McClary v. Concord Avenue Motors

DEVINE, J.

Summary judgment was granted in favor of defendant Concord Avenue Motors, and plaintiff appeals. Plaintiff alleges in her complaint that she was injured on September 15, 1959 by negligent driving of a Chevrolet automobile by defendant Kistner, and that Concord and Rose owned the Chevrolet and permitted Kistner to drive it.

Ownership of the vehicle is the only issue relevant to the summary judgment. The facts are stated below in a

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manner favorable to appellant from the summary judgment, wherever there was variance in the affidavits.

On September 14, 1959, the day before the accident, J. W. Chamblis and his son, Wesley Chamblis, agreed to purchase a Volkswagen from Concord. J. W. Chamblis owned the Chevrolet which was in the accident the next day. He agreed' with Concord that he would turn over to Concord the Chevrolet as a down payment, and that Concord was to assume payments on the Chevrolet to General Motors Acceptance Corporation, the legal owner. He signed an authorization to Concord to pay off the legal owner. He endorsed the white slip and gave it to Concord. He did not have the pink slip in his possession, because it was held by General Motors Acceptance Corporation.

Whether possession of the Chevrolet was transferred to Concord is a subject upon which defendant’s affidavit is silent, and upon which Wesley Chamblis’ affidavit is vague and general, the allegation being that he had “divested himself of all interest in the said 1957 Chevrolet and relinquished the ownership interest of himself and his father, J. W. Chamblis, to the Concord Avenue Motors, through their duly authorized partner, Myron Rose.” We need not debate whether this includes transfer of possession, because counsel for respondent conceded, at oral argument, that possession by Concord was a triable issue.

Shortly after the authorization referred to above had been signed, Kistner told Concord that he wished to buy the Chevrolet directly from Chamblis, and that he could arrange the financing with Morthrift Plan; and Concord agreed to this arrangement. On September 16, 1959, the day after the accident, Morthrift picked up from Concord the authorization to pay GMAC.