(- -- Ter, -, 282 S. W. 791.) sale in duplicate and that the purchaser shall retain one copy as evidence of title, and file the other with the county tax collector. It is not then the sale of secondhand motor vehicles which is penalized, but the failure to comply with the requirements when such sales are made. The sale is regulated, but not otherwise prohibited. The right to sell is not interfered with. The language used in §§ 3b and 3c is identical with that used in § 4 in stating that "it shall be unlawful" to sell or buy without transferring and delivering or demanding and receiving the receipt, and the language of § 3c penalizing a person for the offense, while not identical with that used in $9, is not materially different therefrom. We, for this reason, conclude that the gist of the offense denounced is not the contract of sale, but the failure to comply with the regulatory requirements prescribed. The act does not expressly provide that sales made without complying with the requirements shall be void. A sale, however, is a necessary incident to a failure to comply with the regulatory requirements; and, if the contract of sale is to be held void, it must be because it will be implied that it was the intention of the legislature that this should result from the failure to do that which the statute requires. Whether it should be implied that it was the intention of the legislature that such sales should be void desales and thereby title to secondpends upon the effect which should render unenforcea- hand motor be given the language used in the ble contracts in re- to comply with act, and the effect to be given is congard to property. requirements. trolled in a large measure by the This it seems to us purpose in view when the law was is clear. To ascribe to the legisenacted. If the evil for which a lature the intention to do a thing remedy was sought was inherent in which is wholly irrelevant to the the sale itself, and the purpose was to correct this evil, it should be impurpose plainly expressed in the plied that the intention was to proenactment itself would be doing viohibit the sale and thereby render it lence to all rules of legal construcvoid. If, on the other hand, the purtion. When the language used in this statute, the evil for which rempose was to correct an evil which bore no direct relation to the conedy was sought, and the effect of tract of sale, the courts would not be into without complying with the reholding contracts void when entered warranted in holding that it was the quirements made, are all taken into intention to declare such a sale void; consideration, we think it is mani for, in the latter case, the sale would be a mere incident without any direct relation to the crime committed. If the evil was the fraudulent sale and transfer of secondhand motor vehicles, and the purpose of this act was to correct this evil, and thereby protect the public from fraud and imposition, a sale without the transfer and delivery of the receipt and execution and delivery of bill of sale would be evidence of a fraudulent transaction and result in a legal presumption of fraud, which would render the contract void. The vice or wrong denounced by the act would. inhere in the sale itself. The failure to comply with the requirement would brand the sale as a fraudulent one. In such case it should be inferred that it was the intention of the Legislature that the contract of sale should not have the effect to transfer title. Statutes-purpose-title. The purpose for which this act was passed is clearly expressed in the caption of the bill. It is to prevent the theft of motor vehicles. We may not presume that the purpose was other than that expressed. Its purpose was not to prevent fraudulent sales and transfers. The theft of motor vehicles has no relation to sales and transfers, and can therefore furnish no ground for a legal inference that it was the intention of the Legislature to prevent such Insurance vehicle-failure statutory fest that the legislature had no intention to declare void sales made where the acts required are not performed. Dunlap v. Mercer, 86 C. C. A. 435, 156 Fed. 545; Harris v. Runnels, 12 How. 84, 13 L. ed. 901; Pangborn v. Westlake, 36 Iowa, 546; Littell v. Brayton Motor & Accessory Co. 70 Colo. 286, 201 Pac. 34; Forney v. Jones, 76 Colo. 319, 231 Pac. 158; Williams v. Stringfield, 76 Colo. 343, 231 Pac. 658; Carolina Discount Corp. v. Landis Motor Co. 190 N. C. 157, 129 S. E. 414. We cannot agree with the holding that plaintiff in error, Hennessy, got no title to the automobile when he purchased it in violation of the requirements of the act, and that title did not pass to Chisholm on the sale to him. Hennessy had an insurable interest in the property insured, and we recommend that the judgments of both courts be reversed, and the cause remanded to the district court. Cureton, Ch. J., delivered the opinion of the court: The judgment recommended in the report of the commission of appeals is adopted, and will be entered as the judgment of the supreme court. We approve the holding of the Commission of Appeals on the questions discussed in its opinion. Petition for rehearing denied. NOTE. Insurance against theft of automobile is the subject of the annotation following ROYAL INS. Co. v. JACK, post, 534. As to what amounts to an insurable interest, see subd. I. of that annotation. JOSEPH BARNETT, Respt., V. LONDON ASSURANCE CORPORATION, Appt. Washington Supreme Court (Dept. No. 2) — April 15, 1926. (138 Wash. 673, 245 Pac. 3.) Insurance, § 862 of stolen property — right to recover. 