Shearin v. Globe Indemnity Company , 267 N.C. 505 ( 1966 )

148 S.E.2d 560 (1966) 267 N.C. 505

Mary Pridgen SHEARIN, Administratrix of the Estate of John Jacob Pridgen, Deceased
v.
GLOBE INDEMNITY COMPANY.

No. 289.

Supreme Court of North Carolina.

June 16, 1966.

Vernon F. Daughtridge and Narron, Holdford & Holdford, Wilson, for plaintiff appellant.

Gardner, Connor & Lee, Wilson, for defendant appellee.

BOBBITT, Justice.

Whether the judgment of involuntary nonsuit at March 1960 Civil Term in the action against Auto Exchange, Inc., was entered on account of the insufficiency of the evidence as to ownership of the car by Auto Exchange, Inc., or operation thereof by Speight, or actionable negligence of Speight or that Speight was the agent of Auto Exchange, Inc., does not appear. Suffice to say, adjudication that the evidence then offered was insufficient, for undisclosed reasons, to warrant submission of that case to the jury, is not a bar to this action.

Nor is there merit in plaintiff's plea that Globe, by defending the action against Auto Exchange, Inc., waived its right to deny coverage as to Speight. Globe's policy covered the liability, if any, of Auto Exchange, Inc., the named insured. Globe defended the action against the estate of Speight under full reservation of its right to deny coverage as to Speight. See Jamestown Mutual Insurance Co. v. Nationwide Mutual Insurance Co., 266 N.C. 430, 146 S.E.2d 410.

The garage liability policy issued by Globe to Auto Exchange, Inc., does not list or describe any specific automobile(s). It covers "any automobile owned by or in charge of the named insured" and used principally "for the purpose of an automobile sales agency, repair shop, service station, storage garage or public parking place, and all operations necessary or incidental thereto." A person operating such an automobile is covered by the policy if his actual use thereof is with the permission of the named insured. Godwin v. Harleysville Mutual Casualty Co., 256 N.C. 730, 125 S.E.2d 23; Luther v. Nationwide Mutual Insurance Co., 262 N.C. 716, 138 S.E.2d 402.

The crucial question is whether the evidence was sufficient to permit a jury to find that the 1952 Chevrolet involved in the accident of May 12, 1958, was then owned by Auto Exchange, Inc., "and used principally in the above defined operations" (automobile sales agency, etc.), and that its actual use by Speight on May 12, 1958, was with the permission of Auto Exchange, Inc.

Plaintiff offered in evidence the adverse examination of C. M. Link, Claims Manager and Adjuster for Globe. The pertinent facts disclosed therein and the exhibits attached thereto are set forth in our preliminary statement.

A witness for plaintiff, Mrs. Florence L. Sutton, testified in substance, except when quoted, as follows: During 1958 she was secretary-treasurer of Dixie Auto Finance Company (Dixie). Early in 1958, Dixie financed for Wortle Brantley (Brantley) a 1952 Chevrolet Brantley had purchased from Auto Exchange, Inc. Brantley's note to Dixie was endorsed by Boyette, individually. The title certificate in Dixie's possession showed the 1952 Chevrolet was registered in the Department of Motor Vehicles in the name of Brantley and that Dixie had a lien thereon executed by Brantley. Brantley was unable to make the payments and requested Dixie "to repossess the car." Brantley did not execute an assignment of his title or "sign any sort of consent for surrender of the car." Dixie's lien thereon was not foreclosed. Boyette "wholesaled this car" with Dixie. Boyette signed a "wholesale note" to Dixie against this particular car "approximately April of 1958" and paid Dixie the balance on the Brantley note. Mrs Sutton testified: "The vehicles that were wholesaled by T. R. Boyette were the vehicles of Boyette Auto Exchange, Inc." In April 1958, Boyette, in a telephone conversation, told her "he had made a sale or disposition of that automobile," and asked her to finance the car for Speight. Dixie refused to do so. Boyette paid off the "wholesale note" in June 1958, at which time the title certificate issued to Brantley was delivered to him.

An unsigned accident report dated May ___, 1958, plaintiff's Trial Exhibit No. 11, identified "Boyette Auto Exchange" as the policyholder; and under the heading, "Insured Automobile," the following appears: "Owner's name if not owned by Policyholder: Clarence Haywood Speight."

The foregoing is a summary of plaintiff's admitted evidence. It must be considered in the light of the fact that "(p)rior to 1961 a purchaser of a motor vehicle acquired title notwithstanding the failure of his vendor to deliver vendor's certificate of title or vendee's failure to apply for a new certificate." Community Credit Co. of Lenoir, Inc. v. Norwood, 257 N.C. 87, 90, 125 S.E.2d 369, 371, and cases cited.

The admitted evidence tends to show Auto Exchange, Inc., had sold the 1952 Chevrolet to Speight prior to May 12, 1958. Hence, it was not sufficient to withstand defendant's motion for judgment of nonsuit.

Plaintiff offered in evidence the adverse examinations of Boyette taken July 12, 1958, and December 1, 1959, in the prior action against Auto Exchange, Inc. Defendant's objections thereto were sustained. Plaintiff contends the admitted and excluded evidence was sufficient to withstand defendant's motion for nonsuit.

