Terry Bros. & Meves v. National Auto Ins. Co.

• Decision Date: 18 March 1955
• Docket Number: No. 33644,33644
• Court: Nebraska Supreme Court
• Parties: TERRY BROS. & MEVES, a Partnership, Appellee, v. NATIONAL AUTO INS. CO., a Corporation, Appellee, Gibreal Auto Sales, Inc., a Corporation, Intervener-Appellant.

Page 361

69 N.W.2d 361

160 Neb. 110

TERRY BROS. & MEVES, a Partnership, Appellee, v. NATIONAL AUTO INS. CO., a Corporation, Appellee Gibreal Auto Sales, Inc., a Corporation, Intervener-Appellant.

No. 33644.

Supreme Court of Nebraska.

March 18, 1955.

Syllabus by the Court.

1. A certificate of title of a motor vehicle is generally conclusive evidence in this state of the ownership of the vehicle.

2. An innocent purchaser is one who buys property for a present valuable consideration without knowledge sufficient to charge him in law with notice of any infirmity in the title of the seller.

3. The general rule is that where one of two innocent persons must suffer by the acts of a third, he whose conduct, act, or omission enabled such third person to occasion the loss must sustain it if the other party acted in good faith, without knowledge of the facts, and altered his position to his detriment.

4. In a law action findings of fact made by the court have the same force and effect as the verdict of a jury, and if there is competent evidence to support them, such findings will not be disturbed on appeal.

Floersch & Floersch, Omaha, for intervener-appellant.

W. P. Lauritsen, Grand Island, for Terry Bros. & Meves.

Hyman Polsky, Lincoln, for National Auto Ins. Co.

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

MESSMORE, Justice.

This is an action in replevin brought by Terry Bros. & Meves, a partnership, as plaintiff, against the National Auto Insurance Company, a corporation, as defendant, to secure possession of a 1948 Mercury convertible coupe. Gibreal Auto Sales, Inc., a corporation, by leave of court, was granted a right to intervene and filed a petition in intervention claiming the ownership of said automobile. A jury was impaneled and the cause proceeded to trial. During the progress thereof, by agreement of the parties, the jury was dismissed and the cause proceeded to trial before the trial judge. The trial judge rendered judgment in favor of the plaintiff and against the defendant and the intervener, finding that the plaintiff was the owner of the automobile in question and entitled to possession of it. The trial judge rendered judgment in favor of the plaintiff and against the defendant for damages in the amount of one dollar for illegal detention of the automobile, and costs of the action. The intervener filed a motion for new trial which was overruled. From this order, the intervener appealed.

The plaintiff filed a petition in which it alleged in substance that it was a partnership; that it was the owner of and entitled to the immediate possession of a 1948 Mercury convertible coupe; and prayed judgment against the defendant for the return of the automobile or the value of the same if not returned, and for damages and costs. The plaintiff also filed an affidavit of replevin in due form. Possession of the automobile was delivered to the plaintiff and a replevin bond was filed by the plaintiff after an appraisal of the automobile was made in the amount of $925.

The defendant's answer to the plaintiff's petition was a general denial of the allegations contained therein.

By leave of court, the intervener filed a petition in which it claimed that it was the owner of the automobile in question and entitled to the possession of the same or its value in the event the same was not returned. This petition detailed certain facts and alleged the same constituted a fraud perpetrated on it by Bethke, the purchaser of the automobile from the intervener.

The answer of the plaintiff to the intervener's petition was in effect a general denial of a fraud as pleaded therein, and an affirmative allegation that the fraud or false representations made by the intervener's vendee were made possible by the actions of the intervener, and further denied generally the allegations contained in the intervener's petition.

The reply of the intervener to the answer of the plaintiff was in the form of a general denial.

