Other cases holding that a conditional vendor of the automobile, who although retaining the title thereto, has no right to the use or control thereof, is in no position to give the permission provided in such a clause as the one quoted above, so as to bring the conditional vendee within the protection of the policy in which the conditional vendor is the insured. Virginia Auto Mutual Ins. Co. v. Brillhart, 187 Va. 336, 46 S.E.2d 377; Merchants Mutual Casualty Co. v. Pinard, 87 N.H. 473, 183 A. 36; 72 A.L.R. 1390. With regard to the meaning of "permission" or "consent," it is said in the Brillhart case:
It has also been held that a policy insuring the owner of an automobile does not insure one who holds title merely for purposes of security. Merchants Mutual Casualty Co. v. Pinard, 87 N.H. 475, 183 A. 36. See: 45 C.J.S. Insurance § 829. In Nettles v. General Accident Fire Life Assurance Corporation, 234 F.2d 243, 247 (5th Cir. 1956), the Fifth Circuit, considering a fact situation closely similar to the one confronting this court in the instant case, said:
Accord, Home Indemnity Co. v. Bowers, 194 Tenn. 560, 253 S.W.2d 750, 36 A.L.R.2d 668 (pointing out that under the Tennessee law retention of title in a conditional sales contract is in the nature of a lien and mere security for the payment of the price); Virginia Auto Mutual Ins. Co. v. Brillhart, 187 Va. 336, 46 S.E.2d 377; Whitney v. Employers' Indemnity Corp., 200 Iowa 25, 202 N.W. 236, 41 A.L.R. 495 (emphasizing the fact that the loss in the event of destruction of the car would have fallen on the conditional vendee rather than on the vendor). Cf. Peterson v. Universal Automobile Ins. Co., 53 Idaho 11, 20 P.2d 1016; Merchants Mutual Casualty Co. v. Pinard, 87 N.H. 473, 183 A. 36. Apparently there are no Arkansas cases on the question but this Court is of the opinion that the Arkansas law is in accord with the majority rule. Especially is this true in view of the fact that under the Arkansas law the conditional vendee has absolute control and dominion over the property and any loss falls upon him.
In the case before us, since the trial court found that Simoneau had an insurable interest in the car, had made all necessary disclosures in regard to ownership and operation, and had consented to Hegarty's use, the ruling that Hegarty was covered under the omnibus clause of the policy was warranted. The fact that Simoneau also used the car serves, among other things, to distinguish this case from Merchants Cas. Co. v. Pinard, 87 N.H. 473, 183 A. 36 (1936). In the course of the trial statements given by Hegarty and Simoneau to the plaintiff's adjuster were marked for identification. Subsequently the plaintiff's motion that the statements be admitted as exhibits was denied subject to exception.
On the day of the auction and before the accident there was a completed sale by the assured to the defendant Boudle. 1 Williston, Sales (2d ed.) 683. Thereafter the liability of the purchaser for the negligent operation of the truck was not within the coverage of the policy. Merchants Cas. Company v. Pinard, 87 N.H. 473; 7 Appleman, Insurance Law and Practice s. 4358; 13-14 Huddy, Automobile Law s. 308. There is no provision of the policy or any section of the Financial Responsibility Act which provides automatic coverage to the purchaser "of the motor vehicle of the insured." R.L., c. 122, s. 16 (VI). There are cases where it may be said that in law the insurance is considered assigned during the unexpired portion of the policy period to persons having rightful possession of the motor vehicle (R. L., c. 122, s. 16 (IV) but they are confined to cases of "death, insolvency or bankruptcy of the insured" and obviously are not applicable to the facts of this case.
In view of the language of the insurance contract, the admitted facts and the findings of fact contained in the court's decision, we are not convinced that liability is imposed upon the insurance carrier in the absence of ownership solely by reason of the illegal use of the insured's license plates. (See Employers Liability Assur. Corp. v. Sweatt, 95 N.H. 31; Merchants Mut. Cas. Co. v. Pinard, 87 N.H. 473; Dotson v. Malone, 40 So.2d 823, and Byrd v. American Guar. Liability Ins. Co., 180 F.2d 246.) If liability there be, it is only by virtue of the provisions contained in section 59 Veh. Traf. of the Vehicle and Traffic Law. That section is headed "Negligence of operator other than the owner attributable to owner." In this case, it is conceded that Buckle was not the owner of the car at the time of the collision.