GURLEY v. THE PHOENIX INS. CO

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Docket Number

No. 40707.

Attorney(S)

Cary Stovall, James E. Price, Jr., Corinth, for appellant. I. One insuring bona fide purchaser of stolen car against its theft cannot set up want of title in insured as defense to liability on the policy, if policy does not require insured to be sole and unconditional owner. National Life Acc. Ins. Co. v. Ball, 157 Miss. 163, 127 So. 268; Gerard v. Metropolitan Life Ins. Co., 167 Miss. 207, 149 So. 793; North British Mercantile Ins. Co. v. Sciandra (Ala.), 54 So.2d 764; Barnett v. London Assn. Corp., 138 Wn. 673, 245 P. 3, 46 A.L.R. 526; Hessen v. Iowa Auto Mut. Ins. Co., 195 Iowa 141, 190 N.W. 150; Norris v. Alliance Ins. Co. (N.J.), 123 A. 762; Giles v. Citizens Ins. Co., 32 Ga. App. 207, 122 S.E. 890; Savarese v. Hartford Fire Ins. Co., 99 N.J.L. 435, 123 A. 763; Royal Ins. Co. v. Shirley, 142 Miss. 249, 106 So. 884; 5-A Am. Jur., Sec. 11 p. 14; 29 Am. Jur., Sec. 318 p. 289; 46 Am. Jur., Sec. 459 p. 623. William L. Sharp, Corinth, for appellee. I. The automobile in question was not "consigned to" or "owned by" the appellant, and the loss was not, therefore, covered by the policy issued by appellee. Brown v. McAdory, 228 Miss. 567, 89 So.2d 597; Mississippi Power Light Co. v. Kusterer Co., 156 Miss. 22, 125 So. 429; Gulf Rfg. Co. v. Harrison, 201 Miss. 294, 325, 28 So.2d 221; N.Y. Life Ins. Co. v. Nessossis, 189 Miss. 414, 196 So. 766; Maryland Cas. Co. v. Southern Farm Bureau Cas. Co., 235 F.2d 679; Bacot v. Phoenix Ins. Co., 96 Miss. 223, 50 So. 729, Ann. Cas. 1912B, 262; Groce v. Phoenix Ins. Co., 94 Miss. 201, 48 So. 298; Rosenstock v. Mississippi Home Ins. Co., 82 Miss. 674, 35 So. 309; German Ins. Co. v. Schmidt, 162 Fed. 447, 89 C.C.A. 333; Liverpool Ins. Co. v. McGuire, 52 Miss. 227; Hartford Fire Ins. Co. v. McCain, 141 Miss. 394, 106 So. 529; Liverpool, London Globe Ins. Co. v. Fuston, 179 Miss. 809, 179 So. 913; Royal Ins. Co. v. Shirley, 142 Miss. 249, 106 So. 884; Hessen v. Iowa Auto Mut. Ins. Co., 195 Iowa 141, 190 N.W. 150, 30 A.L.R. 657; Boulden v. Gough, 4 Penn. (Del.), 48, 54 A. 693; Goodwin v. Taenzer, 122 Tenn. 101, 119 S.W. 1133; Tuttle v. White, 46 Mich. 485, 9 N.W. 528, 41 Am. Rep. 175; Turnbow v. Beckstead, 25 Utah 468, 71 P. 1062; 77 C.J.S., Sec. 279 p. 1078. II. No liability attached to appellant's loss because appellant moved his place of business to a different location from the location designated in the policy without notifying appellee. III. There was no valid proof that appellant owned any interest in the automobile in question. Hartford Fire Ins. Co. v. Knight, 146 Miss. 862, 111 So. 748; Secs. 8065-8069, Code 1942; Chap. 222, Laws 1920. APPELLANT IN REPLY. I. Under the terms of this policy, appellant was not required to be sole and unconditional owner of automobile, but merely owner of an insurable interest therein. Bacot v. Phoenix Ins. Co., 96 Miss. 223, 50 So. 729, Ann. Cas. 1912B, 262; Royal Ins. Co. v. Shirley, 142 Miss. 249, 106 So. 884; 46 Am. Jur., Sec. 459 p. 623; 30 Words and Phrases 633. II. Appellee had full knowledge of the change in location of appellant's place of business, and appellant's tardiness in filing monthly statements and by its conduct waived any objections it might have had because thereof. Saucier v. Life Cas. Ins. Co. of Tenn., 181 Miss. 887, 179 So. 851; Liverpool London Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 440; Buffalo Ins. Co. of N.Y. v. Borden, 211 Miss. 47, 50 So.2d 895; Camden Fire Ins. Assn. v. Koch, 216 Miss. 576, 63 So.2d 103; Continental Ins. Co. v. Thrash, 223 Miss. 344, 78 So.2d 344; American Cent. Ins. Co. v. Meredith, 228 Miss. 402, 87 So.2d 871. III. Appellant's ownership of stolen automobile was admitted in agreed statement of facts, and the allegedly defective bill of sale was not admitted in evidence. Sec. 8065, Code 1942.

