Younts v. State Farm Mutual Automobile Insurance , 13 N.C. App. 426 ( 1972 )

BROCK, Judge.

Plaintiff did not undertake to offer into evidence a certified copy of the motor vehicle title certificate to establish ownership of the 1953 Oldsmobile by Myers. Therefore, according to this record, it is not known in whose name the vehicle was registered. If it was registered in Myers’ name, obviously it should have been introduced as an idicia of ownership. If it was not registered in Myers’ name, it should have been introduced to show that it was not and thereby establish grounds for explanatory evidence.

At the final pre-trial conference, plaintiff announced that Donald Joe Myers and Mrs. Donald Joe Myers were witnesses, and stipulated that all witnesses were available and that the case was1 ready for trial. However, plaintiff did not call Myers or Myers’ wife as a witness to testify about a purchase of the 1953 Oldsmobile or the location of the title certificate therefor.

The only evidence offered by plaintiff concerning ownership of the 1953 Oldsmobile was the testimony of one Billy Joe Wright. Wright undertook to testify that he owned the 1953 Oldsmobile at one time; that he sold it to one Arthur Lee Charles; that it was financed for Charles by Lexington State Bank; that Lexington State Bank repossessed the car from Charles; and that Lexington State Bank sold the car to Myers. This testimony was not allowed before the jury, and this exclusion of evidence by the trial judge constituted the crux of plaintiff’s appeal.

We think the trial judge was correct in excluding the tendered evidence. Plaintiff may have been able to make the evidence competent by laying the proper foundation which showed the need of an explanation of the transaction, but she has not done so. As noted above, so far as this record discloses the vehicle was registered in Myers’ name with the Department of Motor Vehicles and no such explanation was necessary. Additionally, we note that the tendered testimony does not sufficiently identify the vehicle described by the witness as the vehicle described in defendant’s contract of insurance.

We do not wish to be understood as holding that the only way to prove ownership of a motor vehicle is by a certificate of title which has been properly registered with the Department of Motor Vehicles. An innocent third party should not be required to suffer merely because the purchaser of a motor vehicle may have failed to comply with the provisions of G.S. 20-72. However, as in most instances, plaintiff had the burden of proof and we hold that she failed to carry her burden sufficiently to submit the case to the jury.

Affirmed.

Judge Graham concurs. Judge Vaughn dissents.