The testimony of Boyette on said adverse examinations related to the ownership of the 1952 Chevrolet on May 12, 1958, and to the circumstances with reference to Speight's possession and use thereof. Plaintiff contends this testimony was competent because Auto Exchange, Inc., was defended in said action by Globe, and Globe's attorneys were present and cross-examined Boyette. Defendant contends this testimony was incompetent and properly excluded. Suffice to say, a serious question exists as to the competency of this evidence; and authority bearing directly on the question was not cited in the briefs nor discovered by our research. Under these circumstances, we deem it appropriate to consider whether this testimony, if competent, would suffice to require submission to the jury.

On said adverse examinations, Boyette testified in substance, except when quoted, as follows:

Auto Exchange, Inc., obtained possession of the 1952 Chevrolet from Dixie. It borrowed the money from Dixie "on this car" to pay off Brantley's debt. Dixie continued to hold the (Brantley's) title certificate as collateral.

In April 1958, Boyette saw Speight about buying a car. He had been advised that Speight could buy a car and pay cash. Later, Speight came to the place of business of Auto Exchange, Inc. He advised Boyette he knew the 1952 Chevrolet, and the former owner thereof, and "took the car and tried it out a little bit." Speight said "he would like to have the car." They agreed on a price of $495.00 cash. Speight made a deposit of $40.00 or $45.00. He asked Boyette "if it was all right for him to drive the car," saying "he knew he would have his money in a few days." (Note: This transaction occurred on or about April 18, 1958, and from then until the wreck on May 12, 1958, Speight had the car.)

When Speight came back the following Saturday, he told Boyette "he didn't have the money and expected to get it in a day or two." At that time he made another payment of $20.00 on the car. The following Saturday Speight returned, saw Boyette's brother, and "didn't say anything but just told him he wanted to pay (Boyette) $20.00." When advised of this visit and $20.00 payment, Boyette stated to his brother: "Well, George, we have got to get that thing straight; he has got to pay for the automobile or we have got to bring it in." On the following Wednesday or Thursday, Boyette went to see Speight. Meanwhile, Boyette had learned that Speight's driver's license had been revoked. Boyette saw Speight at his home at Lamm's Crossroads. Boyette testified: "(H)e was fixing to leave in his car." Again: "I talked to him and told him that we had to get it straightened out, that it had to be straightened out, ``You will have to bring the car around or you will have to pay for it,' and he assured me that he could straighten it out the following Saturday." Boyette testified he did not take possession of the 1952 Chevrolet on this occasion because he "didn't have a driver to drive the car." On Saturday, Speight did not bring the car around or pay for it. Boyette and his brother planned to go get it on Monday, May 12, 1958, the day of the wreck.

While there is ample evidence to support a finding that the 1952 Chevrolet was sold by Auto Exchange, Inc., to Speight under an indefinite credit arrangement, the admitted and excluded evidence, when taken in the light most favorable to plaintiff, does not compel this conclusion. "The effect of a part payment with respect to the transfer of title depends primarily on the terms of the contract and the intention of the parties, and also whether, as between the parties, anything still remains to be done with reference to the subject matter of the sale." 77 C.J.S. Sales § 266b. "Property may be delivered with the understanding that title thereto shall not pass until the performance of some condition, and such understanding or intention is given effect as between the parties." 46 Am.Jur., Sales § 433, p. 603. With reference to cash sales, see Wilson v. Commercial Finance Co., 239 N.C. 349, 79 S.E.2d 908, and decisions and authorities cited.

If Auto Exchange, Inc., was the owner of the 1952 Chevrolet on May 12, 1958, the view most favorable to plaintiff, we are confronted with this question: Was Speight, at the time of the wreck on May 12, 1958, actually using the 1952 Chevrolet with the permission of Auto Exchange, Inc.? If not, the liability of Speight for the operation thereof was not covered by the policy issued by Globe.

Boyette's ultimatum to Speight was that, not later than Saturday, May 10, 1958, Speight was to either pay for the car or deliver it to the place of business of Auto Exchange, Inc. Speight failed to do either.

The burden of showing that the actual use of the car by Speight on May 12, 1958, was with the permission of Auto Exchange, Inc., was on plaintiff. In Hawley v. Indemnity Insurance Co., 257 N.C. 381, 126 S.E.2d 161, the policy definition of "insured" included any person using the described motor vehicle, "provided the actual use of the automobile is by the named insured * * * or with the permission" of the named insured. Concluding a full discussion, Moore, J., for this Court, said: "Furthermore, the policy in the instant case uses the term ``actual use' in reference to permission granted. In our opinion this term confines the coverage to situations where the use made of the vehicle at the time of the accident is within the scope of the permission granted."

The conclusion reached is that Boyette's testimony does not show the actual operation of the car by Speight on Monday, May 12, 1958, was with the permission of Auto Exchange, Inc. Nor does it show that Speight's operation thereof on May 12, 1958, was necessary or incidental to the operation of the automobile sales agency of Auto Exchange, Inc. On the contrary, the only reasonable inference to be drawn therefrom is that Speight had no permission to use the car after the Saturday on which he was obligated either to pay therefor or to surrender possession thereof to Auto Exchange, Inc.

The conclusion reached is that the admitted and excluded testimony, when considered in the light most favorable to plaintiff, was not sufficient to withstand defendant's motion for judgment of nonsuit, and that the judgment of nonsuit should be and is affirmed.

Affirmed.

MOORE, J., not sitting.