Motors Insurance v. Motor Contract Co. ( 1971 )

Whitman, Judge.

Plaintiff-appellant appeals from an order dismissing its complaint for failure to state a claim and enumerates same as error.

The plaintiff alleged that it issued a policy of insurance insuring a 1966 Chevrolet automobile against theft; that the policy named one George Thomas as the insured and the defendant as lien-holder to be paid in the event of loss as its interest may ap'pear; that Thomas reported the car stolen; that the agreed value of $2,400 was paid to defendant with written acknowledgment by defendant that if it later developed that there had been a conversion rather than theft the $2,400 would be repaid to plaintiff in exchange for the car. The plaintiff further alleged that it found the car; that its investigation disclosed that the car had not been stolen, rather Thomas, while intoxicated, had parked and locked the car, and forgot where he left it; that the Georgia State Patrol eventually recovered it and it remained at an automobile storage yard until it was sold for storage charges; and that plaintiff had advised the defendant of these facts and requested return of the $2,400, but it has refused to do so.

Argued September 20, 1971 Decided October 5, 1971. Dunaway, Shelfer, Haas & Newberry, William S. Shelfer, Jr., for appellant. Charles D. Wheeler, for appellee.

Contrary to appellee’s contentions, the complaint does not show that the car was stolen in the sense set out in the Criminal Code of this State. The motion to dismiss should have been denied. Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260).

Judgment reversed.

Hall, P. J., and Eberhardt, J., concur.