1. One insuring a bona fide purchaser of a stolen car against its theft cannot set up want of title in insured as a defense to liability on the policy. [See annotation on this question beginning on page 534.] Sale, § 173 right of purchaser of whom it was originally stolen, who is making no claim to it. [See annotations in 14 A.L.R. 219; 19 A.L.R. 173; 24 A.L.R. 743; 30 A.L.R. 665; 38 A.L.R. 1127.] Insurance, § 862 impairment of right of subrogation policy on stolen car. 4. Recovery on a theft policy issued to a bona fide purchaser of a stolen car carrying an altered serial number, by the insured when it is again stolen, is not defeated by the insurer's contract right to subrogation, on the theory that the insurer could not recover the car rightfully bearing the serial number found on the stolen car. (138 Wash. 673, 245 Pac. 3.) APPEAL by defendant from a judgment of the Superior Court for King County (Ronald, J.) in favor of plaintiff in an action brought to recover on a policy of theft insurance. Affirmed. The facts are stated in the opinion of the court. Mr. Fred G. Clarke, for appellant: The car in the possession of plaintiff being a stolen car, he had no title whatever thereto. State Bank v. Johnson, 104 Wash. 550, 3 A.L.R. 235, 177 Pac. 340; 17 R. C. L. 90. A person with no title has no insurable interest therein. O'Neill v. Queen Ins. Co. 230 Mass. 269, 119 N. E. 678. Absence of title renders the policy void. Hessen v. Iowa Auto. Mut. Ins. Co. 195 Iowa, 141, 30 A.L.R. 657, 190 N. W. 150. The subrogation clause in a policy is a valuable one, and if the insured has defeated the right of the company to claim under it he cannot recover under the policy. Downs Farmers Warehouse Asso. v. Pioneer Mut. Ins. Asso. 41 Wash. 372, 83 Pac. 423; 26 C. J. 459. Messrs. Robbins & Rickles, for respondent: Respondent had good title to the car described in the policy of insurance issued, had therefore an insurable interest therein, and could sustain a loss under the policy. He was the "unconditional and sole owner" of the automobile within the meaning of that clause as provided in the policy. Norris v. Alliance Ins. Co. N. J. L-, 123 Atl. 762; Savarese v. Hartford F. Ins. Co. 99 N. J. L. 435, 123 Atl. 763. For an insurance company to avail itself of the defense that insured was not the sole and unconditional owner of the insured property, it must, as a condition precedent to such defense, return or tender the premium paid by the insured. 3 Joyce, Ins. 2d ed. p. 2629, § 1429A; German Union F. Ins. Co. v. Fred G. Clarke Co. 116 Md. 622, 39 L.R.A. (N.S.) 829, 82 Atl. 974, Ann. Cas. 1913D, 488; Metropolitan L. Ins. Co. v. Freedman, 159 Mich. 114, 32 L.R.A. (N.S.) 298, 123 N. W. 547; Caledonian Ins. Co. v. Indiana Reduction Co. 64 Ind. App. 566, 115 N. E. 596; Vulcan Ins. Co. v. Johnson, 74 Ind. App. 62, 128 N. E. 664. Main, J., delivered the opinion of the court: This action was brought upon an insurance policy to recover for loss sustained by reason of the theft of an automobile. The cause was tried to the court without a jury, and resulted in findings of fact, conclusions of law, and a judgment sustaining a recovery in the sum of $450. From this judgment the defendant appeals. On February 10, 1923, the respondent in the city of Chicago purchased a Ford touring car, and paid therefor the sum of $450. Thereafter he added accessories to the extent of something over $100. The car was used by the respondent at the place where it was purchased in connection with his business there until May 8th following. Subsequent to the latter date the automobile was driven by the respondent from Chicago to Seattle, where he arrived on May 22d. The car was then used in the city of Seattle until August 22d, when it was stolen. On July 12, 1923, and prior to the date of the theft, the appellant had issued to the respondent an insurance policy covering the automobile against theft. After the car was stolen, the respondent reported this fact to the appellant. Upon receipt of this information the appellant made a search for it, and in the course of such search discovered a Ford automobile bearing the same number in the state of Mississippi. That automobile was in possession of the rightful owner there who had purchased it, and was not the one upon which the appellant had issued the policy of insurance. The respondent's car which was covered by the insurance, was at no time found. The appellant's first point is that the respondent had no title to the car described in the policy of insurance, and therefore had no right to recover thereon. This position is predicated upon the assumption that, by reason of the fact that there was a car in the state of Mississippi of the same make with a like number, therefore the respondent's car must have been a stolen car. It is not necessary here to determine what may be the probative effect of this evidence. The car covered by the policy upon which the action is based was purchased by the respondent in good faith, used by him, the insurance policy issued to him, and the premium paid. Even though the automobile may have been originally stolen from the rightful owner, the respondent had the title and the right to possession of it as against all the world, except of stolen prop- the rightful owner, assuming that the car had been stolen from him. In Norris v. Alliance Ins. Co. (Sup.) — N. J. —, 123 Atl. 762, it was held that, where the insured was the bona fide purchaser of an automobile on which the policy