THE STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A CORPORATION, APPELLANT, V. LORAN DRAWBAUGH, APPELLEE.
No. 33547
Supreme Court of Nebraska
July 23, 1954
65 N. W. 2d 542
Also in Ralph v. MacMarr Stores, 103 Mont. 421, 62 P. 2d 1285: “*** A customer in a store is not bound to use the same degree of care to avoid obstacles to safety as is a pedestrian on a sidewalk; he is entitled to assume the premises are reasonably safe; and the question of plaintiff‘s due care was one for the jury.’ (Robinson v. F. W. Woolworth Co., 80 Mont. 431, 261 P. 253.)”
We think the record presents a case for a jury both as to the question of appellant‘s negligence and appellee‘s contributory negligence. In view thereof the trial court was correct in granting the appellee a new trial.
AFFIRMED.
Kirkpatrick & Dougherty, for appellant.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
MESSMORE, J.
This is an action in replevin brought by the State Farm Mutual Automobile Insurance Company, plaintiff, against Loran Drawbaugh, defendant, in the district court for Butler County to obtain possession of a 1950 Chevrolet automobile.
The plaintiff alleged in its petition and affidavit filed on February 27, 1952, that the plaintiff had been, since the 27th day of January 1951, the owner of one 1950 Chevrolet automobile, describing it, and was entitled to immediate possession thereof. By an amended petition filed on September 6, 1952, shortly before trial, the plaintiff alleged ownership of the automobile and that it was the holder of the legal title thereto and entitled to immediate possession thereof.
The defendant‘s answer admitted that plaintiff was engaged in the general writing of fire and theft automobile insurance and licensed to transact business in this state; denied generally all other allegations of the plaintiff‘s petition, and further alleged that the defendant was the sole owner of the automobile; and prayed that the plaintiff‘s petition be dismissed, that the automobile be returned to the defendant, or upon failure to return it, the defendant have judgment for the value of the pos-
At the close of the evidence both parties made motions for directed verdict and stipulated that the court should decide the issues presented. The trial court overruled the motion of the plaintiff and sustained the motion of the defendant, and found for the defendant because the plaintiff did not sustain the burden of proving that it had ownership or title to the automobile in question on the day it filed its action in replevin, and that the plaintiff should pay to the defendant the stipulated value of the car plus legal interest from the date the car was taken under the writ of replevin. The court entered judgment in favor of the defendant and against the plaintiff in the sum of $1,250, with interest from the 28th day of February 1952, until paid, and costs of the action.
The car involved was purchased by Clarence Anderson from the Central Chevrolet Company at Grand Island. He received a manufacturer‘s certificate. Certificate of title was issued by the county clerk of Hall County to Clarence Anderson upon a proper application which conformed to the requirements of
There is no question but that the automobile found in
The car was taken under a writ of replevin on February 27, 1952, and was appraised in the amount of $1,250. After the car was replevied it was sold to a dealer in Fremont and a certificate of title given for it. The record shows an application for certificate of title made by the plaintiff to the county clerk of Lancaster County on March 24, 1952, or nearly 30 days from the time the plaintiff filed the replevin action.
There are certain fundamental rules which govern actions in replevin which we deem advisable to set out at this point.
The burden is on the plaintiff in a replevin action to prove by a preponderance of the evidence that at the time of the commencement of the action he was the owner of the property sought to be replevied, that he was entitled to the immediate possession of it, and that the defendant wrongfully detained it. See, Stickell v. Haggerty, 158 Neb. 34, 62 N. W. 2d 107; Fitzsimons v. Frey, 153 Neb. 124, 43 N. W. 2d 531.
The burden is on the plaintiff in replevin to establish facts necessary for him to recover, and these must be shown to have existed at the time the action was commenced. See, Alliance Loan & Investment Co. v. Morgan, 154 Neb. 745, 49 N. W. 2d 593; Bank of Keystone v. Kayton, 155 Neb. 79, 50 N. W. 2d 511.
Any fact that transpires after the date of the institution of a replevin case is immaterial in the consideration and determination of the merits of the case. Alliance Loan & Investment Co. v. Morgan, supra.
The law requires that a plaintiff in a replevin case must recover on the strength of his right in or to the property and not upon any weakness of the interest of the defendant therein. See, Alliance Loan & Investment Co. v.Morgan, supra; Bank of Keystone v. Kayton, supra.
