#### YADKIN VALLEY MOTOR COMPANY, INC., and MRS. LILLIE MARTIN v. THE HOME INSURANCE COMPANY OF NEW YORK.

(Filed 15 October, 1941.)

1. Insurance § 44b: Automobiles § 4—

A certificate of title issued by the Department of Revenue some two months after the date in question is some evidence of title on the date in question when there is other evidence that application for the certificate was filled out by the dealer’s bookkeeper two months prior to its date of issuance and that the certificate dated title as of that date and not the date of issuance.

2. Insurance § 44b: Appeal and Error § 39—

Where, in an action on a policy of collision insurance, nonsuit is properly entered as to the dealer for want of evidence that the dealer had a lien on the automobile, defendant insurer’s exception to the admission of parol evidence as to the alleged conditional sales contract between plaintiff dealer and plaintiff purchaser becomes immaterial.

3. Chattel Mortgages § 1c—

A note signed by the purchaser to the dealer in which the purchaser agrees to pay a stipulated sum monthly for twelve months cannot be construed as a lien or mortgage in itself.

*1694. Evidence § 22—

In this action on a policy of automobile collision insurance, insurer defended solely on the ground that plaintiff insured was not the owner of the car. Held: Cross-examination of insured as to the previous ownership of the ear and previous wrecks involving the car and previous cancellations of insurance thereon was not germane to the controversy and was properly excluded, the rule that a party has the absolute right to cross-examine an adverse witness being limited to matters testified to in the examination-in-chief which are germane to the controversy.

5. Appeal and Error § 39—

The admission of certain testimony over objection cannot be held prejudicial when other evidence of the same import is admitted without objection.

6. Insurance § 50 — Charge construed as a whole held to fairly present insurer’s defense and exception to excerpt therefrom cannot be sustained.

In this action on an automobile collision policy insured defended solely on the ground that plaintiff was not the owner of the car but that in fact the car was owned by plaintiff’s brother and was refinanced in plaintiff’s name in order to obtain insurance. Insurer admitted the execution and delivery of the policy, that premiums thereon had been paid, and that the car was damaged by upset or collision. Insurer did not tender an issue relating to the validity of the policy, and the determinative issue submitted to the jury without objection was as to plaintiff’s ownership of the car. Held: An exception to an excerpt from the charge that insurer admitted that the policy was in full force and effect at the time of the collision cannot be sustained when the context of the charge from which this excerpt was taken is that notwithstanding that the policy was in full force and effect plaintiff insured could not recover unless she was the owner of the car.

7. Trial § 36—

A charge will be construed contextually as a whole, and appellant’s exception to an isolated portion of the charge cannot be sustained when such portion read contextually with the rest of the charge is not prejudicial.

8. Trial § 32—

If a party desires more specific instructions or fuller definitions of words or phrases used in the charge he must aptly tender prayer for special instructions.

Appeal by defendant from Phillips, J., and a jury, at June Term, 1941, of Wilkes.

No error.

This is a civil action to recover the sum of $500.00 under an insurance policy for damages to an automobile resulting from collision or upset. The defendant denied that the plaintiff was the unconditional and sole lawful owner of the automobile at the time the policy was issued and at the time of the loss or damage thereto. From the judgment upon the verdict in favor of plaintiff defendant appealed to the Supreme Court, and assigned errors.

*170Tie issues submitted to the jury and their answers thereto were as follows:

“1. Was the plaintiff, Mrs. Lillie Martin, the owner of that certain automobile described in the complaint on the 5th day of October, 1938, and the 11th day of October, 1938 ? Answer: ‘Yes.’

“2. What amount, if any, is the plaintiff, Mrs. Lillie Martin, entitled to recover from the defendant ? Answer: ‘$500.00.’ ”

The court below rendered judgment on the verdict. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

W. H. McBlwee and Hayes ■& Hayes for plaintiff.

John B. Jones and Helms & Mulliss for defendant.

ClakksoN, J.

At the close of plaintiff’s evidence and at the conclusion of all the evidence, defendant made motions for judgment as in case of nonsuit. O. S., 567. Upon the latter motion the court below sustained the motion as to Yadkin Valley Motor Co., Inc., and overruled the motion as to Mrs. Lillie Maz'tin. The exceptions and assignments of error made by defendant as to the court below overruling the motion for judgment as of nonsuit, as to Mrs. Lillie Martin, cannot be sustained. It does not appear in the record that plaintiff, the Yadkin Valley Motor Co., Inc., had a lien on the automobile in controversy. The question of parol evidence to establish a lien is hereafter considered.

