On Motion of Appellee for Rehearing.
Further consideration of the record has convinced us that we erred in holding that liability of appellant to appellee could not be predicated on the destruction of the ear by fire. Notwithstanding it was in the possession of the thief, the car was appellee’s property at the time it was destroyed. The risk insured against was not from fire or theft, as stated in the opinion reversing the judgment, but it was from fire mid from theft. The policy was a combination one, and its legal effect was not different from what would have been the legal effect of two separate policies, one against loss of the car by fire, and the other against loss thereof by theft, in which event we think it would not be a defense to a recovery on the one against fire that the car at the time was in the possession of a thief who had stolen it before the fire occurred. In that view the judgment was-sustainable on the finding that the automobile was destroyed by fire, notwithstanding the stipulation in the policy against incumbering same with a mortgage; for, treating the policy as one against loss by fire alone, the stipulation was “absolutely null and void.” And there is another view of the case which, we think, authorized the trial court, to render judgment in appellee’s favor. Appellant alleged and proved; as stated in said opinion that by the terms of the contract it was not to be liable for loss of the car by theft if appellee incumbered it with a lien without its consent in writing. When appellee so incumbered it the contract ceased to be enforceable against appellant so far as it was to indemnify appellee against loss of the ear by theft. But it remained a valid and enforceable contract so far as it was to indemnify appellee against loss of the property by fire; and, had he recovered the car from the thief, and had it afterwards been destroyed by fire, we think the fact that it had been stolen would be no answer to a suit by him for the indemnity against loss of the property by fire.
The motion will be granted, and the judgment of this court reversing the judgment of the court below ¡will be set aside, and the judgment of said court below will instead -be affirmed.