Judges

ROBERDS, P.J.

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GURLEY v. THE PHOENIX INSURANCE COMPANY

1. Insurance — automobile theft policy — "sole ownership" provision — ownership is "sole" when.

Insurance ownership is "sole" when no one else has any interest in the property as owner.

2. Sales — one acquiring possession of property by theft cannot confer title by sale even to bona fide purchaser.

One who has acquired possession of property by crime such as theft cannot confer title by sale even to a bona fide purchaser.

3. Insurance — automobile theft policy — automobile dealer who purchased stolen car did not have "sole ownership" as required by his policy and theft of car from such dealer was not covered by policy.

Automobile dealer who purchased stolen automobile without knowledge that it had been stolen did not have "sole ownership" as required by his theft insurance policy, and hence theft of automobile from such dealer was not covered.

Headnotes as approved by Roberds, P.J.

ROBERDS, P.J.

The deciding question in this case is whether or not a certain Chevrolet automobile which was stolen from Gurley, the appellant, was included within and covered by a theft insurance policy which had been issued by the Phoenix Insurance Company, the appellee, to Gurley. The policy covered only automobiles of which Gurley was the "sole owner", with certain exceptions not applicable to the automobile here involved. The question is whether Gurley, under the circumstances here, was the "sole owner" of said automobile. (Hn 1) "An insurance ownership is sole when no one else has any interest in the property as owner." Bacot v. Phoenix Insurance Co., 96 Miss. 223, 50 So. 729. The automobile originally belonged to Lawrence David Roper. It was stolen from Roper and then sold to Gurley, who did not know it had been stolen. It is not shown what consideration Gurley paid for the car. Gurley was an automobile dealer. He placed the car on display for sale. It was stolen from him the night of May 26, 1955. Apparently Roper never located the car after it was stolen from him. His theft insurance carrier paid him for the automobile. What title did Gurley get by his purchase of the stolen car? Did he acquire "sole" ownership of the automobile?

(Hn 2) "In pursuance of the general rule that a person cannot transfer a better title to a chattel than he himself has, one who has acquired possession of property by a crime such as theft cannot confer title by a sale even to a bona fide purchaser. Even innocent parties can acquire no title or lien from a tortious possessor. * * * The same defect of title will continue to exist in all subsequent sales by persons deriving title from a thief as a source." 46 Am. Jur., page 622, Section 459. Roper (or maybe in this case his subrogee) was the owner of the automobile and entitled to its possession. (Hn 3) It cannot be correctly said, in our opinion, that Gurley had sole ownership of this car.

Affirmed.

Hall, Kyle, Holmes and Gillespie, JJ., concur.

GURLEY v. THE PHOENIX INSURANCE COMPANY

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