Summary
In Boston Ins. Co. v. Wade, 203 Miss. 469, 35 So.2d 523 (Sup.Ct. 1948), the insured purchased a collision policy on a certain truck.
Summary of this case from Titus v. West American Ins. Co.Opinion
No. 36754.
May 10, 1948.
1. INSURANCE. Trial.
In action on collision policy limiting insurer's liability to the cost of repairing or replacing truck, giving of instruction for insured that jury should fix amount of insured's damages at amount jury believed insured sustained by reason of the collision was error because instruction did not limit recovery to amount of repair, and such error was not cured by instruction granted insurer.
2. INSURANCE.
Collision policy did not cover wooden body placed on insured truck after issuance of policy.
3. INSURANCE.
In action on collision policy which limited insurer's liability to cost of repair or replacement of insured truck, introduction of evidence that if truck should be repaired it would not be as good as new was error.
4. EVIDENCE.
In action on collision policy, testimony of a mechanic that injuries not discoverable by inspection when repairs are made of a damaged automobile are nearly always discovered later, and that subsequently discovered damage to insured truck would probably amount to $200 or $300, should not have been admitted because speculative.
APPEAL from the Circuit Court of Perry County.
E.J. Currie, of Hattiesburg, for appellant.
The trial court erred in admitting testimony, over the objection of the appellant, as to the alleged value of the body of the truck involved in this cause. The value of the body and any damage thereto were not covered by the contract of insurance.
The trial court erred in admitting testimony, over the objection of the appellant, as to alleged invisible, conjectural and speculative damages.
The trial court erred in granting the following instruction to the plaintiff and appellee: "The court instructs the jury for plaintiff that he cannot recover damages in a sum greater than sued for, to-wit, $1673.11, less $50.00, or a total of $1623.11."
Gulfport Mississippi Coast Traction Co. v. Keebler, 130 Miss. 631, 94 So. 795; Alabama V.R. Co. v. Dennis, 128 Miss. 298, 91 So. 4.
The trial court erred in granting the following instruction to the plaintiff and appellee, viz.: "The court instructs the jury that you must find for the plaintiff and that you should fix the amount of his damages at such an amount as from a preponderance of the evidence you believe plaintiff sustained by reason of the collision with his said truck, less the sum of $50.00, as provided in the insurance policy on which this suit is brought."
Center Garage Co. v. Columbia Ins. Co., 96 N.J.L. 456, 115 A. 401; 42 C.J. 802, Sec. 378; 29 Am Jur. 148-149, Sec. 132.
The verdict of the jury and the judgment of the trial court rendered thereon are grossly excessive.
29 Am. Jur. 148-149, Sec. 132, pp. 688-689, Sec. 901.
The trial court erred in overruling the motion of the appellant and defendant to vacate and set aside the verdict and judgment rendered in this cause and to award the appellant and defendant a new trial.
Ben Stevens and E.C. Fishel, both of Hattiesburg, for appellee.
If the defendant desired to limit its liability to the cost of repairs and replacement this was an affirmative defense and the burden was on them to have undertaken the expense and cost to disassemble the motor, transmission and differential so the exact amount of damages could be ascertained, and since this disassembling was not done and was impossible to do without considerable cost to the insurer, the only other possible basis from which the amount of loss could be determined was that of the value of the automobile truck before the accident, less the value of it afterwards, which was the salvage value, and on this basis the amount of the verdict is not excessive, but reflects on the part of the jury an honest effort to arrive at the true basis of the loss.
26 C.J. 451, Secs. 608, 609; 42 C.J. 802, Sec. 378.
There was no error in admitting the testimony with reference to the truck body, and while the declaration did allege that the truck was injured to the extent of $1673.11, less the $50.00 deductible, yet this declaration was accompanied by the original of the insurance policy as an exhibit thereto, which shows it was insured for the actual cash value, less the $50.00 deductible.
