Kane v. Employers Liability Assurance Corp., 252 F.2d 48

Kane v. Employers Liability Assurance Corp.

252 F.2d 48 | 6th Cir. | 1958

OPINION

Per CURIAM.

This is an appeal from a declaratory judgment holding that a liability insurance policy issued to Earl Schott Inc., did not obligate the insurer with respect to claims against Norman Stephen Sr., or Norman Stephen Jr., growing out of a collision on June 12, 1955, in which an automobile was involved which the latter was driving. The judgment was rendered upon stipulated facts.

Ean Schott, Inc., w'as an automobile dealer, and at the time of the collision the Ohio certificate of title to the vehicle in question was in Schott’s name. A sale of the car to Norman Stephen, Sr., had been negotiated, however, and Schott had delivered possession of it to him. Stephen had made a small down-payment toward the purchase price, and arrangements had been made for extension of credit on the balance. Stephen had signed a note and chattel mortgage.

We perceive no error in the judgment of the district court. It appears that under Ohio law “ownership” of the automobile was in Earl Schott, Inc. Garlick v. McFarland, 1953, 159 Oh St 539, 50 O. O. 445, 113 N. E. (2d) 92; Mielke v. Leeberson, 1948, 150 Oh St 528, 38 O. O. 352, *11283 N. E. (2d), 209, 7 A. L. R. (2d), 1342; cf. Workman v. Republic Mut. Ins. Co, 1944. 144 Oh St 37, 28 O. O. 584, 56 N. E. (2d), 190. It is clear, however, that at the time of the collision Norman Stephen, Jr., was not operating the automobile “in connection with” the business purpose of Earl Schott, Inc. The automobile dealer had not given Norman Stephen, Sr., possession of the car for the purpose of trying to sell it to him. The sale had already been fully agreed upon and all of its terms settled.

The judgment is affirmed.