An allegation of general ownership in an action in replevin is not supported by proof of special ownership. See Robinson v. Kilpatrick-Koch Dry Goods Co., 50 Neb. 795, 70 N. W. 378.
A plaintiff in replevin must prove the title as he pleads it. See, Suckstorf v. Butterfield, 54 Neb. 757, 74 N. W. 1076. See, also, Wilson v. City Nat. Bank, 51 Neb. 87, 70 N. W. 501.
The principal questions to be determined are: (1) Is the evidence sufficient to sustain the plaintiff‘s allegation of ownership as pleaded in the plaintiff‘s petition when the replevin action was instituted; and (2) did title to the automobile pass to the plaintiff as assignee upon the delivery of the certificate of title so assigned?
This appeal involves the act relating to title and transfers of motor vehicles which act is found in Chapter 60, article 1, R. R. S. 1943,
It is apparent by the changes made in sections 60-310 and 60-325, Comp. St. 1929, it was the intention of the Legislature to make certain in the act relating to titles and transfers of motor vehicles, the only means whereby transfers and titles to motor vehicles could be made.
The pertinent sections of the statutes involved in this appeal are as follows:
The purpose of the act relating to transfers and titles to motor vehicles is to provide a means of identifying motor vehicles, to ascertain the owners thereof, to prevent theft of motor vehicles, and to prevent fraud. See 60 C. J. S., Motor Vehicles, § 40, p. 160.
It is a fundamental rule of statutory construction that statutes that relate to the same matter or subject should be construed together for the purpose of learning and giving effect to the legislative intention.
Statutes in pari materia must be construed together, and the legislative intention apparent from the whole body of the enactment should be carried into effect. See Dawson County v. Clark, 58 Neb. 756, 79 N. W. 822.
Statutes in pari materia should be taken together and construed as if they were one enactment, and, if possible, effect given to every provision. See McQuiston v. Griffith, 128 Neb. 260, 258 N. W. 553.
In determining this appeal we consider and construe the above sections of the statute in pari materia.
We deem it advisable to cite Loyal‘s Auto Exchange, Inc. v. Munch, 153 Neb. 628, 45 N. W. 2d 913. This case determined the effect of the sections of the statute herein involved and the meaning thereof as the same relate to transfers and titles to motor vehicles. This was a replevin action. The plaintiff received an assignment of a certificate of title and a certificate of title had thereafter been issued to the plaintiff. The intervener had possession of the automobile as a purchaser, but never received the assignment of the certificate of title. We there held that the plaintiff, having obtained a certificate of title by complying with the statutory require-
The court further said: “A purchaser who receives possession of an automobile without obtaining the certificate of title thereto, as required by our statute, acquires no title or ownership therein.”
In Snyder v. Lincoln, 156 Neb. 190, 55 N. W. 2d 614, this court held: “A certificate of title to a motor vehicle, issued pursuant to
In Garbark v. Newman, 155 Neb. 188, 51 N. W. 2d 315, we held that a certificate of title of a motor vehicle is generally conclusive evidence in this state of the ownership of the vehicle. See, also, Loyal‘s Auto Exchange, Inc. v. Munch, supra.
In Loyal‘s Auto Exchange, Inc. v. Munch, supra, we quoted from Anderson v. Arnold-Strong Motor Co., 229 Mo. App. 1170, 88 S. W. 2d 419, as follows: “It is well settled that unless the certificate is assigned and passed to the buyer of the motor vehicle at the time of its de-
Suffice it is to say that the above-cited case has no application here. The Missouri statute with reference to transfers and titles to motor vehicles is not like the Nebraska act governing such subject.
The plaintiff contends it was under no obligation to obtain a certificate of title or a new title until it obtained possession of the automobile in question, or after the action to replevin it was commenced, and that it is so provided in
The plaintiff alleged in its petition that at the time the replevin action was instituted it was the owner of the 1950 Chevrolet automobile in question and entitled to the immediate possession thereof. The word “owner” means one who has the legal title or rightful title, whether the possessor or not. See Webster‘s New International Dictionary (2d ed.), Unabridged, p. 1745.
The word “own” means to have a good legal title; to hold as property; to have a legal or rightful title to; to
Considering the sections of the statute above set out in pari materia, the authorities heretofore cited, and the record, we conclude that the plaintiff was not the owner of the automobile in question at the time it instituted this replevin action, and that the plaintiff failed in its burden of proof to establish its right of possession of the automobile in question. The trial court did not err as contended for by the plaintiff.
