrance, that he had a legal right to dispose of same, and that it contained a warranty to defend the title against all claimants. The bill of sale was signed by S. G. Robertson, and it was not acknowledged. On the 23d of December, 1922, the car burned and, after some negotiation with the insurance adjuster, liability was denied on the ground that the seller, S. G. Robertson, and the purehaser,,J. P. Howell, had not conformed to the requirements of the law as set forth in the chapter on motor vehicles, found on page 76 and following, Session Acts 1921, Extra Session, and particularly that portion of the law which relates to the transfer of cars and the certificates of title, found on page 90 (section 18) of said act, which provides, among other things:

"In the event of a sale or transfer of ownership of a motor vehicle or trailer for which a certificate of ownership has been issued the holder of such certificate shall endorse on the same an assignment thereof, with warranty of title in form printed thereon, and prescribed by the commissioner, with a statement of all liens or encumbrances on said motor vehicle or trailer, and deliver the same to the buyer at the time of the delivery to him of said motor vehicle or trailer. The buyer shall then present such certificate, assigned as aforesaid, to the commissioner, at the time of making application for the registration of such motor vehicle or trailer, whereupon a new certificate of ownership shall be issued to the buyer, the fee therefor being $1.00. If such motor vehicle or trailer is sold to a resident of another state or country, or if such motor vehicle or trailer is destroyed or dismantled the owner thereof shall immediately notify the commissioner. Certificates when so assigned and returned to the commissioner shall be retained by the commissioner and all certificates shall be appropriately indexed so that at all times it will be possible for him to expeditiously trace the ownership of the motor vehicle or trailer designated therein. Four months after this law takes effect and thereafter, it shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void. * * * The commissioner shall determine the form in which application for such certificates of ownership and assignments shall be made, in case forms differing from those used for individuals are, in his judgment, reasonably required. * * *

"The commissioner shall co-operate with the commissioners or the official of other states and countries having supervision of the registration of motor vehicles and shall exchange information with them relative to the registration, ownership, sale and theft of motor vehicles, for the purpose of suppressing the stealing and unauthorized use of motor vehicles."

Section 29 of said act, after providing a number of penalties for a violation of said law, contains paragraph (d), which reads as follows:

"Any person who violates any of the other provisions of this act shall, upon conviction thereof, be punished by a fine of not less than five dollars ($5.00) or more than five hundred ($500.00) or by imprisonment in the county jail for a term not exceeding two years, or by both such fine and imprisonment."

The form which the commissioner prescribed for assignments, and which is written or printed on the back of each certificate of title issued by his office, is as follows:

"Assignment of Title.

"For value received I hereby sell, assign or transfer unto ___ (name of purchaser), (address) ____, Missouri, the motor vehicle described on the reverse side of this certificate, and I hereby warrant the title to said motor vehicle and certify that at the time of delivery the same is subject to the following liens or incumbrances, and none other:

"Amount, ____. Kind, ____. Date, ____. Favor of ___.

                            "[Signed] ____, Assignor."
                

See 257 S. W. 179.

In the opinion respondents say:

"Following this assignment of title is a form for the assignor to acknowledge the execution of the assignment before a notary public. The point in this case upon which the defendant seeks to evade liability is that this blank form of assignment on the certificate of title was not signed by Robertson, the assignor, nor was it acknowledged at the time the sale of the car was made, at the time the insurance was written, and at the time of the fire. Respondent therefore points to the law which by its expressed terms requires that an assignment be executed in the form prescribed by the commissioner, and further provides that a failure to comply with this law renders the transaction `unlawful, fraudulent, and void,' and a provision setting forth the penalty for such failure; the theory being that the law not having been complied with, with reference to the sale of motor vehicles, the sale from Robertson to plaintiff was unlawful, fraudulent and void, and that therefore the consideration for the purported sale being unlawful the transaction between the parties, as they undertook to carry out the sale, vested no title or interest whatever to the car in the plaintiff, and having no interest or title he could have no insurance." (Italics ours.)

The Court of Appeals refused to follow the above requirements of the law, and held, that the bill of sale, hereafter referred to, given by Robertson to plaintiff Howell was a substantial compliance with the law, and that plaintiff therefore had an insurable interest in the automobile which burned, and could maintain the above action. On the other hand, relator contends that the Court of Appeals, in holding as above indicated, refused to follow the last previous rulings of our Supreme Court and that the record of said court should accordingly be quashed. These matters will be considered in the opinion.

Opinion.

I. It is...