On Motion for Rehearing.
Nichols, Presiding Judge.The insurance company, in its motion for rehearing, strongly urges that the testimony of the person taking the automobile as to his intent “not to steal” it, together with the advice he obtained from his employer’s attorney as to the title to such automobile demanded a finding that there was no intent to steal and therefore no theft under the provisions of the insurance contract.
The testimony of the employee of Don McCullagh Leasing Company as to his good faith (intent) was admissible, but as was held in Royce & Co. v. Gazan, 76 Ga. 79 (5): “A party may testify as to his intention. It is evidence to be considered, but the facts—all the facts—are to be considered, to arrive at the truth respecting his real motive.” See also Childers v. Ackerman Constr. Co., 211 Ga. 350, 354 (86 SE2d 227), and citations. “It *15is well settled that circumstantial evidence may sometimes outweigh positive testimony.” Minter v. Kent, 62 Ga.App. 265, 272 (8 SE2d 109).
“ ‘A fact can be proved by circumstantial evidence as well as by direct proof, and physical facts and circumstances may be sufficient to authorize the jury to disbelieve the witnesses of a party and to thereby impeach them. Atlantic & Birmingham R. Co. v. Clute, 3 Ga. App. 508 (60 SE 277); Emory University v. Bliss, [35 Ga. App. 752, 134 SE 637] . . . Central of Georgia R. Co. v. Grace, 46 Ga. App. 101, 102 (166 SE 684). “Implications inconsistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain as an issue of fact despite uncontradicted evidence in regard thereto.” Cooper v. Lumbermen’s Mutual Casualty Co., 179 Ga. 256, 261 (175 SE 577).’ McRae v. Wilby, 59 Ga. App. 401, 409 (1 SE2d 77).” Hubbard v. Cofer, 98 Ga. App. 565, 566 (106 SE2d 358). As was held by the Supreme Court in Bowie & Co. v. Maddox & Goldsmith, 29 Ga. 285, 287, circumstances can outweigh direct or positive testimony, and the direct or positive testimony may “break down under the weight of its own absurdity.”
The jury was authorized to find that a witness who testifies that he waited until 3:30 a.m., to take an automobile without permission .of the person in possession, without notifying the officers of the law (or anyone else) and that he immediately took it out of the State is patently telling an untruth when he says he did it in good faith.
The claim of title under Michigan law was not sufficient, as a matter of law, to exonerate the person taking the automobile under the above described circumstances. A similar argument was made, and rejected, in Arthur v. State, 146 Ga. 827, 831 (92 SE 637), where it was contended that a business lawful in another State could be carried on in violation of the laws of this State when done by an agent of the foreign company.
As stated in the original brief of the defendant insurance company, with reference to the title to such automobile in Georgia: “McCullagh Leasing had title against Hill [the dealer who originally purchased the automobile from McCullagh]. Lewis had title which he could assert against everyone.” This does not *16mean that two “titles” were outstanding, but as explained in Georgia Cas. Co. v. McRitchie, 45 Ga. App. 697, 702 (166 SE 49): “Where the vendee under a conditional sale wrongfully converts the property before discharging the purchase money note reserving title thereto, by selling it under circumstances such as would protect an innocent purchaser, the legal title does not really pass out of the vendor by reason of the vendee’s wrongful act, although he cannot assert it as against the equity of the innocent purchaser.” See also Hogg v. Simmons, 94 Ga. App. 83, 85 (93 SE2d 779), and citations. Under all the circumstances in the case the jury could have determined that the employee of Don McCullagh Leasing Company knew of the above law in Georgia, thus explaining his reasons for taking the automobile under the circumstances as shown above. Again, the circumstantial evidence can speak louder than the direct evidence.
The contention that the plaintiff could recover from Don Mc-Cullagh Leasing Company is not a proper defense since in every case where property is stolen, if located, it can be recovered in trover. The insured, in order to recover, must show the theft, but he is not required to show in addition that he cannot locate the thief or the whereabouts of the stolen property. Nor is the contention that the plaintiff could recover from the dealer from whom he purchased the automobile any defense, or any reason why the plaintiff should not recover, since the plaintiff obtained a title good against the world from such dealer. On what ground would he sue? To ask the question is to answer it.
Motion for rehearing denied.