APPEAL from the Circuit Court of Du Page County; the Hon.
EDWIN L. DOUGLAS, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This is a suit to determine which of two insurance companies was the primary insurer of an automobile at the time of an accident.
In the early morning hours of Sunday, October 5, 1975, Scott Taylor and Kathleen Taylor were killed and Edward Van Poolen, Jr., was seriously injured when struck by an automobile operated by Donald Wittler. John Taylor, individually and as administrator of the estates of the Taylor children, and Edward Van Poolen, on his own behalf, filed lawsuits for damages against Donald Wittler. Country Mutual Insurance Co. (hereinafter Country Mutual) which had issued an automobile liability insurance policy to Wittler, tendered the defense of the damage actions to Aetna Life and Casualty Insurance Co. (hereinafter Aetna) on the theory that John Tiberi, Aetna's insured, was the owner of the auto operated by Wittler at the time of the occurrence and that Aetna's policy provided primary coverage on the auto and Country Mutual's policy was merely excess. When the tender offer was refused by Aetna, Country Mutual filed a declaratory judgment action, seeking to have the court declare the applicability of the respective policies. The trial court held that Wittler was the owner of the auto at the time of the accident and that, therefore, Aetna's policy did not provide coverage at the time of the accident. John Taylor and Country Mutual have appealed.
All parties agree that the sole determinative issue in this case is whether Tiberi or Wittler was the owner of the car at the time of the October 5 accident.
Prior to October 4, 1975, John Tiberi was the owner of the 1970 Ambassador station wagon in question. He had agreed to sell the car to Donald Wittler, who owned and operated the barber shop in which both men worked. The car was to be a down payment for Tiberi's purchase of the barber shop from Wittler. Both Tiberi and Wittler testified that on October 4 they discussed Wittler's using the station wagon to move some personal possessions. The decision was then made to transfer the station wagon on that day. According to Tiberi he brought the certificate of title into the shop, signed it, and left it on Wittler's back counter. Wittler acknowledged that Tiberi placed the certificate on the counter and indicated that he had seen it there but stated that he didn't know if it was signed or not. The parties attempted to reach a notary in order to notarize the change of title but were unsuccessful in doing so. Wittler gave Tiberi $1 for the car, in Tiberi's words, "to make it legal." Tiberi gave Wittler the keys, and Wittler took possession of the station wagon after work. Wittler's testimony at trial included the following exchange.
"Q. So, as far as you were concerned, that car was yours on Saturday, October 4th, isn't that correct?
Because Wittler stated that he was in a hurry, Tiberi left some of his possessions in the station wagon and also left the license plates on it. Wittler said that he would return the possessions and change the plates the next morning, October 5. Before this was done, Wittler and the car were involved in the accident in question. Tiberi's signature on the title was not notarized until Tuesday, October 7, 1975, and the barber shop was not transferred to Tiberi until late October or November of that year.
The evidence with regard to what occurred after the accident on October 5th reflects a number of apparent contradictions involving, inter alia, a clearly improper attempt by Tiberi's insurance agent to misrepresent the facts to various investigators. We will not discuss these later events in detail because they do not directly affect whether the auto changed hands on October 4. That Tiberi's insurance agent and perhaps others lied in an attempt to lead others to believe that the title had been notarized on October 4 does not mean that ownership did not, in fact, change on that day, and the key as to whether the transfer occurred on the 4th is what happened on or before the 4th.
Appellants contend that the trial court erroneously decided that ownership of the automobile on October 4 was dependent primarily on the intention of Tiberi and Wittler on that date, and that even if the intention of the parties was determinative on the issue of ownership, the trial court's decision that the intention was to pass ownership on the 4th was against the manifest weight of the evidence.
Appellants argue that section 3-112(e) of the Motor Vehicle Act and not the intention of the parties is determinative of when ownership passes. This section provides:
"Except as provided in Section 3-113 and as between the parties a transfer by an owner is not effective until the provisions of this Section and Section 3-115 have been complied with; however, an owner who has delivered possession of the vehicle to the transferee and has complied with the provisions of this Section and Section 3-115 requiring action by him is not liable as owner for any damages thereafter resulting from operation of the vehicle." (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 3-112(e).)
Appellant argues that this section had not been complied with and that therefore the previous owner was still liable as of October 5, 1975.
Appellee contends that section 3-312(e) is not controlling in this case and claims that ownership of the vehicle passes to the buyer on delivery unless otherwise agreed. ...