Yadkin Valley Motor Co. v. Home Ins. Co. of New York

• Decision Date: 15 October 1941
• Docket Number: 244.
• Citation: 16 S.E.2d 847,220 N.C. 168
• Parties: YADKIN VAL. MOTOR CO., Inc., et al. v. HOME INS. CO. OF NEW YORK.
• Court: North Carolina Supreme Court

16 S.E.2d 847

220 N.C. 168

YADKIN VAL. MOTOR CO., Inc., et al. v. HOME INS. CO. OF NEW YORK.

No. 244.

Supreme Court of North Carolina

October 15, 1941

This is a civil action to recover the sum of $500 under an insurance policy for damages to an automobile resulting from collision or upset. The defendant denied that the plaintiff was the unconditional and sole lawful owner of the automobile at the time the policy was issued and at the time of the loss or damage thereto. From the judgment upon the verdict in favor of plaintiff defendant appealed to the Supreme Court and assigned errors.

The issues submitted to the jury and their answers thereto, were as follows:

"1. Was the plaintiff, Mrs. Lillie Martin, the owner of that certain automobile described in the complaint on the 5th day of October, 1938, and the 11th day of October, 1938? Answer Yes.

"2. What amount, if any, is the plaintiff, Mrs. Lillie Martin entitled to recover from the defendant? Answer $500.00."

The Court below rendered judgment on the verdict. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

W. H. McElwee and Hayes & Hayes, all of North Wilkesboro, for plaintiff.

John R. Jones, of North Wilkesboro, and Helms & Mulliss, of Charlotte, for defendant.

CLARKSON Justice.

At the close of plaintiff's evidence and at the conclusion of all the evidence, defendant made motions for judgment as in case of nonsuit. C.S. § 567. Upon the latter motion the Court below sustained the motion as to Yadkin Valley Motor Co., Inc., and overruled the motion as to Mrs. Lillie Martin. The exceptions and assignments of error made by defendant as to the Court below overruling the motion for judgment as of nonsuit, as to Mrs. Lillie Martin, cannot be sustained. It does not appear in the record that plaintiff the Yadkin Valley Motor Co., Inc., had a lien on the automobile in controversy. The question of parol evidence to establish a lien is hereafter considered.

Admissions by defendant: "The defendant admits: (1) That the policy sued upon was executed and delivered by the defendant. (2) That the premium on the policy sued upon was fully paid at the time the policy was issued and delivered. (3) That the automobile described in the policy and referred to in the complaint was damaged by collision or upset on or about Oct. 11, 1938. (4) That the Yadkin Valley Motor Co., Inc., is a corporation organized, existing and doing business under the laws of the State of North Carolina.

The plaintiffs introduced in evidence insurance policy #3165487, dated the 5th day of October, 1938, issued by the Home Insurance Company of New York covering one used Ford DeLuxe Coupe, Motor #4256460, 1938 model; said exhibit or policy being marked "Plaintiff's Exhibit A".

The plaintiffs introduced in evidence summons in the action, dated January 2, 1939, served January 9, 1939. The following is in the record:

"Q. Mrs. Martin, how much do you owe the Yadkin Valley Motor Co., Inc., on that automobile? Ans: $408.96.

"Court: She can testify to what she owes them.

"Q. Did you owe the same amount on October 11, 1938? Ans: Yes, sir."

The Exhibit indicates that it is a note signed by Mrs. Lillie Martin to Yadkin Valley Motor Co., Inc., for $408.96, dated October 5, 1938, "Undersigned jointly and severally promise to pay to the order of Yadkin Valley Motor Co., Inc., at the office of Commercial Credit Company, Charlotte, North Carolina, 12 monthly installments of Thirty-four and 08/100 Dollars--$34.08 each." This note was transferred by the Yadkin Valley Motor Co., Inc., to the Commercial Credit Company. The plaintiff, Yadkin Valley Motor Company, Inc., having no lien on the automobile in question, nonsuit as to it was properly granted. There is no language in the note by which it could be construed as a lien or mortgage. The exceptions and assignments of error made by defendant on this aspect are immaterial, as the Yadkin Valley Motor Company, Inc., is eliminated from the controversy. An attempt to establish a lost lien and defendant's motion to nonsuit, which was allowed, made this aspect immaterial, therefore defendant's exceptions and assignments of error cannot be sustained.