Admissions by defendant: “The defendant admits: (1) That the policy sued upon was executed and delivered by the defendant. (2) That the premium on the policy sued upon was fully paid at the time the policy was issued and delivered. (3) That the automobile described in the policy and referred to in the complaint was damaged by collision or upset on or about 11 October, 1938. (4) That the Yadkin Valley Motor Co., Inc., is a corporation organized, existing and doing business under the laws of the State of North Carolina.”

The plaintiffs introduced in evidence insurance policy #3165487, dated 5 October, 1938, issued by the Home Insurance Company of New York covering one used Ford DeLuxe Coupe, Motor #4256460, 1938 model; said exhibit or policy being marked “Plaintiff’s Exhibit A.”

The plaintiffs introduced in evidence summons in the action, dated 2 January, 1939, served 9 January, 1939. The following is in the record: “Q. Mrs. Martin, how much do you owe the Yadkin Valley Motor Co., Inc., on that automobile? Ans.: $408.96. Court: She can testify to what she owes them. Q. Did you owe the same amount on October 11, 1938? Ans.: Yes, sir.”

*171The exhibit indicates that it is a note signed by Mrs. Lillie Martin to Yadkin Yalley Motor Co., Inc., for $408.96, dated 5 October, 1938, “Undersigned jointly and severally promise to pay to the order of Yadkin Yalley Motor Co., Inc., at the office of Commercial Credit Company, Charlotte, North Carolina, 12 monthly installments of Thirty-four and 08/100 Dollars — $34.08 each.” This note was transferred by the Yadkin Yalley Motor Co., Inc., to the Commercial Credit Company. The plaintiff, Yadkin Yalley Motor Company, Inc., having no lien on the automobile in question, nonsuit as to it was properly granted. There is no language in the note by which it could be construed as a lien or mortgage. The exceptions and assignments of error made by defendant on this aspect are immaterial, as the Yadkin Yalley Motor Co., Inc., is eliminated from the controversy. An attempt to establish a lost lien and defendant’s motion to nonsuit, which was allowed, made this aspect immaterial, therefore defendant’s exceptions and assignments of error cannot be sustained.

Mrs. Lillie Martin testified, in part: “My name is Mrs. Lillie Martin. I am one of the plaintiffs in this action. . . . On October 5, 1938, I owned a 1938 model Ford coupe. The paper which you hand me is the title to the car that I owned. (Plaintiffs offer in evidence certificate of title marked D. The defendant admits that the certificate of title was issued by the Department of Revenue of the State of North Carolina, but objects to the introduction of the certificate of title upon the ground that it was issued on December 5th, 1938, which was exactly two months after the date of the alleged purchase by the plaintiff and almost two months after the date of the collision.) This is my insurance policy; I got it through the mail. I owned the automobile described in the insurance policy on October 11, 1938. On that date it was wrecked. The reasonable market value of the automobile just prior to the time it was wrecked was $600.00, in my opinion. The reasonable market value of the automobile just after it was wrecked, in my opinion, was $50.00.”

The defendant contends that the questions involved are:

(1) Did the court err in admitting as evidence of ownership of the automobile the certificate of title issued approximately two months after the time of the purchase of and collision or upset to the automobile in question? Ye think not.

In the record, on cross-examination of Kenneth Brooks, by defendant (bookkeeper for the Yadkin Yalley Motor Co., Inc., on 5 October, 1938), he testified: “She signed the title that day. Q. She did sign the title? Ans.: Yes, sir. Q. And you sent off the application for the title that day? Ans.: I don’t remember the day the title was sent off. Q. Do you know why you didn’t get the certificate of title on that car until *172Dec. 5th? Ans.: No, sir. Q. Did you keep the application until after the wreck happened ? Ans.: I don’t remember the day the title was mailed off to the Department at Raleigh. Q. You attended to that yourself, she didn’t have anything to do with it? Ans.: No, sir; she did not. Q. Well, this is the certificate of title that you are talking about, Plaintiff’s Exhibit D, isn’t it ? Ans.: Yes, sir. Q. And it is dated December 5, 1938 ? Ans.: The day it is issued and the title is dated October 5, 1938.”

On the certificate of title is the following: “And that the applicant has stated under oath that said applicant is the owner of said motor vehicle and that it is subject to the following liens and none other: 2nd Lien — Amount—Kind—Date—Favor of. 1st Lien Amount $408.96— Kind C. S. C. — Date 10-5-38 — Favor of Yadkin Yalley Motor Co., Inc., North Wilkesboro, N. C.”

We think this was some evidence, the probative force was for the jury to determine, to sustain plaintiff’s contention that she was the owner of the car in question.

