Gordon v. Gulf Am. Fire & Cas. Co.
| Decision Date | 26 May 1966 |
| Docket Number | No. 42005,No. 3,42005,3 |
| Citation | 149 S.E.2d 725,113 Ga.App. 755 |
| Parties | Daniel W. GORDON et al. v. GULF AMERICAN FIRE AND CASUALTY COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The insured has no insurable interest in an automobile which he purchased in good faith from another, where it appears that the vehicle had been previously stolen from another owner whose insurance company had paid him for the loss and held title under a bill of sale from him.
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.
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.' 'Non- owned 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 24. 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 insurer had paid the loss, taking from his 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 to 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 wilded 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.
Harris, Chance, McCracken & Harrison, Roy V. Harris, Thurmond, Hester, Jolles & McElmurray, Thomas R. Burnside, Jr., Augusta, for appellants.
Fulcher, Fulcher, Hagler, Harper & Reed, William C. Reed, Augusta, for appellee.
1. The appellee insurance company strongly relies upon Giles v. Gitizens 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 cannot, if they be unimpeached, arbitrarily be disregarded by 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...
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