Weiss v. Union Ins. Co.
| Decision Date | 06 March 1979 |
| Docket Number | No. 41806,41806 |
| Citation | 276 N.W.2d 88,202 Neb. 469 |
| Parties | Joseph WEISS, Appellee, v. UNION INSURANCE COMPANY, a corporation, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. The execution of the certificate of title is the exclusive method of conveying ownership to a motor vehicle, but the certificate is not in itself conclusive of ownership.
2. In the construction of a statute, no sentence, clause, or word should be rejected as meaningless or superfluous; rather, the plain and ordinary meaning of all the language employed should be taken into account in order to determine the legislative will.
3. In determining whether there has been delivery of an executed certificate of title, the ordinary rules pertaining to the delivery of a written instrument apply.
4. The delivery of a written instrument is largely a question of intent, which is to be determined from all the facts and circumstances of the particular case. There must be an intent on the part of the grantor that the instrument operate as a muniment of title to take effect presently and an acceptance by the grantee with the intent to take title.
5. The judgment of a trial court in an action at law where a jury has been waived has the effect of a verdict of a jury and should not be set aside on appeal unless clearly wrong. In determining the sufficiency of the evidence to sustain a judgment, that evidence must be considered most favorably to the successful party, every controverted fact must be resolved in that party's favor, and he is entitled to the benefit of any inferences reasonably deducible from it.
6. An instrument is not delivered until it has passed beyond the dominion, control, and authority of its maker and is no longer capable of being recalled; and where the maker gives the instrument to a third party to hold until the happening of some contingency, there is no delivery.
7. Where a third party has the duty to hold an executed certificate of title on behalf of the seller of a motor vehicle until the performance of the conditions of the sale and then deliver the certificate to the buyer, that party is acting as an escrow agent.
8. When an executed certificate of title is held in escrow, legal title to the motor vehicle remains in its seller until performance of the conditions of the contract by the buyer.
9. The Supreme Court may, at its option, consider plain error not specified in appellant's brief.
R. Kevin O'Donnell and William P. Mueller, of McGinley, Lane, Mueller, Shanahan & McQuillan, Ogallala, for appellant.
Terry E. Savage, Joseph M. Caffall, Imperial, for appellee.
Heard before SPENCER, McCOWN, CLINTON, and WHITE, JJ., and WARREN, District Judge.
Union Insurance Company appeals from a holding that Joseph Weiss was the owner of a motor vehicle covered by Weiss' automobile insurance policy with Union on the day the motor vehicle was involved in an accident, that Union's attempted termination of the policy was null and void, and that Weiss was entitled to damages in the amount of the fair market value of the vehicle on the day of the accident less its salvage value.
Joseph Weiss owned a 1974 Chevrolet pickup truck. During the period relevant to this action, the truck was insured with Union for a policy period ending September 21, 1976. Among other things, the insurance contract covered collision damage to the truck in the amount of its actual cash value less $100, and the policy was in effect while any person was using or operating the truck with Mr. Weiss' permission.
In July 1976, Weiss agreed to sell the truck to Ivan Shill, a fellow employee, for $3,100, provided Shill could come up with the purchase price. Since there was a lien on the truck in the amount of $3,100, Weiss felt he needed to receive the entire purchase price at the time of the sale. Weiss and Shill discussed the possibility of financing the sale with a Mr. Beckett, an officer of the bank holding the security interest in the truck. It was eventually agreed that the bank would loan Shill $2,300 and Weiss' and Shill's employer would loan Shill an $800 downpayment and cosign the note for the bank loan. The two loans to Shill were to be used to pay Weiss' debt, so that after the sale Weiss would have no further obligation to the bank.
On July 13, 1976, Weiss and Shill went to the bank and signed several documents relating to the transaction. Their employer was not present at that meeting as he was out of town that day, but he intended to go to the bank at some other time to cosign the note and hand over the downpayment. Among other things, Weiss and Shill executed and Mr. Beckett notarized the certificate of title to the truck. The certificate had been held by the bank pursuant to Weiss' loan and remained with the bank after it was executed.
Prior to July 13, Weiss had allowed Shill to use the truck from time to time. Between July 13 and 18, Shill used the truck several times. Weiss used the truck at least once in that period and, on one of the days, the truck was in the shop for repairs which were authorized and paid for by Weiss. On July 18, Shill was involved in an accident while driving the truck, and the truck was damaged beyond possibility of repair. It was stipulated at trial that the truck had a fair market value of $3,100 prior to the accident and a salvage value of $400 after the accident.
Weiss reported the accident to Union. In early August, Weiss received a letter from Union denying liability under the policy as of July 13, 1976, on the ground that Weiss had given title to Shill on that day. A check for the remainder of the premium on the truck was enclosed in the letter. Weiss returned the check to the company and, after further efforts to communicate with Union failed, brought this suit.
A jury was waived and trial was had to the court. After hearing the evidence, which consisted primarily of the testimony of Beckett, Weiss, and Shill, the court ruled that Weiss was the owner of the truck on July 18 because there had been no delivery of the truck or the title on July 13 or thereafter. The court found that the attempted cancellation of the policy was null and void and ordered that a judgment be entered for Weiss and against Union in the sum of $2,700 plus costs. Union appealed. We affirm in part and reverse in part.
Union's assignments of error consolidate into a challenge to the court's finding that Weiss was the owner of the truck after July 13 because there had been no delivery of the truck or the title. Whether or not Weiss was the owner of the truck after July 13 controls the validity of Union's termination of the policy and its liability under the policy; hence, the assignments of error on these points are meaningless.
The sale of motor vehicles in Nebraska is regulated by the Certificate of Title Act. §§ 60-102 through 60-117, R.R.S.1943. Section 60-105(1), R.R.S.1943, states in pertinent part: "No person . . . acquiring a motor vehicle . . . from the owner thereof . . . shall acquire any right, title, claim, or interest in or to such motor vehicle . . . until he shall have had delivered to...
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