Summary
In Gordon v. Gulf American Fire and Casualty Company, 113 Ga. App. 755, 149 S.E.2d 725, the court reiterated its prior holding (Giles v. Citizens' Ins. Co. of Missouri, 32 Ga. App. 207, 122 S.E. 890) that a bona fide possession of stolen property does not give the holder any sort of title whatever, such as would come up to the rule governing an insurable interest.
Summary of this case from Ernie Miller Pontiac, Inc. v. Home Insurance CompanyOpinion
42005.
ARGUED MAY 4, 1966.
DECIDED MAY 26, 1966.
Action on insurance policy. Richmond Superior Court. Before Judge Killebrew.
Harris, Chance, McCracken Harrison, Roy V. Harris, Thurmond, Hester, Jolles McElmurray, Thomas R. Burnside, Jr., for appellant.
Fulcher, Fulcher, Hagler, Harper Reed, William C. Reed, A. Montague Miller, for appellee.
1. The insured has no insurable interest in an automobile which he purchased in good faith from another, when it appears that previously the vehicle had been stolen from another owner whose insurance company had paid him for the loss and held title under a bill of sale.
2. A provision in an automobile theft policy that coverage is extended to a "non-owned" automobile does not include a vehicle in which the insured has no insurable interest.
ARGUED MAY 4, 1966 — DECIDED MAY 26, 1966.
Daniel W. Gordon and Motor Contract Company, holding a conditional sale contract from him, brought suit against Gulf American Fire Casualty Company on an automobile theft policy to recover the value of an automobile described in the policy as being the property of Gordon, with a loss payable clause running to Motor Contract Company as its interest might appear. It is alleged that Gordon purchased the car from Quality Motors and that the conditional sale contract executed in connection with the purchase was transferred to Motor Contract Company. It is alleged that on November 24, 1964, while the policy was in full force and effect, the automobile was stolen from Gordon.
A copy of the policy was attached to the petition, showing that it provided to the named insureds: "Coverage G — Theft: To pay for loss to the owned automobile or to a non-owned automobile caused by theft or larceny." "Owned automobile" is defined in the policy to mean: "a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded." "Nonowned automobile" is defined to mean: "a private passenger automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile, while said automobile or trailer is in the possession or custody of the insured or is being operated by him."
Defendant pleaded that the vehicle described in the policy and alleged to have been lost by theft "was not the property of the plaintiffs, but was a stolen vehicle, the same having been stolen from one Kenneth L. Wall in Columbus, Georgia on or about the 27th day of June, 1964 by a person or persons unknown to the defendant, and by reason thereof the plaintiffs had no insurable interest therein on the date said policy was issued and acquired no insurable interest therein between the date of the issuance of the policy and the date of the loss as alleged in the petition; that said policy was issued and a premium of $41 paid and accepted under the mistaken belief by all parties that the said Daniel W. Gordon had an insurable interest in the said vehicle," and deposited in the registry of the court $41 tendered in full satisfaction of any claim that plaintiffs might have.
Plaintiff testified that he had purchased the car in good faith from Quality Motors and that it was stolen from the front of his home in Augusta on November 17. He had notified the Augusta police and the insurance company as soon as he discovered his loss. He had made claim for his loss and the defendant company had declined to pay. Defendant's evidence disclosed that a car of the same description (though having a different serial number on it) was stolen from Kenneth L. Wall in Columbus on or about June 27, 1964, which had been insured by United Services Automobile Association, and that his insured had paid the loss, taking from him a bill of sale to the vehicle.
Wall testified that while on maneuvers in September, 1964 he landed at Bush Field and learned from a friend that his car was on the parking lot; that he went to the parking lot, saw the car and recognized it immediately as the one stolen from him. He identified it, not only as to make, model and color, but also from fourteen markings that had been peculiar to his car; the radio antenna mounted at left rear, a rip in the convertible top at right rear, a yellow stain on the top above the right door window, touch-up paint on the steering column, mounting of a rear speaker switch for the radio, location of wires for the rear speaker, etc., etc.
