International Service Insurance v. Iowa National Mutual Insurance , 1969 N.C. App. LEXIS 1322 ( 1969 )

BkoCK, J.

Plaintiff assigns as error the conclusions of law by the trial judge. Plaintiff argues that the statutory provisions relating to transfer of ownership were not complied with until 28 May 1963, one day after the accident, and that ownership of the 1958 Ford remained in Piedmont until that date; that Piedmont gave “broad and unfettered custody, dominion and control ”of the automobile to John Zimmerman on 25 May 1963 and impliedly permitted him to allow his brother, James Zimmerman, to .use it, thereby bringing James within the coverage of defendant’s policy. Plaintiff, however, concedes that the question of. permission arises only if ownership remained in Piedmont at the time of the accident on 27 May 1963. Thus the question before us for determination is whether the facts found by the trial court support the conclusion of law that ownership of the automobile involved in the accident passed from Piedmont to John Zimmerman prior to the date of said accident for purposes of tort liability and insurance coverage.

The statutes pertinent to the transfer of title or interest in a motor vehicle were amended in 1961, and as amended in 1961, they are applicable to the present case. G.S. 20-72 (b) and G.S. 20-75, as amended by Chap. 835, Session Laws 1961, provide: “Transfer of ownership in a vehicle ... is not effective until the provisions of this subsection have been complied with.” It is stipulated that there was no execution, assignment and delivery of the title certificate from Piedmont to John Zimmerman until the day after the accident occurred.

The 1961 amendment to G.S. 20-72(b) and G.S. 20-75 was interpreted by our Supreme Court in Indemnity Co. v. Motors, Inc., 258 N.C. 647, 129 S.E. 2d 248. There the defendant motor company had purchased an automobile from an individual, and thereafter resold it to another individual. Upon receipt of the purchase price, the dealer endorsed the title certificate to the purchaser, but did not forward it to the Department of Motor Vehicles in Raleigh prior to the accident; but rather delivered it to a finance company which had a lien on the automobile. The purchaser was involved in an accident while operating the automobile, and claimants sought to establish ownership of the automobile in the motor company so as to recover under the motor company’s liability insurance policy. The insurance company brought a declaratory judgment action seeking an adjudication that ownership had passed to the purchaser; and that it therefore had no coverage as to the accident. Under the 1961 amendment, the Supreme Court held that ownership had passed to the purchaser prior to the accident, even though the title certificate had not been forwarded to Raleigh. In so holding, the Supreme Court held that the 1961 amendment did not change the pre-existing law with regard to ownership for purposes of tort liability or insurance coverage. The court pointed out that the preamble to the amendments as contained in Chap. 835, Session Laws 1961, made it clear that the purpose of the amendments was to clarify and strengthen the lien law with regard to transfer of title. In reference to G.S. 20-73 which requires the transferee of a motor vehicle to make application for a new certificate of title within twenty days of the transfer, the Court stated: “There is nothing in the statute which suggests dealer, a vendor, should be penalized and held liable because of the failure of Bradshaw, a purchaser, to perform his statutory duty.” Indemnity Co. v. Motors, Inc., supra, p. 652.

Another case in point in this regard is Luther v. Insurance Co., 262 N.C. 716, 138 S.E. 2d 402. There the plaintiff had obtained a judgment against one Lamm arising out of an automobile accident which occurred between the plaintiff’s automobile and a 1956 Ford automobile being operated by Lamm. The plaintiff alleged that the 1956 Ford automobile was actually owned by Lee Motor Company at the time of the accident, and was being operated by Lamm with the permission of Lee Motor Company. On such allegations, the plaintiffs sought to collect their judgments from the liability insurance carrier for Lee Motor Company. The plaintiffs’ evidence tended to show that about three weeks prior to the accident Lamm had traded in another automobile to Lee and agreed to purchase the 1956 Ford which he was operating at the time of the accident. The trade-in automobile was treated as a down payment on the 1956 Ford. The title certificate on the 1956 Ford had not been transferred to Lamm prior to the accident. Lamm was not to obtain title to the 1956 Ford until he completed making payments. The trial court entered judgment of nonsuit, and the plaintiffs appealed. The Supreme Court affirmed the judgment of nonsuit, holding that the plaintiffs had failed to establish ownership in Lee Motor Company for purposes of tort liability and insurance coverage.

In the present case, the evidence is sufficient to support findings of fact that prior to the accident John Zimmerman had agreed to purchase the automobile at an agreed price of $695.00, paid a down payment of $100.00, executed a note for the balance of the purchase price, taken a written bill of sale, taken possession of the automobile, and that the assignment of title and application for new title had been signed in blank by the parties. The automobile had been delivered and parked at John Zimmerman’s house, with no license plate on it, and with the understanding that John was to return to Piedmont after the weekend with an FS-1 form, and was at that time to pick up the completed title certificate and obtain a license plate.

The stipulated facts and exhibits support the findings and the conclusion of the trial judge that at the time of the accident the 1958 Ford was not owned by Piedmont and, therefore, did not come within the coverage of defendant’s policy.

The judgment of the court below is

Affirmed.

Campbell and Moeeis, JJ., concur.