1. The evidence showed that the *2plaintiff bad purchased the automobile in question from a used car dealer who had in turn purchased it from another dealer at an auction. The selling dealer at the auction had purchased the automobile from Don McCulIagh Leasing Company under an oral agreement whereby title was to remain in the -seller until the purchaser’s check cleared the bank (the title was attached to such check and was to be delivered to the purchaser when the check was paid). Shortly after the above transaction took place an employee or agent of Don McCulIagh Leasing Company went to Toccoa, Ga., where the original purchaser was located, to either repossess the automobile or collect the purchase price. When he found that the original purchaser did not have the necessary funds to1 pay for the automobile and that it had been sold, he found out the identity of the ultimate purchaser, the plaintiff, and without contacting the plaintiff personally he removed the automobile from the plaintiff’s premises at 3:30 a.m., with keys he made before leaving Detroit, and drove the automobile back to Detroit. The agent or employee of Don McCulIagh Leasing Company testified for the defendant insurance company by deposition, and on cross examination testified that he found out from the county records and from information obtained from “Western Auto” the identity of the purchaser of the automobile, that he contacted the police but did not tell them his purpose, that he went by the plaintiff’s home in daylight hours but did not attempt to contact the plaintiff personally and that he waited until 3:30 a.m., when everyone was sleeping, to pick up the automobile so that he could get it with “as least problems as possible,” that he wanted to obtain possession peacefully.
In South Carolina Ins. Co. v. Jackson, 103 Ga. App. 3 (117 SE2d 878), relied upon by the insurance company, it was held that where property is taken under a fair claim of right it is not larceny. In that case the “taker” placed the property taken on his front yard a block from the place where it was taken in “plain view.” In support of such decision, cases were cited where the taker “seemed to desire it to be known and observed by all men” that he had the property.
In the case sub judice the “taker seemed to desire that no man see him take the property and that no one know who took *3the property,” the very opposite from the situation in cases relied upon by the insurance company. The evidence authorized the verdict finding that the automobile was stolen within the terms of the policy. Accordingly, the trial court did not err in overruling the usual general grounds of the defendant’s motion for new trial. Special ground 1, being a mere amplification of the usual general grounds, was likewise properly overruled.
2. Error is assigned upon the charge authorizing the jury to consider whether the insurance company had been guilty of the bad faith referred to in Code Ann. § 56-1206 so as to authorize the award of attorney’s fees and penalty.
The defendant insurance company relies upon cases holding that if the question of liability is a close one, the courts, for the furtherance of justice should see to it that verdicts which illegally carry a penalty for bad faith are not allowed to stand. While, under such circumstances, where the question of liability is close or the facts are in dispute, so that the insurer has reasonable grounds to contest the claim, no penalty should be permitted, yet where as here the automobile was taken in the early hours of the morning by one who admitted that he purposely waited until everyone was asleep so that he could take the car with keys he had made before coming to Georgia, and the automobile was immediately, under cover of night, taken from the State of Georgia, the evidence authorized the jury to consider whether the refusal to pay was in bad faith notwithstanding the insurer’s claim that the automobile was taken under a claim of right. The jury was authorized to find that the circumstances of the taking spoke louder than the taker’s words as to his intent, and that the insurer had no reasonable or probable cause to believe that the automobile was not in fact stolen. The trial court did not err in overruling special ground 2 of the amended motion for new trial.
3. The sole remaining special ground of the amended motion for new trial complains of an excerpt from the court’s charge which, when considered with the entire charge, shows no reversible error.
The trial court did not err in overruling the defendant’s motion for new trial for any reason assigned.
Judgment affirmed.
Felton, C. J., Frankum, Bussell and Pan *4 nell, JJ., concur. Jordan and Hall, JJ., concur as to Divisions 1 and S only. Bell, P. J., and Eberhardt, J., dissent.This appears to be the situation in all States where the uniform Motor Vehicle Title Certificate Law has been adopted. See 37 Mich. L.R. 758. There can be no authority, “apparent” or otherwise, to sell or transfer title to any vehicle subject to its terms except by a transfer of the title certificate.