Officer Pardue, of the Augusta Police Department, testified that Captain Wall had informed him of the vehicle and that he went out to inspect it, finding that the serial plate on the left door post was roughly welded to the post and loose at the top, indicating that it had been removed and replaced, that the number stamped in the frame (which is the manufacturer's serial number) had been changed — there being indications of the use of a grinding or filing tool on the number, that the door locks and ignition switch identification numbers had been filed away, and that at approximately five inches forward of the rear door post was a welded seam across the floorboard, though the "rocker seals" installed at the factory were not broken.
The car was temporarily impounded by the Augusta police after Officer Pardue's investigation, but returned to Mr. Gordon when he stated that he needed it for making a planned trip to Florida, and the results of the investigation were reported to National Auto Theft Bureau. He heard no more of it until Gordon called November 17 saying that the car had been stolen from him.
A verdict was returned for the plaintiffs, but thereafter the court granted a judgment for the defendant notwithstanding the verdict, and plaintiffs appeal.
1. The appellee insurance company strongly relies upon Giles v. Citizens Ins. Co. of Missouri, 32 Ga. App. 207 ( 122 S.E. 890), where the facts are substantially the same as here. In that case the court held that, "the bona fide possession of stolen property does not give the holder any sort of title whatever, such as would come up to the rule governing an insurable interest; nor does his bona fide possession of stolen property constitute such an exclusive and undisputed claim as would entitle him to be called the `sole and exclusive' owner." To that extent Giles does support the contention of the appellee here.
Testimony that the vehicle was the one stolen from Wall was not only uncontradicted, but supported by the testimony of all who testified. Captain Wall was in no way impeached. "The law presumes that witnesses who testify are credible and worthy of belief, unless impeached or otherwise discredited." Coates v. State, 192 Ga. 130 (2) ( 15 S.E.2d 240). "[R]elevant testimony in behalf of the company on the part of its servants can not, if they be unimpeached, arbitrarily be disregarded by the court or jury, upon the assumption that it is not, in point of fact, in accord with the truth." Macon Birmingham R. Co. v. Revis, 119 Ga. 332 ( 46 S.E. 418). "The identification was complete although the witness did not know the brand names or serial numbers of the objects." Richardson v. State, 113 Ga. App. 163 (4) ( 146 S.E.2d 653). And see Jordan v. State, 119 Ga. 443 (2) ( 46 S.E. 679). Certainly there is no greater requirement of identification in a civil case than in criminal cases. A finding that the automobile was the one which had been stolen from Captain Wall was demanded and a verdict for the plaintiff was unauthorized. Southern R. Co. v. Russell, 46 Ga. App. 772 ( 169 S.E. 245); Savannah Atlanta R. Co. v. DeBusk, 68 Ga. App. 529 ( 23 S.E.2d 529); Jones v. Powell, 71 Ga. App. 202 ( 30 S.E.2d 446); Atlantic C. L. R. Co. v. Martin, 79 Ga. App. 194 ( 53 S.E.2d 176).
Appellants urge that Giles requires a reversal here under its further holding: "In the instant case it indisputably appears that the plaintiff was in bona fide possession of property previously stolen from the original owner by parties unknown, about two years previously, and that the original owner had transferred all his title and interest in the car to the other insurance company, which had indemnified him against his loss by the original theft; but the record discloses that the defendant, upon whom the burden rests of disproving the title of the plaintiff in possession at the time of the second theft, has failed to show that the other insurance company had not conveyed its title and interest to a party through whom the plaintiff claimed."