For the reasons given herein, the judgment of the district court is affirmed, the plaintiff to pay all costs.
AFFIRMED.
CHAPPELL, J., dissents.
SIMMONS, C. J.
I dissent.
A traded his car to B, a licensed dealer. A retained possession of the car. A made an incomplete assignment of his certificate and delivered it with a power of attorney to B to complete the assignment. Apparently it was never actually done. We held in Bank of Keystone v. Kayton, 155 Neb. 79, 50 N. W. 2d 511, that title passed from A to B.
Here C assigned his certificate and delivered it to D, together with the keys to the car. The car being stolen and its whereabouts unknown, it could not be delivered. The court holds that title did not pass from C to D. The only difference between the two cases is that B was a licensed dealer, and D was an insurer paying a contract loss. The court holds that these results are in accord with the “legislative intention.” I disagree. As I see it, these two decisions can only be reconciled by reading into the provision of
A year after the filing of the opinion in In re Estate of Nielsen, supra, the Legislature in the 1939 act amended section 60-325, Comp. St., 1929, by striking out the above-quoted provision that title did not pass. Laws 1939, c. 81, § 15, p. 348. The court in Loyal‘s Auto Exchange, Inc. v. Munch, 153 Neb. 628, 45 N. W. 2d 913, quoted the provision of section 60-325, Comp. St., 1929, in its quote from In re Estate of Wroth, supra. The court did not point out there that the provision quoted had been repealed. The court now quotes
The Legislature not only repealed the provision prohibiting title passing but put no comparable provision in the 1939 act.
In Hurley v. Brotherhood of R. R. Trainmen, 147 Neb. 781, 25 N. W. 2d 29, we quoted, with approval, this rule from Campbell v. Youngson, 80 Neb. 322, 114 N. W. 415: “In considering an amendatory or substituted
The court does not explain the effect of the amendment repealing the proviso that title shall not pass, but ignores it.
Not only did the Legislature strike out the above language of the old law, but it made certain positive provisions that show a contrary intent to that which the court now announces.
It provided in
Again in
The Legislature further provided in
This obviously relates to a transfer of ownership. The court now holds that ownership does not pass until a new certificate of title is had by the transferee; and that the transferor remains the owner until a new certificate of title is secured by the transferee (or for him if the transferor is a dealer), notwithstanding the fact that the transferor has delivered possession and assigned certificate of title to the transferee. The ownership is made to depend on, not what the seller does, but what the purchaser does after purchase, full payment, and delivery to him of the motor vehicle. Suppose the transferee does not apply within the three-day period, or never does apply for a new certificate of title. Under the court‘s holding, ownership remains in the transferor. Such the court holds to be the Legislature‘s intention. I would hold that the new certificate is evidence of title which the buyer had previously acquired by virtue of the assignment and transfer to him of the original certificate. The failure to apply for the new certificate within the period does not divest the rights of the purchaser. See, Crawford v. General Exchange Ins. Corporation (Mo. App.), 119 S. W. 2d 458; Wilkison v. Grugett, 223 Mo. App. 889, 20 S. W. 2d 936.
The court says that statutes in pari materia must be construed together. I agree. What statutes do the court “construe together“? Apparently reference is to the provision that licensed dealers need not apply for certificates of title for motor vehicles in stock or acquired for stock purposes (
I submit that the fact that when selling, the dealer must get the certificate for his buyer and, in the other instance, the buyer must get it himself “within three days” does not show a legislative intent that title passes at once in the first instance and does not pass in the second instance until a new certificate is issued in lieu of the assigned certificate. Had the Legislature so intended, it could have said so, as it did in the earlier act, which was repealed when this act was passed, as shown above. The court in effect now puts the repealed provision back into the act.
I am mindful of the provision of
This section taken out of context and standing alone presents difficulties. When put into chronological context, and analyzed in relation to the legislative plan as evidenced by the whole act, the difficulties disappear. For the purpose of this analysis, I go to the original act, Laws 1939, c. 81, p. 328.