Mrs. Lillie Martin testified, in part: "My name is Mrs. Lillie Martin. I am one of the plaintiffs in this action. *** On October 5, 1938, I owned a 1938 model Ford coupe. The paper which you hand me is the title to the car that I owned. (Plaintiffs offer in evidence certificate of title marked D. The defendant admits that the certificate of title was issued by the Department of Revenue of the State of North Carolina, but objects to the introduction of the certificate of title upon the ground that it was issued on December 5th, 1938, which was exactly two months after the date of the alleged purchase by the plaintiff and almost two months after the date of the collision.) This is my insurance policy; I got it through the mail. I owned the automobile described in the insurance policy on October 11, 1938. On that date it was wrecked. The reasonable market value of the automobile just prior to the time it was wrecked was $600.00, in my opinion. The reasonable market value of the automobile just after it was wrecked, in my opinion, was $50.00."

The defendant contends that the questions involved are:

(1) Did the Court err in admitting as evidence of ownership of the automobile the certificate of title issued approximately two months after the time of the purchase of and collision or upset to the automobile in question? We think not.

In the record, on cross-examination of Kenneth Brooks, by defendant (bookkeeper for the Yadkin Valley Motor Co., Inc., on October 5, 1938), he testified: "She signed the title that day.

"Q. She did sign the title? Ans: Yes, sir.

"Q. And you sent off the application for the title that day? Ans: I don't remember the day the title was sent off.

"Q. Do you know why you didn't get the certificate of title on that car until Dec. 5th? Ans: No, sir.

"Q. Did you keep the application until after the wreck happened? Ans: I don't remember the day the title was mailed off to the Department at Raleigh.

"Q. You attended to that yourself, she didn't have anything to do with it? Ans: No, sir; she did not.

"Q. Well, this is the certificate of title that you are talking about, Plaintiff's Exhibit D, isn't it? Ans: Yes, sir.

"Q. And it is dated December 5, 1938? Ans: The day it is issued and the title is Dated October 5, 1938."

On the certificate of title, is the following: "And that the applicant has stated under oath that said applicant is the owner of said motor vehicle and that it is subject to the following liens and none other: 2nd Lien--Amount--Kind--Date--Favor of. 1st Lien Amount $408.96--Kind C.S. C.--Date 10-5-38--Favor of Yadkin Valley Motor Co., Inc., North Wilkesboro, N. C."

We think this was some evidence, the probative force was for the jury to determine, to sustain plaintiff's contention that she was the owner of the car in question.

The evidence indicates that she made application on October 5, 1938, but the Revenue Department did not issue the certificate until December 5, 1938. This action was brought January 2, 1939.

(2) Did the Court err in permitting the plaintiff and her witnesses to prove by parol testimony the existence and contents of the allegedly lost conditional sale contract to Yadkin Valley Motor Co., Inc., which company was not a named insured in the policy sued upon, and which company was nonsuited at the conclusion of all the evidence? We think not.

The question of parol evidence as to an alleged conditional sale contract, we think has been eliminated from this controversy. The Court below on motion of defendant, sustained the motion to nonsuit the Yadkin Valley Motor Co., Inc. This on defendant's motion made this evidence immaterial.

In the record is the following: "Court: What I want to get in the record here is that you are stating if the jury should find from the evidence in this case and by the greater weight that Mrs. Martin was the owner of that automobile in question on the 5th day of October, 1938, and on the 11th day of October, 1938, the sole owner with the exception of the outstanding lien to the Commercial Credit Company or the Yadkin Valley Motor Co., Inc., that you are not contesting the payment of the policy, if the jury should find she is the owner of it on those dates. Attorney for defendant: No, sir we are perfectly willing to pay our policyholders whatever we owe them, but we don't want anybody else coming in. Attorney for plaintiff: As I understand it--he will pay the full amount of the policy and then the adjustment of the lien will be between Mrs. Martin and the Yadkin Valley Motor Co., Inc. Court: No, sir, he said he would pay whatever the jury said. Attorney for defendant: I mean we will pay whatever we are liable for under the policy. Let's get this stipulation in the record. The defendant, Home Insurance Company, takes the position that under the policy introduced in the case, the Yadkin Valley...