Godwin v. HARLEYSVILLE MUTUAL CASUALTY COMPANY

125 S.E.2d 23 (1962)

256 N.C. 730

James Linus GODWIN v. HARLEYSVILLE MUTUAL CASUALTY COMPANY.

No. 454.

Supreme Court of North Carolina.

April 18, 1962.

*24 Ernest H. Morton, Jr., Albemarle, for plaintiff appellant.

Carpenter, Webb & Golding, Charlotte, for defendant appellee.

PER CURIAM.

Plaintiff's evidence, consisting principally of Hinson's testimony, tends to show Hinson purchased the 1953 Mercury from Brewer on December 18, 1958, at the agreed price of $575.00, payable $150.00 cash and the balance in monthly installments either for twelve months or eighteen months; that Hinson then paid the $150.00 and obtained immediate possession; that, on December 19, 1958, Hinson, who was then eighteen years of age, and also his mother, signed a conditional sales contract as purchaser of the 1953 Mercury, but, pending final arrangements as to financing the unpaid balance, the number and amount of the installment payments were not then inserted; that Hinson, on December 19, 1958, also signed as purchaser an application for a certificate of title; that Hinson had the exclusive possession and use of the 1953 Mercury from December 18, 1958, until the wreck on December 24, 1958, and continued to use it thereafter; and that, in response to inquiry by the investigating officer on the occasion of the wreck, Hinson asserted his ownership of the 1953 Mercury.

Judge Gwyn was of opinion, and we agree, that, notwithstanding the precise number and amount of the installments covering the balance of the purchase price had not been determined, all the essential elements of the sale by Brewer to Hinson had been completed, and on December 24, 1958, when plaintiff (Hinson's passenger) was injured, Hinson, not Brewer, was the owner as well as the operator of the 1953 Mercury.

*25 Defendant's liability, if any, depends upon the provisions of the policy issued by it to Brewer. Hence, plaintiff's assignment of error directed to the court's exclusion of Hinson's testimony that Brewer told him, in substance, that Hinson would be driving on his (Brewer's) insurance until he procured insurance for Hinson, is without merit.

It is noted that Hinson was the sole defendant in plaintiff's said prior action.

Since plaintiff's evidence is insufficient to support a finding that Brewer was the owner of the 1953 Mercury on December 24, 1958, it is insufficient to support a recovery by plaintiff under the provisions of the garage liability insurance policy issued by defendant to Brewer. Hence, the judgment of involuntary nonsuit is affirmed.

Affirmed.