Barnett v. London Assur. Corp.

• Decision Date: 15 April 1926
• Docket Number: 19667.
• Citation: 138 Wash. 673,245 P. 3
• Parties: BARNETT v. LONDON ASSUR. CORPORATION.
• Court: Washington Supreme Court

245 P. 3

138 Wash. 673

BARNETT v. LONDON ASSUR. CORPORATION.

No. 19667.

Supreme Court of Washington

April 15, 1926

Department 2.

Appeal from Superior Court, King County; Ronald, Judge.

Action by Joseph Barnett against the London Assurance Corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Fred G. Clarke, of Seattle, for appellant.

Robbins & Rickles, of Seattle, for respondent.

MAIN J.

This action was brought upon an insurance policy to recover for loss sustained by reason of the theft of an automobile. The cause was tried to the court without a jury, and resulted in findings of fact, conclusions of law, and a judgment sustaining a recovery in the sum of $450. From this judgment the defendant appeals.

On February 10, 1923, the respondent in the city of Chicago purchased a Ford touring car, and paid therefor the sum of $450. Thereafter he added accessories to the extent of something over $100. The car was used by the respondent at the place where it was purchased in connection with his business there until May 8th following. Subsequent to the latter date the automobile was driven by the respondent from Chicago to Seattle, where he arrived on May 22d. The car was then used in the city of Seattle until August 22d, when it was stolen. On July 12, 1923, and prior to the date of the theft, the appellant had issued to the respondent an insurance policy covering the automobile against theft. After the car was stolen, the respondent reported this fact to the appellant. Upon receipt of this information the appellant made a search for it, and in the course of such search discovered a Ford automobile bearing the same number in the state of Mississippi. That automobile was in possession of the rightful owner there who had purchased it, and was not the one upon which the appellant had issued the policy of insurance. The respondent's car which was covered by the insurance, was at no time found.

The appellant's first point is that the respondent had no title to the car described in the policy of insurance, and therefore had no right to recover thereon. This position is predicated upon the assumption that, by reason of the fact that there was a car in the state of Mississippi of the same make with a like number therefore the respondent's car must have been a stolen car. It is not necessary here to determine what may be the probative effect of this evidence. The car covered by the policy upon which the action is based was purchased by the respondent in good faith, used by him, the insurance policy issued to him, and the premium paid. Even though the automobile may have been originally stolen from the rightful owner, the respondent had the title and the right to possession of it as against all the world, except the rightful owner, assuming that the car had been stolen from him. In Norris v. Alliance Ins. Co. (N. J. Sup.) 123 A. 762, it was held that, where the insured was the bona fide purchaser of an automobile on which the policy of insurance against theft was issued, his title was good against every one but the original owner, and that in an action upon the policy the insured had a right to recover for the theft of the car from him, even though originally it had been stolen from the rightful owner. It was there said:

'The defendant's difficulty is that there is no proof that the insured machine was stolen from its original owner but, if this be granted, plaintiff's title was good against every one but the true owner, and he is unknown and makes no claim of ownership, and plaintiff has never been evicted. He owned it against all the world but a supposed owner, from whom we are asked to infer it was stolen. None but he can assert ownership against the plaintiff, which he does not do, and defendant has no right to

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