The concluding paragraph of the majority opinion reads: "The judgment will therefore be reversed and the cause remanded for a new trial, and the jury directed to determine whether, according to a preponderance of the testimony, the car had in fact been stolen from the original owner and surrendered to his possession, and if so, to return a verdict for the defendant."
I think the judgment of the Circuit Court should be affirmed because, as I see it, the question of the original theft of the car is a matter entirely immaterial in this *Page 608 case. I cannot bring myself to agree that the unconditional ownership clause in the insurance policy should be allowed to defeat recovery in a case such as was here developed.
Hendrix purchased the car for its full value and in good faith from a reputable automobile dealer. Hendrix insured the car and was in possession at the time of the loss. No question of his ownership or title had ever been raised prior to the time the car became a loss and the claim was filed against the insurance company. While the adjustment of the claim was pending it developed that the car had been stolen before it was sold to the dealer, who resold it to Hendrix. But at the time the car was damaged and the insured loss occurred, the theft of the car was as unknown to the dealer and Hendrix as it was to the insurance company.
The unconditional ownership clause in an insurance policy is designed to prevent corruption and overreaching. Here, the insurance company is being allowed to hide behind the unconditional ownership clause and thereby accomplish all overreaching. What was designed as a shield against oppression is being converted into a sword to effect oppression. To review the authorities contrary to the majority holding herein would only serve to lengthen this opinion. They are listed in the various A.L.R. Annotations mentioned and referred to in the majority opinion. I agree with the statement in Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 6, 3503: ". . . a purchaser in good faith of an automobile for a valuable consideration, who is in undisputed possession of it, has an interest therein sufficient to enable him to recover on a policy insuring it, issued to him while in such possession, despite its having been stolen from the original rightful owner."
The conclusion of the whole matter is that the majority is allowing the unconditional ownership clause in the policy to work an injustice rather than to prevent injustice. I therefore respectfully dissent, and I am authorized to state that Mr. Justice MILLWEE joins me in this dissent. *Page 609