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Bangert v. Emmco Ins. Co.





Appeal by defendants from the Circuit Court of Macoupin county; the Hon. L.E. WILHITE, Judge, presiding. Heard in this court at the October term, 1952. Reversed as to the defendant-appellant, Emmco Insurance Company. Reversed and remanded, with directions, as to defendant-appellant, Associates Discount Corporation. Opinion filed January 29, 1953. Released for publication February 26, 1953.


This is an appeal from a judgment for $1,500 entered by the court below on a jury verdict in a case brought by plaintiff-appellee Bangert against defendants-appellants Emmco Insurance Company and Associates Discount Corporation. We shall refer to the parties Bangert, Emmco and Associates as plaintiff and defendants, respectively, hereinafter.

Plaintiff's amended complaint was for a declaratory judgment arising out of the purchase of an automobile on a conditional sales contract. After alleging the facts detailed below respecting the purchase of, and the subsequent damage to the vehicle in a collision, plaintiff alleged that defendants conspired to deny him his equitable interest in the car and the policy of insurance thereon by disposing of the car without his knowledge or consent, and prayed for a judgment declaring the rights and liabilities of the parties and further prayed for money damage.

Associates answered, admitting the purchase of the vehicle by plaintiff and the other main facts of the later transactions, but set up a conditional sales contract of which it alleged it was assignee, as a defense to plaintiff's action. Associates further counterclaimed for the unpaid balance due on the contract. Emmco's answer admitted the adjustment on the insurance policy with Associates and the other main facts of the transaction, but denied liability to plaintiff. No declaratory judgment was ever entered but judgment was entered on a jury verdict for money damages in the above sum and this appeal resulted.

The evidence may be briefly summarized. Bangert purchased a new Frazier automobile from Edwards Motor Sales, Inc. for $3,318 on April 2, 1948. He also bought collision insurance from Emmco with the named insureds on the policy being Associate Investment Company and its subsidiaries, of which Associates Discount is one, as their interest may appear. After Bangert's trade-in had been deducted and the finance and insurance charges added, the balance due on the vehicle was $2,290.80, which was secured by a conditional sales contract. The balance on the contract was to be paid by Bangert in 24 payments. The same day Edwards assigned Bangert's contract with it to Associates, and thereafter Bangert made 11 payments to Associates, through March 1949.

On March 26, 1949 the car was greatly damaged in an accident, if not demolished. Bangert made no further payments and the unpaid balance on the contract as of the date of the accident and the time of trial was $1,244.10.

Bangert testified, over Associates objection, that the car had a fair cash market value of $2,600 in March 1949. The testimony of car dealers and repair men placed the fair cash market value of the car at from $1,200 to about $1,700, and the repair costs at $883.

On June 24, 1949 Associates repossessed the damaged vehicle, settled with Emmco for $856.50 on July 22, 1949, and received $118.86 from the sale of the salvage. Both of these sums were credited on Bangert's indebtedness with Associates.

Defendants' motions for directed verdicts at the close of all the evidence were denied, the jury rendered a verdict for plaintiff in the amount of $1,500, and found the plaintiff not guilty on Associates' counterclaim. The court denied the defendants' motions in arrest of judgment and for judgment n.o.v., or in the alternative for a new trial. Judgment was entered against both Emmco and Associates on both verdicts. From the judgment for plaintiff in the sum of $1,500 this appeal is taken. No appeal was taken from the judgment on the jury verdict as against Associates on the counterclaim, and we need not further consider that aspect of the case.

Plaintiff's position is that the defendants committed an actionable wrong towards the plaintiff in disposing of the vehicle and settling the insurance claim without regard to, or remuneration for, the equity that the plaintiff had in the automobile or the insurance policy at the time of the collision that damaged the car, in that the defendants settled for the repair costs of the vehicle although the vehicle was in fact a total loss, and hence that the fair cash market value thereof should have been paid under the insurance policy.

The insurance policy issued by Emmco was a collision and comprehensive type of policy. By it Emmco agreed to pay for the loss of or damage to the automobile. Emmco's liability for loss was limited to the actual cash value of the automobile less a deductible of $50. The named insured on the policy was Associates Investment Company and its subsidiaries. The evidence showed that Associates Discount Corporation was such a subsidiary. The plaintiff Bangert was denominated in the insurance policy as "purchaser" and following his name and the name of the named insured the phrase "as their interests may appear" appeared on the policy admitted in evidence.

The conditional sales contract executed between Bangert and Edwards which was later assigned to Associates, provided:

"Title to said motor vehicle shall remain in said seller or his assignee until this contract is fully performed. The rights and obligations of the respective parties hereto are as set forth herein and in the `Statement of Additional Covenants of the Buyer'. . . ., (which read, in part)

"Title to said motor vehicle shall remain in said seller or his assignee until this contract is fully performed by me . . . I agree, however, to deliver said motor vehicle to the owner of this contract upon his request and if the owner of this contract shall feel insecure or believe said motor vehicle will be lost to him or damaged by reason of my continuing in possession thereof, the owner of this contract may take possession of said motor vehicle without notice or demand and with or without process of law, regardless of whether I am in default hereunder or not. But if I am not in default under this contract at the time the owner hereof comes into ...

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