The record discloses that on January 4, 1950, Gilbert Gibreal, president of the intervener corporation and hereafter referred to as Gibreal, through the intervener sold a 1948 Mercury convertible coupe to Roy Bethke under a conditional sales contract for $1,150, the purchaser to pay $50 down, which he failed to do. The possession of the car was turned over to Bethke, but the title to it was not given to him. On January 24, 1950, Bethke told Gibreal that he was stopped by a policeman for not having proper license plates and the car was impounded. He requested the certificate of title to enable him to buy his license and get the car from the police station because he was required to have a license before it would be surrendered to him. Gibreal transferred the certificate of title to Bethke. Bethke called Gibreal from the court house and informed him that he had to pay last year's taxes on the car before he could obtain the certificate of title and needed $35 for that purpose. Gibreal did not advance this money, but asked Bethke if he had the certificate of title, which he had. Gibreal then asked Bethke to return the title immediately. He did not do so. Gibreal looked for Bethke, and the next morning found him and Orville Bilyeu and two other men walking toward the police station with license plates. Gibreal asked for the title to the car. Bethke said it was at home, and Gibreal told him it would be impossible to get the car unless he had the title. Gibreal said he wanted it right away. Bethke and Bilyeu left to get the title and said they would return in half an hour, but they failed to do so. Gibreal went to the police station and informed the police what happened and was permitted to take possession of the car. Bethke called Gibreal by telephone and told him he would have the title, that he had borrowed the money to pay the taxes from Orville Bilyeu, and would have to pay back the money before he could get the title. He did not advise Gibreal that he had transferred the title to Bilyeu. Gibreal further testified that he did not learn of this fact until he saw a photostatic copy of the certificate of title later. It appears that Gibreal was informed that Bethke owed Bilyeu a gambling debt and Bilyeu refused to surrender the title to the car. Gibreal sold the car to Larry Slayman on February 20, 1950, advising Slayman that he was having difficulty with the certificate of title. The car was sold under a conditional sales contract which in turn was sold by Gibreal to the Live Stock National Bank. Fire, theft, and collision insurance was written for Slayman on this car by the defendant. Gibreal did not start any court action against either Bethke or Bilyeu to secure the return of the title to the car.

Larry Slayman testified that he took possession of the Mercury automobile on February 20, 1950. The license plates were not transferred. He placed license plates from another car on the Mercury. On March 13, 1950, the Mercury was in his possession. He drove the car home and into the garage. He locked the car and closed the garage doors. The next morning the garage was open and the car was missing. He called the police department, the defendant, and the intervener. Later he made a claim for insurance and was advised there would be a waiting period of 30 days to permit the insurance carrier to endeavor to find the car. He settled his difficulties with the intervener by taking another car in place of the Mercury and transferring whatever interest he had in the Mercury to the intervener.

Irvin Meves, a partner of Terry Bros. & Meves, testified that the partnership is located in Grand Island and engaged in the business of buying and selling cars. On March 13, 1950, Roy Bethke and Orville Bilyeu came to the plaintiff's place of business about 9 a. m., with a 1948 Mercury convertible which they wanted to sell. After looking at the car, the plaintiff offered $750 for it, which offer was accepted. A check was given to Bilyeu for the purchase price, and the plaintiff received a Nebraska certificate of title by an assignment by Bilyeu to it. The title was acquired by Roy Bethke January 25, 1950, from the Gibreal Auto Sales, Inc. The Mercury car had Douglas County license plates on it, which Bilyeu and Bethke took with them. On March 20, 1950, this car was sold to Edward and/or Jerry L. Guzinski and title to the car obtained by them. It was sold to the father for the use of the son who was under age.

It appears that the insurance carrier that issued the policy to Slayman contacted Guzinski who had possession of the Mercury, obtained permission to take it, and drove it back to Lincoln on May 3, 1950. The plaintiff contacted the defendant with reference to the Mercury to obtain possession of it, which was refused. After possession of the Mercury was taken by the insurance carrier, Guzinski contacted the plaintiff and a deal was made whereby Guzinski assigned the title to the Mercury to the plaintiff who started an action to replevin the car from the defendant on May 17, 1950.

On cross-examination Meves testified that Bethke originally lived in Grand Island and was a mechanic. The plaintiff had sold him a car on one occasion, and that was all the plaintiff knew about him. Bethke's father, who was employed in Grand Island, bought several cars from the plaintiff.

There is no dispute between the parties or conflict in the evidence relative to the chain of title. It appears from the record that the intervener had owned the Mercury previously, and had re-acquired title from one Kennelly for $1,000 in December 1949. Kennelly's assigned title was reassigned by the intervener to Bethke on January 24, 1950, and on the next day Bethke secured a Nebraska title in his name. The same day Bethke assigned his title to Bilyeu, and on January 26, 1950, Bilyeu secured a new title in his name. When the car was purchased by the plaintiff, Bilyeu assigned the title to the plaintiff, and...