The trial court did not commit error in permitting the testimony as to the invisible damages. No witness attempted to place any amount on these unseen damages, but this testimony was competent to show that the only basis of arriving at the appellee's loss was to take the automobile truck at its actual cash value on the date of the accident and then determine its value after the accident, and that the difference between the two would be the amount of appellee's loss. Apparently, this is what the jury did, and also in fixing the liability of the defendant in deducting the $50.00 therefrom.
There was no error committed in the instructions complained of.
Gulfport Mississippi Coast Traction Co. v. Keebler, 130 Miss. 631, 94 So. 795; Gulf S.I.R. Co. v. Nelson, 82 Miss. 653, 35 So. 158; Palatine Ins. Co. v. Nunn, 99 Miss. 493, 55 So. 44.
The appellant issued an insurance policy to the appellee on an automobile truck for which the appellee paid $1,673.11. After it had been used by the appellee for about nine months, it was struck and damaged by another truck. The declaration alleged the damages to be $1,673.11 less $50.00, the reason for which will hereafter appear. The appellant, by notice under its plea of general issue, admitted liability, but alleged that the truck was not totally destroyed but could be repaired at a cost not exceeding $501.94 from which the $50.00 provided therefor in the policy should be deducted, leading $451.94, as the amount for which it was liable to the plaintiff. The judgment recovered by the appellee was for $1,375.00.
The following provisions of the policy are applicable hereto:
"Coverage: . . . B. Collision or Upset.
"Limits of Liability: Actual cash value less $50.00 which deductible amount shall be applicable to each collision or upset.
"Actual Cost When Purchased, including equipment, $1,673.11; Purchased, M. Oct. Y. 1946; New or Used — New. . . . 3. Limit of Liability; Settlement Options; No. Abandonment.
"The limit of the Company's liability for loss shall not exceed the actual cash value of the automobile, or if the loss is of a part thereof, the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, with deduction for depreciation, nor the applicable limit of liability stated in the declarations."
There was evidence by the appellee that the truck was badly damaged but his evidence also disclosed that visible injury thereto could have been repaired at a cost of $1,047.40, but that injury might, and probably would, show up thereafter not ascertainable without taking the truck to pieces. The evidence thereafter was in accord with the notice under its general issue.
It will thus be seen that the truck could have been repaired; consequently, the appellee's recovery should have been limited under the express provisions of the policy to what it would have cost to repair it. This being true, the court erred in granting the following instruction for appellee: "The court instructs the jury that you must find for the plaintiff, and that you should fix the amount of his damages at such an amount as from a preponderance of the evidence you believe plaintiff sustained by reason of the collision with his said truck, less the sum of $50.00 as provided in the insurance policy on which this suit is brought."
This instruction did not restrict the jury in awarding damages to the appellee to what it would have cost to repair the truck and was not cured by the one instruction granted the appellant, which the reporter will set out in full.
"The Court instructs the jury for the defendant that if you believe from a preponderance of the evidence in this case that the loss of the plaintiff was not a total loss, but that the truck of the plaintiff was partially damaged as a result of the collision in question, then in such event you cannot return a verdict in favor of the plaintiff for a greater sum than the cost of repairing said truck to a condition as good as it was in prior to said collision, less the sum of $50.00."
There are other errors, however, in the record. Some time after the insurance policy was issued, the appellee placed a wooden body on the truck at a cost of $200.00. Over the appellant's objection this $200.00 was added to the appellee's estimate of the value of the truck. This should not have been permitted as the insurance policy did not cover this addition to the truck.
The plaintiff also introduced evidence, over the appellant's objection, to the effect that if the truck should be repaired it would not be as good as new. The repairs for which under the policy the appellant is liable are not such as would make the truck as good as new but as good as it was when it was injured.
Over the objection of the appellant, the appellee introduced the following evidence by a mechanic:
"Q. Does or not something you frequently don't discover in one later occur to them? (referring to injuries not discoverable by inspection when the repairs were made). A. Nearly always does.
"Q. What is your estimate of the general damage in value to that truck even though the labor and parts are put on it? A. Well, generally there is a difference. There are two or three hundred dollars between this value.
"Q. And would that apply here to this car? A. Well, I think so, sir."
This evidence was speculative and should not have been admitted.
Reversed and remanded.