Opinion
No. 6895.
April 8, 1950.
APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY, GORDON DORRIS, J.
Esco V. Kell, of West Plains, Sam Mandell, of Kansas City, for appellant.
Robert L. Hyder and Green Green, of West Plains, for respondent.
This is a suit on a policy of insurance, whereby defendant (appellant) insured plaintiff (respondent) against damage to a used 4-door Oldsmobile automobile, damaged in a collision or upset. A jury awarded plaintiff the sum of $2250, and later plaintiff entered a remittitur of $300, thereby reducing the judgment to $1950. Defendant appealed to this Court.
The evidence tended to show that the automobile could be repaired, and that the remaining parts thereof were not entirely valueless. Bids in different amounts by several repair men were submitted to plaintiff by defendant's agent, and were rejected by plaintiff. As a witness, plaintiff was permitted to fix the value of the automobile, after the damage, "within the vicinity of $400 or $500.00." Plaintiff said that he had declined to have the repairs made by Burns and Easley, garage men of West Plains, because they were not properly equipped to do such work, and so could not repair all of the damage to such automobile.
The policy of insurance was marked Exhibit 1 in the evidence. It bound defendant to pay for the accidental loss of or damage to the automobile, caused by the collision of the automobile with another object, but only for the amount of such loss, in excess of the deductible amount. Nowhere in the policy of insurance did defendant bind itself to pay plaintiff anything more than the actual damage to such automobile, less the deductible amount.
The jury awarded plaintiff the sum of $2250, which was the full amount authorized by Instruction No. 1, and the loss fixed by the jury was the original cost of such automobile, less the deductible amount. Nowhere was there anything in the evidence that the damage to plaintiff's automobile was $2250, or even $1950, the final amount of the judgment.
Defendant filed a motion for a new trial. The first grounds thereof are to the effect that defendant was entitled to a directed verdict. We are not impressed by those grounds, and do not care to discuss them; but we are unable to see any reason why plaintiff was not entitled to have a jury determine his loss on account of the damage to his automobile. Grounds 8-9-10 and 11 will be considered.
The verdict of the jury was not only against the weight of the evidence, but was entirely without evidence to support it. Such verdict was clearly excessive and its very return, in the amount awarded to plaintiff, indicates bias and prejudice, on the part of the jury, against defendant. It rendered judgment for the full original value of the automobile, less the $50 deductible.
The excessiveness of the jury verdict cannot be cured by a remittitur. Unless compelled by a Court, a remittitur leaves it to the plaintiff to say how much he is entitled to recover.
As said in Jenicek v. Harrigan, Mo.App., 217 S.W.2d 764, loc.cit. 767, "The yardstick for the measurement of damages of personal property is the difference between the reasonable market value of it before the injury and the reasonable market value of it after the injury."
This amount can only be fixed by the trier of the facts, from the evidence, and never by the caprice of the one claiming to have been damaged. The remittitur in this case still left the amount of plaintiff's damage to his automobile at a figure much greater than the evidence in the case justified.
We see no way out of this situation, except to order the case tried again. The judgment entered should be reversed and the cause remanded.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.