The evidence indicates that she made application on 5 October, 1938, but the Revenue Department did not issue the certificate until 5 December, 1938. This action was brought 2 January, 1939.

(2) Did the court err in permitting the plaintiff and her witnesses to prove by parol testimony the existence and contents of the allegedly lost conditional sale contract to Yadkin Yalley Motor Co., Inc., which company was not a named insured in the policy sued upon, and which company was nonsuited at the conclusion of all the evidence? We think not.

The question of parol evidence as to an alleged conditional sale contract, we think, has been eliminated from this controversy. The court below, on motion of defendant, sustained the motion to nonsuit the Yadkin Yalley Motor Co., Inc. This, on defendant’s motion, made this evidence immaterial.

In the record is the following: “Court: What I want to get in the record here is that you are stating if the jury should find from the evidence in this case .and by the greater weight that Mrs. Martin was the owner of that automobile in question on the 5th day of October, 1938, and on the 11th day of October, 1938, the sole owner with the exception of the outstanding lien to the Commercial Credit Company or the Yadkin Yalley Motor Co., Inc., that you are not contesting the payment of the policy, if the jury should find she is the owner of it on those dates. Attorney for defendant: No, sir, we are perfectly willing to pay our policyholders whatever we owe them, but we don’t want anybody else coming in. Attorney for plaintiff: As I understand it — he will pay the full amount of the policy and then the adjustment of the lien will be between Mrs. Martin and the Yadkin Yalley Motor Co., *173Inc. Court: No, sir, be said be would pay whatever tbe jury said. Attorney for defendant: I mean we will pay whatever we are liable for under tbe policy. Let’s get this stipulation in tbe record. Tbe defendant, Home Insurance Company, takes tbe position that under tbe policy introduced in tbe case of tbe Yadkin Yalley Motor Co., Inc., is not a named assured, and is not a party to tbe contract, that tbe named assureds are Commercial Credit Company and Mrs. Lillie Martin, and tbe liability, if any, of tbe defendant is to its named assureds only and that tbe Commercial Credit Company is asserting no claim under tbe policy. Court: You are also taking tbe position if there are any liens outstanding on this car that that is a matter between tbe lien-bolders and Mrs. Lillie Martin? Attorney for defendant: That is right, sir. Court: And that you are not interested in what their adjustment shall be of any loss of any as due under tbe policy ? Attorney for defendant: We don’t even get in that. We are not asking that tbe Commercial Credit Company or anybody else claim any liens or any part of it.”

(3) Did tbe court err in refusing to allow tbe defendant to cross-examine tbe plaintiff and her witnesses with reference to tbe ownership of and previous wrecks involving tbe automobile in question; and with reference to previous cancellations of insurance thereon by other companies? We think not.

(4) Did tbe court err in permitting a cross-examination of a witness for tbe defendant, which cross-examination tended to charge tbe witness with an attempt to defraud tbe plaintiff, and in refusing to allow tbe witness to explain on re-direct examination? We think not.

No issue was tendered by defendant to raise tbe questions complained of. Tbe only one not objected to was as to whether tbe plaintiff was tbe owner of tbe automobile.

“A party has tbe right to an opportunity to fairly and fully cross-examine a witness who has testified for tbe adverse party. This right, with respect to tbe subject of bis examination-in-cbief, is absolute and not merely a privilege. A denial of it is 'prejudicial and fatal error.’ ” Bank v. Motor Co., 216 N. C., 432 (434), and cases cited.

Tbe defendant cites tbe above cases, wherein tbe law is well settled, but tbe cross-examination must be germane to tbe controversy. In this case it was not.

Defendant contends that testimony as to tbe number of children Mrs. Martin bad was prejudicial. We cannot so bold. There was other evidence in tbe record, unobjected to, that she bad children.

(5) Did tbe court err in charging tbe jury that tbe defendant “admits that tbe policy was in full force and effect on tbe 11th day of October, 1938, tbe day of tbe alleged collision or upset of tbe car,” when tbe defendant bad not at any time admitted, and did not admit, that tbe *174policy was in full force and effect on tbe lltb day of October, 1938, tbe day of tbe alleged collision or upset of tbe car, but, on tbe contrary, bad denied tbat tbe policy was or bad been in full force and effect? We cannot so bold.

