Middle Section, concurring.
I concur in the result reached by my colleagues, but must express some reservations as to the content of the opinion and the rights of parties not determined herein.
I respectfully differ with the statement in Ochoa v. Rogers, Tex.Civ.App. 1921, 234 S.W. 693, that one who incorporates an identifiable stolen part into a reconstructed vehicle thereby acquires title to the stolen part by accession so as to defeat the claim of the true owner of the part for possession. The award of the value of the stolen part *373does not necessarily make him whole, for the judgment awarded may be uncollecti-ble. Theft cannot deprive an owner of title to his property, and requiring him to substitute a money claim for his property is an unconstitutional taking of private property for a private use.
In Dunn v. O’Neal, 33 Tenn. (1 Sneed) 106 (1853), the Supreme Court of Tennessee said:
... Nor can the plaintiff claim title to the defendant’s materials, upon the ground that he had converted them to his own use and become liable for their value. He can acquire no title by a wrongful act, unless the defendant thinks proper to abandon his property and accept a satisfaction in value. For the rule is that, “whatever alteration of form any property has undergone, the owner may seize it in its new shape, if he can prove the identity of the original materials.” Betts v. Lee, 5 Johns. 348. (33 Tenn. at 110)
The doctrine of accession has been discussed and applied in a number of cases, but is not universal in scope. It definitely should not be applied in cases of stolen property which is clearly identifiable.
It is true that the present case presents a situation in which the payment of the value of the stolen part to the owner would be far more practical than to dismantle the vehicle to restore the stolen part to the owner. However, the principle of rights in property is more important than avoiding the practical difficulty of applying the principle in a given case.
Even though the owner of the stolen part should be allowed to follow and reclaim it, this does not mean that he should be entitled to claim the entire vehicle under the doctrine of accession.
The doctrine was designed to produce justice, and it should be applied when it produces a just result. It should not be applied when it will produce an unjust result.
The owner of the stolen part is not a party to this case, hence his rights may not be determined herein. However, the right of the owner to reclaim his identifiable stolen part as urged in this opinion, or the right of the owner to recover the value of such part as recognized in the majority opinion may well ultimately result in one or more of the parties to this case suffering loss from the claims of the owner. The rights of the parties hereto to seek indemnity in event of loss from the claims of the owner should not be precluded by the decision herein, but should be expressly reserved.
ORDER ON PETITION TO REHEAR
We have considered Capitol Chevrolet’s Petition to Rehear and are of the opinion that it is not well taken.
We reviewed Rundle v. Capitol Chevrolet, Inc., 23 Tenn.App. 151, 129 S.W.2d 217 (1939), and considering the factual situation find no conflict between Rundle and the case at bar.
The arguments put forth in the Petition to Rehear were considered by the Court in its original opinion. A rehearing will not be granted to permit reargument of matters fully argued. Rule 39(a), TRAP.
TODD, P. J. (M. S.), and CANTRELL, J., concur.