of insurance against theft was issued, his title was good against every one but the Sale-right of purchaser erty. Insurance of stolen property-right to recover. original owner, and that in an action upon the policy the insured had a right to recover for the theft of the car from him, even though originally it had been stolen from the rightful owner. It was there said: "The defendant's difficulty is that there is no proof that the insured machine was stolen from its original owner, but, if this be granted, plaintiff's title was good against every one but the true owner, and he is unknown and makes no claim of ownership, and plaintiff has never been evicted. He owned it against all the world but a supposed owner, from whom we are asked to infer it was stolen. None but he can assert ownership against the plaintiff, which he does not do, and defendant has no right to do it for him. The plaintiff did not, knowingly, make any false representation to defendant as to his ownership; he supposed he was the unconditional and sole own er without any fact known to him to the contrary, and, so far as this record shows, was, and is, the only person claiming ownership. So far as defendant is concerned, it is the same as if the automobile had been lost and found by plaintiff, who is the true owner, until evicted by one holding better title. The possession of property is prima facie proof of title." ship-effect. The appellant's second point is that, since the policy of insurance provides that it shall be void "if the interest of the insured in the property be other than unconditional and sole ownership, the respondent has no right to recover upon it. The argument in support of this point is also based on the assumption that the car covered by the policy was stolen from the original owner. Even if this be true, it would not -provision prevent a recovery for sole ownerunder that clause in the policy, because, as already noted. the respondent had the right to the automobile as against every one, except the one from whom it was originally stolen, if it were stolen, and that person is making no claim to it. In Savarese v. Hartford F. Ins. Co. 99 N. J. L. 435, 123 Atl. 763, it was held that, where the insured in good faith purchased an automobile and procured insurance upon it against theft, he could recover upon the policy even though it provided that recovery could be had only by one having sole ownership and the car was one which had been stolen from the original owner. It was there said: "The fallacy of this reasoning springs from a misconception of what is understood to be the meaning, in its common acceptation, of the phrase 'unconditional and sole ownership,' as used in the policy of insurance. There is no pretense on part of the appellant that the ownership of the plaintiff of the automobile was 'conditional.' "The stress of appellant's argument is placed upon the term 'sole ownership,' which, under the facts (138 Wash. 673, 245 Pac. s.) of this case, it is claimed the plaintiff did not possess. We think that 'sole ownership' as used in the policy can properly mean nothing more than that no one else is interested with the insured in the ownership of the car. In this view, it is obvious that there was no violation by the plaintiff of the condition of the policy." The last point urged by the appellant is that, if the judgment is sustained, its right of subrogation would be defeated. The policy provided that "if this company shall claim that the loss or damage was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the assured for the loss resulting therefrom, and such right shall be assigned to this company by the assured on receiving such payment." If we correctly gather the appellant's argument, it is based on the fact that it would have no right to recover the car in Mississippi which had the same number as the one covered by the policy. Its right to subrogation to the rights of the respondent with reference to the car covered by the policy is not, as we view it, in any manner impaired. The policy provides of right of that the subroga- -impairment -policy on of Downs Farmers Warehouse Asso. v. Pioneer Mut. Ins. Asso. 41 Wash. 372, 88 Pac. 423, is not in point, because there, after the policy had been issued, the insured entered into a contract which would prevent subrogation. The judgment will be affirmed. Tolman, Ch. J., and Mitchell, Parker, and Mackintosh, JJ., concur. NOTE. The subject of insurance against theft of automobile is treated in the annotation following ROYAL INS. Co. v. JACK, post, 534, and earlier annotations there referred to. As to provisions in relation to the title and ownership, see subd. V. of those annotations. ROYAL INSURANCE COMPANY, Limited, Plff. in Err., V. WILLIAM S. JACK. Ohio Supreme Court- June 2, 1925. (113 Ohio St. 153, 148 N. E. 923.) Insurance, § 862-theft-construction. 1. A policy of insurance was issued, indemnifying the owner of an automobile against loss by "theft, robbery, and pilferage." In construing the term "theft," it should be given the usual meaning and understanding employed by persons in the ordinary walks of life. [See annotation on this question beginning on page 534.] fraud as theft. Insurance, § 862- Headnotes by the COURT. a forged check, such fraudulent transaction so perpetrated by the vendee does not constitute a "theft," within the terms of the policy. [See annotations in 14 A.L.R. 215; 19 A.L.R. 171; 24 A.L.R. 740; 30 A.L.R. 663.] (Marshall, Ch. J., and Day and Allen, JJ., dissent.) 46 A.L.R.-34. |