Tigue Sales Co. v. Reliance Motor Co.
| Decision Date | 16 October 1928 |
| Docket Number | 38968 |
| Citation | 221 N.W. 514,207 Iowa 567 |
| Parties | TIGUE SALES COMPANY, Appellee, v. RELIANCE MOTOR COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 23, 1929.
Appeal from Lee District Court.--JOHN E. CRAIG, Judge.
Action to recover damages to plaintiff's automobile by reason of a collision with an automobile driven by the defendant Swearingen, and owned, as alleged, by the defendant Reliance Motor Company. The liability is predicated on Section 5026 Code of 1924. Upon the commencement of the trial, plaintiff dismissed his action without prejudice as to the defendant Swearingen, the driver of the car, but as to the other defendant, the cause was tried, and the jury returned a verdict in favor of the plaintiff in the sum of $ 400. Upon the overruling of a motion for a new trial and motion for judgment non obstante veredicto, judgment was entered in conformity to the verdict. The defendant motor company appeals.
Affirmed.
J. O Boyd, for appellant.
E. W. McManus, for appellee.
DE GRAFF, J.
The pleaded liability in this case finds its basis in Section 5026, Code of 1924, which makes the owner of a motor vehicle liable for damages to a third person when said damages result from the negligent operation of the motor vehicle by any person in possession thereof and operating the same with the owner's consent. This statute is comprehensive and unequivocal in its terms, and quite clear in its meaning and intent.
In the instant case, it is conclusively shown that one Gean Swearingen was in the possession of and operating a certain automobile (Hupmobile) licensed in the name of the Reliance Motor Company, and that, on March 27, 1927, he collided, on a certain highway in Lee County, Iowa, with another automobile (Essex), owned by the Tigue Sales Company (appellee), and driven by Thomas V. Tigue, a partner in the said sales company. The petition recites four specifications of negligence on the part of Swearingen in the operation of the car, and further alleges that the car driven by him was the property of the defendant Reliance Motor Company, and was being used and operated by Swearingen with the consent of the Reliance Motor Company and with its knowledge.
The defendant motor company, in answer, denied that the Hupmobile driven by Swearingen was the property of the Reliance Motor Company, and denied that the motor company had any right to give or withhold its consent to the operation of said car by the said Swearingen, as the said car was the property of the said Swearingen. The answer further alleges that the said Swearingen, on March 25, 1927, purchased the said auto from the Reliance Motor Company, and as part payment therefor, gave a chattel mortgage to the said motor company in the sum of $ 333.24, which was duly recorded and indexed, and that the defendant had no further interest in said automobile.
The plaintiff, on the date the case was called for trial, to wit, May 18, 1927, moved the court to dismiss the case against the defendant Swearingen without prejudice. This was done, and the cause proceeded to trial as to the Reliance Motor Company.
At this point, it may be said that we are not concerned with the negligence of the defendant Swearingen, as pleaded in the filed petition. The pleaded negligence is neither denied in the answer nor in the evidence, but it is practically conceded that the damages sustained by appellee find the proximate cause in the negligence of Swearingen. In brief, the appellant rests its defense on the theory that the car in question was not owned by it, and that Swearingen was not driving the car with the consent of the appellant at the time of the collision. The primary issue, therefore, involves the ownership of the automobile at said time.
The facts disclose that, prior to March 25, 1927, Swearingen was the owner of a Durant car, and that on said date he entered into negotiations with the Reliance Motor Company for the purpose of buying the Hupmobile or trading his Durant for it. On that date, as a result of his conversation with the appellant motor company, he signed a "car order," which authorized the motor company to enter his order for a Hupmobile touring car, as per specifications given, for which he agreed to pay the sum of $ 465. This order recites the purchase price, $ 465, and also recites credit by notes and mortgage, $ 275, and for the Durant car, $ 190. This order further recites as follows:
"This contract expresses the entire agreement between the parties; all previous verbal or written communications between the parties with reference to the subject-matter hereof are hereby abrogated."
The Durant car was, on that day, left by Swearingen in the possession of the Reliance Motor Company, and on said date, he took possession of the Hupmobile. Upon the trial of this cause, as a witness for the plaintiff, Swearingen testified, without objection, that the Hupmobile belonged to the Reliance Motor Company, and that he was driving it with the consent and permission of said motor company. He further testified:
The testimony of Swearingen is to the effect that, if the papers (mortgage and notes) went through,--that is, were accepted by the finance company,--the deal with the motor company would be closed; but in the meantime, he should use the Hupmobile, and the deal was to be consummated on the 29th. The accident giving rise to the damages in question occurred "in the meantime," to wit, March 27th.
Mr. Cox, as representative of the Reliance Motor Company, flatly denies the arrangement as related by Swearingen, and consequently the dispute in this case involving the ultimate issue is between the witness Cox and the witness Swearingen. The jury believed Swearingen.
The record further shows that Swearingen never appeared in person before the notary public in relation to this transaction, and that the papers in question were never sent by the appellant to the Universal Finance Company. It also discloses that the Reliance Motor Company, by C. C. Cox, representative, signed a paper bearing date March 29, 1927, which should have been dated March 25,...
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