The act was a comprehensive one, to apply to motor vehicles required to be registered (with exceptions not important here). Section 1, page 329. By its title, it is an act relating to the ownership of motor vehicles “providing manner of originating title to motor vehicles by manufacturers and importers” and “prohibiting sale or transfer of motor vehicles unless accompanied by assignment of certificate of title.” (Emphasis supplied.) There, in the title to the act, is a legislative construction providing that on a sale or transfer, it be “accompanied by assignment of certificate of title.” Nothing is said about a sale being prohibited unless and until a new certificate is issued to the purchaser.
Section 2, page 329 (now as amended
The Legislature clearly provided that new motor ve-
Consistent with that purpose, it was provided in section 5, page 330 (now
I would construe the provisions of
That section was also the law when the court decided Loyal‘s Auto. Exchange, Inc. v. Munch, supra. In that case plaintiff had received an assignment of a certificate of title and a certificate of title had thereafter been issued to plaintiff. The intervener had possession without a certificate. The question here presented was not the issue in the Loyal‘s Auto Exchange case. However, there the court approved the following from Anderson v. Arnold-Strong Motor Co., 229 Mo. App. 1170, 88 S. W. 2d 419: “It is well settled that unless the certificate is assigned and passed to the buyer of the motor vehicle at the time of its delivery, the sale is absolutely void and no title to the vehicle passes.”
Again from the decision in In re Estate of Wroth, supra, the court quoted as “particularly applicable” the following: “No title passes unless certificate is assigned buyer at time of delivering motor vehicle * * *.” While these rules may come from other states where the legislation is not like ours, as the court now points out, the fact remains that this court quoted those rules in construing our statute.
The court refers to our decision in Snyder v. Lincoln, 156 Neb. 190, 55 N. W. 2d 614.
The court quotes: “A certificate of title is essential
Not quoted by the court are these two sentences which precede the above quote. Referring to the Loyal‘s Auto Exchange case we said: “We did not say that the possession of a certificate of title was an absolute muniment of title. A thief with a certificate of title to a stolen automobile does not divest the owner of his right to take it wherever he can find it.”
This court is committed to the doctrine that the Uniform Acts are to be construed so as to make uniform the laws of those states which have enacted similar legislation. Bainter v. Appel, 124 Neb. 40, 245 N. W. 16; Behrens v. State, 140 Neb. 671, 1 N. W. 2d 289; Krepcik v. Interstate Transit Lines, 154 Neb. 671, 48 N. W. 2d 839.
I do not contend that our act has been classified as a Uniform Act, yet the reason for the rule applies here. At least in Florida (1 Florida Statutes. 1953, § 319.22(1), p. 1198), Idaho (9 Idaho Code, § 49-404, p. 51), and Ohio (4A Page‘s Ohio General Code, § 6290-4, p. 590), legislation similar to our
In testing the constitutionality of a part of this provision in the Loyal‘s Auto Exchange case, the court relied heavily upon decisions of the Ohio courts. In spite of the fact that the Supreme Court of Ohio has spoken on the matter, since our opinion in the Loyal‘s Auto Exchange case, the court again relies here on a decision of an intermediate appeals court of Ohio.
In Garlick v. McFarland, 159 Ohio St. 539, 113 N. E. 2d 92, decided June 3, 1953, the court quotes their stat-
The court there reviewed their previous decisions. They will not be referred to or discussed here, as they are available in the cited case.
After analyzing its statutes and decisions, the Supreme Court of Ohio announced the rule: “* * * where endorsement and delivery of a certificate of title for an automobile are made, title passes even though there is a failure on the part of the recipient to secure the issuance of a new certificate in his name.” See, also, Johnson v. Bennion, 70 Idaho 33, 211 P. 2d 148.
The above quote is this case. If this transaction had occurred in Ohio, plaintiff would be held to be the owner of the automobile involved here. Occurring in Nebraska under exactly the same circumstances and same statutes, plaintiff is held not to be the owner of the automobile. This is a commercial transaction. It has none of the elements of a local question where there should be a local policy. The court contributes not to uniformity, but to confusion. Consistent with my analysis of the statute; our decision in Bank of Keystone v. Kayton, supra; and in the interest of uniform construction of laws dealing with commercial problems, I would follow the Supreme Court of Ohio and hold that title passed here to the plaintiff and that its proof sustained its allegation of ownership. I would reverse the judgment and remand the cause with directions to enter judgment for the plaintiff.
I am authorized to say that YEAGER, J., joins in this dissent.