Opinion
No. 43788.
January 31, 1966.
1. Insurance — collision — amount of loss or damage — jury question.
Whether plaintiff's automobile which was insured against collision damage by defendant was a total loss as contended by plaintiff, or whether it could be repaired for stated sum as contended by defendant was for jury.
Headnote as approved by Rodgers, J.
APPEAL from the Circuit Court of Neshoba County; O.H. BARNETT, J.
Alford Mars, Laurel G. Weir, Philadelphia, for appellant.
I. The Court erred in granting defendant a directed verdict and in not submitting the case to the jury for decision, and said ruling of the Court is contrary to the overwhelming weight of the law and evidence and is not supported by any law or evidence. Illinois Central R. Co. v. Harrison, 224 Miss. 331, 80 So.2d 23; Jackson City Lines v. Harkins, 204 Miss. 707, 38 So.2d 102; Mobile O.R. Co. v. Mullins, 70 Miss. 730, 12 So. 826; Noland v. Castle (Miss.), 27 So.2d 375; Swan v. Liverpool London Globe Insurance Co., 52 Miss. 704.
II. The Court erred in not permitting witness J.E. Watkins to testify as to the cost of repairing the vehicle involved.
III. The Court erred in refusing appellant the right to show by witness Norris Daniel the amount of damages to appellant's vehicle.
IV. The Court erred in not permitting witness Leland Kilgore to testify about the salvage value of the motor vehicle involved, and as to value of same before the accident, and in not allowing him to testify fully concerning the issues involved as shown by the record.
V. The Court erred in sustaining every objection made by appellee, as shown by the record, and in overruling every objection made by appellant as shown by the record; and not only did this keep appellant from fairly proving a stronger case, but also deprived appellant of his day in court. National Fire Insurance Co. of Hartford v. Slayden, 227 Miss. 285, 85 So.2d 916; Anno. 64 A.L.R. 175.
Hamilton Martin, Meridian, for appellee.
I. Cited and discussed the following authorities: Brown Root v. Continental Southern Lines, 228 Miss. 15, 87 So.2d 257; Calvert Fire Insurance Co. v. Newman, 240 Miss. 10, 124 So.2d 686; Colson v. Sims, 254 Miss. 99, 180 So.2d 327; Dehmer v. Hederman, 252 Miss. 839, 173 So.2d 924; Elias v. New Laurel Radio Station, 245 Miss. 170, 146 So.2d 558; Hawkins v. Hillman, 245 Miss. 385, 149 So.2d 17; Johnston v. Canton Flying Services, 209 Miss. 226, 46 So.2d 533; Montague v. Jones, 254 Miss. 104, 180 So.2d 316; Moore v. Winn-Dixie Stores, 252 Miss. 693, 173 So.2d 603; National Fire Insurance Co. of Hartford v. Slayden, 227 Miss. 285, 85 So.2d 916; Peel v. Gulf Transport Co., 252 Miss. 797, 174 So.2d 377; Potomac Insurance Co. v. Wilkinson, 213 Miss. 520, 57 So.2d 158; Richardson v. Stokes, 254 Miss. 71, 180 So.2d 153.
The appellant, Steryot D. Thrash, brought a suit against the appellee, State Farm Mutual Automobile Insurance Company, (hereinafter called Insurance Company), in the Circuit Court of Neshoba County to recover property loss occasioned by the damage to a 1965 Mercury automobile, growing out of a collision. The automobile was insured against collision damages by the Insurance Company. The appellant contended the automobile was damaged to such an extent it could not be repaired satisfactorily and was thus a total loss. The appellee contended that the automobile could be repaired for the sum of $1,579.38, including $50 deductible under the terms of the contract, and $25 towing charge. This sum was tendered in the form of a check into court, with the appellee's answer. The circuit judge withdraw the issue from the jury and entered judgment for appellee.
We are of the opinion that the trial court was in error in directing a verdict for appellee, and that the issue should have been submitted to the jury. The only issue in this case is the amount of damage done to the insured automobile in the collision.
The uncontroverted evidence in this record shows the appellant paid the sum of $3,425 for the insured automobile here involved nine months before the collision. He added a floor mat at a cost of $15, bringing the actual cost of the automobile to $3,440. The testimony shows that the automobile had depreciated not more than $200 at the date of the accident, and this sum subtracted from the purchase price shows the value of the automobile at that date. The Insurance Company's own witness, Harold Stokes, testified he would not pay more than $500 for the salvage of the automobile after the accident. Subtracting the salvage value of $500 from the value of the automobile at the time of the accident leaves a proven property loss which the jury could have determined from the evidence.
The Insurance Company introduced into evidence an itemized estimate of parts and labor claimed by it to be the necessary and reasonable repairs required to repair the automobile. This estimate totaled $1,579.38, including $25 for towing, and less the $50 deductible item under the terms of the policy. An expert witness for the Insurance Company testified that $200 would have to be added to the estimate for a new frame. The trial judge accepted the theory of the Insurance Company as to value, and entered a judgment in favor of the appellant for $1,794.38.
(Hn 1) In view of the conflicting evidence offered by the appellant that the car could not be repaired, we are of the opinion that the issue should have been submitted to the jury. This case must therefore be reversed and remanded.
Reversed and remanded.
Ethridge, C.J., and Gillespie, Jones and Inzer, JJ., concur.