Tbe full charge on tbis aspect is as follows: “Now, gentlemen of tbe jury, tbe court charges you tbat tbe defendant admits tbe issuance of tbe policy in question, admits tbat it was issued on tbis car; admits tbat it was issued to Mrs. Lillie Martin as one of tbe beneficiaries or one of those entitled to recover under tbe policy; admits tbat tbe policy covers tbe actual cash value of tbe car less fifty dollars; admits that tbe.policy was in full force and effect on tbe lltb day of October, 1938, tbe day of tbe alleged collision or upset of tbe car; admits that tbe premiums on said policy bad been paid to tbe company and they bad received tbe same, and tbat tbe policy was in full force and effect on tbe date of tbe alleged collision, to-wit, on tbe lltb day of October, 1938. Now, gentlemen of tbe jury, those admissions having been made in tbe pleadings and in tbe evidence in tbe case and admissions of counsel, there arises then tbe question of whether or not tbis automobile on tbe 5th day of October, 1938, and tbe lltb day of October, 1938, tbe first date mentioned tbe date tbat tbe policy was issued and tbe second date mentioned tbe date of tbe alleged collision or upset of tbe car, whether or not she was the owner on those dates or not. If she was, gentlemen of tbe jury, then she is entitled to have you answer these issues in her favor as to tbe ownership of tbe car and also as to tbe damages tbat were sustained by reason of tbe collision or upset. If she was not tbe owner on those dates, then, gentlemen of tbe jury, she is not entitled to have you answer these issues in her favor because tbe court charges you if she was not tbe owner of tbis automobile on tbe date tbe policy was issued and was not tbe owner of tbe automobile on tbe date tbat tbe collision or upset occurred, if one did occur, then tbe court charges you, gentlemen of tbe jury, tbat she bad no insurable interest and tbat she was not tbe true owner of tbe car and would not be entitled to receive any of tbe benefits of tbis policy because she must have been under tbe terms of tbe policy tbe true owner of tbis automobile before- she could be entitled to receive tbe benefits of tbis policy, but if she was tbe true owner on these dates, then she is entitled to receive tbe benefits of tbis policy, it having been admitted tbat tbe policy was issued and premiums paid and tbe policy was in full force and effect on those dates.”

Taking tbe entire charge, we see no error. It is well settled tbat a charge must be considered contextually, and not disjointedly. Speas v. Bank, 188 N. C., 524; Milling Co. v. Highway Com., 190 N. C., 692; Marriner v. Mizzelle, 207 N. C., 34.

It is held in Braddy v. Pfaff, 210 N. C., 248 (headnote) : “Where it appears tbat tbe charge, when read contextually as a whole, was not *175prejudicial in its manner of stating tbe evidence and contentions of tbe parties, an exception, based upon detached portions thereof, will not be sustained.”

(6) Did tbe court err in failing to explain to tbe jury tbe law with reference to “ownership”; “unconditional and sole lawful ownership”; “misrepresentation and fraud”; “warranties”; or “corroborative evidence”? We think not.

In tbe .event tbe defendant desired fuller definitions or more specific instructions as to these phrases and words it was tbe defendant’s duty and privilege to tender to tbe court a prayer for instructions. Tbe defendant failed to do this and be cannot now take advantage of bis failure. S. v. Puckett, 211 N. C., 66; Arnold v. Trust Co., 218 N. C., 433.

There was no exception on the part of tbe defendant as to tbe issues and no issue was tendered as to tbe validity of tbe policy. Tbe charge when read as a whole is pertinent to tbe issues and explains tbe law as arises on tbe issues. Tbe Court will not permit tbe defendant to extract isolated portions of tbe charge and bold tbe same for error when tbe charge in its entirety correctly explains tbe law arising from tbe issues and gives to tbe defendant a fair trial. A charge is to be taken as a whole and not broken up into disconnected and desultory fragments and thus considered. Gilliland v. Board of Education, 141 N. C., 482; Milling Co. v. Highway Com., supra; Gore v. Wilmington, 194 N. C., 450; Harrison v. Ins. Co., 207 N. C., 488; S. v. Brackett, 218 N. C., 369.

Then, again, tbe only question was that of ownership, and that was tbe only issue not objected to. Tbe other aspects were not germane or material to tbe controversy. Tbe most important phase of tbe controversy as to ownership of tbe automobile was tbe contradictory statements made by Mrs. Martin to Mr. Franklin, witness for defendant. This aspect was thoroughly gone into and tbe jury accepted Mrs. Martin’s version. From an examination of tbe whole record, and bearing tbe persuasive though not convincing argument of defendant, leads us to tbe conclusion that none of tbe exceptions and assignments of error made by defendant can be sustained.

Tbe court below, in tbe charge of some 20 pages, gave tbe contentions of tbe parties accurately and carefully and charged tbe law applicable to tbe facts. On tbe whole record, we can find no prejudicial or reversible error.

Tbe defendant says it wants to pay tbe policy, but wants to be protected and pay it to tbe proper party. Tbe jury has settled that question and it will be protected from further liability.

No error.