In this case the manager of the subrogation division of United Services Automobile Association testified that the company had paid Captain Wall for his loss and, upon doing so, had taken from him a bill of sale dated July 16, 1964, to the car, and a transfer of his vehicle registration certificate. He then testified: "Q. Do you have the vehicle now? A. No. Q. But you do have title to it, is that correct? A. Yes." The registration certificate issued to Captain Wall, transferred by him to United Services, and the bill of sale from Wall to United Services reciting a consideration of $2,800 were introduced. Consequently, there was proof that title to the car was outstanding in United Services at the time of the subsequent loss of the car by Gordon, and the holding in Giles as to a failure "to show that the other insurance company had not conveyed its title to a party through whom the plaintiff claimed" is not applicable. Moreover, the validity of this holding is doubtful in the light of the doctrine of continuity as stated in Anderson v. Blythe, 54 Ga. 507, 508, which has special application to the matter of title. Coleman Burden Co. v. Rice, 105 Ga. 163 ( 31 S.E. 424).
The rule of Giles as to insurable interest is not changed by Code Ann. § 56-2405 in which it is defined, as to property, to mean "any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment." (Emphasis supplied.) It was held in Giles that one who purchases stolen property, though in good faith, can acquire no title — hence no lawful interest. Cf. Sappington v. Rimes, 21 Ga. App. 810 ( 95 S.E. 316); Hancock v. Anchors, 26 Ga. App. 125 (2) ( 105 S.E. 626); Bush v. Ogletree, 38 Ga. App. 55 (1) ( 142 S.E. 463); McElroy v. Williams Bros. Motors, 104 Ga. App. 435, 439 ( 121 S.E.2d 917); Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 700 ( 140 S.E.2d 83).
2. Does the provision of the policy providing coverage to a "non-owned" vehicle alter this situation? We think not. The provision simply can not and does not extend coverage to vehicles in which the insured has no insurable interest. If it did, it would convert the insurance contract into a gaming arrangement and render it void as a matter of public policy. "The rule which restricts the execution of a valid contract of insurance . . . to one who has an insurable interest . . . is founded alone on public policy." Union Fraternal League v. Walton, 109 Ga. 1, 3 ( 34 S.E. 317). See Code § 20-504. "No court can properly concern itself with the enforcement of a contract which is contrary to public policy and for that reason void, nor with the adjustment of alleged rights or equities growing out of such a contract. This doctrine is so thoroughly established and so universally recognized that it will not, we apprehend, be questioned; but it has evidently been too often overlooked by the courts in their efforts to do what they conceived to be `justice.'" Exchange Bank of Macon v. Loh, 104 Ga. 446, 459 ( 31 S.E. 459). If we should hold that the "non-owned" vehicle provision extends to one in which the insured has no insurable interest, we place him under a temptation to bring about a loss and collect the proceeds from the policy.
It is true that title is not the sole test for determining an insurable interest. It may be a special or limited interest, disconnected from any title, lien or possession, whereby the holder of the interest will suffer loss by its destruction, etc., and that will entitle him to protect the interest by insurance. Pike v. American Alliance Ins. Co., 160 Ga. 755, 761 ( 129 S.E. 53). And see Farmers Mut. Fire Ins. Co. of Ga. v. Pollock, 52 Ga. App. 603 (3) ( 184 S.E. 383). But he must have some lawful interest, and under the holding in Giles he can not have it in stolen property.
The insured, under this non-owned provision, might well have an insurable interest in a vehicle which he has leased, or which has been supplied to him by another as a temporary substitute for his own. He would be held accountable to the owner if the loss should occur, as is recognized in Code Ann. § 56-2405(1). Whether owned or non-owned, the insured must have an insurable interest in the subject matter of the contract, and under the ruling in Giles, Gordon had none in this vehicle.
Another reason why the "non-owned" provision afforded no coverage and is not applicable in this instance is that Gordon obtained insurance on it as an owned vehicle; it was so listed in the policy and he paid a specific premium charge for the coverage. As to the insured, it cannot occupy the position of an owned and a nonowned vehicle at one and the same time, nor can both coverages extend to it.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.