Adams v. Queen Ins. Co. of America

Decision Date24 May 1956
Docket Number7 Div. 235
Citation88 So.2d 331,264 Ala. 572
CourtAlabama Supreme Court

Evans & Norred, Anniston, for appellant.

Davies & Williams, Birmingham, for appellee.

The following charges were given for defendant:

'10. If you believe the evidence in this case, you cannot award the plaintiff any damages for any alleged acts of insult, malice or oppression.

'12. If you are reasonably satisfied from the evidence that the defendant had better title to the vehicle alleged to have been converted than did the plaintiff on the date of the alleged conversion, then you cannot return a verdict for plaintiff.

'15. I charge you gentlemen, that the burden of proof is on the plaintiff in this case to reasonably satisfy you from the evidence that on September 3, 1952 he had a right to the possession of the vehicle which was superior to defendant's right to said vehicle, and unless you are so reasonably satisfied you cannot return a verdict for plaintiff.'

LAWSON, Justice.

On August 28, 1952, Kenneth Adams, a resident of Anniston, was informed by police officers of that city that they had reason to believe that a 1950 Pontiac which Adams had in his possession was a stolen automobile. The police officers asked Adams to turn the automobile over to them so they could make a thorough investigation. Adams delivered the car to Captain Pate, the then captain of detectives of the city of Anniston, for the sole purpose for which the request had been made and in delivering the car to Captain Pate, Adams did not abandon his claim of ownership or concede that the car had been stolen.

A few days later, on September 3, 1952, Adams, accompanied by his lawyer, went to the office of Captain Pate where they discussed the ownership of the automobile with Pate and with Edwin M. Cole, an independent insurance adjustor, who on that occasion was representing the Queen Insurance Company. At that meeting Captain Pate informed those present that his investigation showed that the automobile in question had been stolen from a resident of Birmingham by the name of Leonard Salit, who had been compensated for his loss by his insurance carrier, the Queen Insurance Company. Over the objection of Adams and that of his attorney, Captain Pate delivered the automobile to Cole as the agent of Queen Insurance Company. Cole drove the automobile to Birmingham, where it was stored and where it was later sold to a party not here involved.

Within a few days after the car was delivered to Cole, Adams filed this suit in trover in the circuit court of Calhoun County against the Queen Insurance Company seeking damages for the conversion of the automobile. The defendant filed a plea of the general issue and several so-called pleas of recoupment, which we need not here consider. There was a jury verdict in favor of the defendant. Judgment was in accord with the verdict. Plaintiff's motion for a new trial being denied and overruled, he has appealed to this court.

Over the objection of the plaintiff, the defendant's witness Salit was permitted to testify that his 1950 Pontiac automobile was 'taken' from his residence sometime in May, 1952. We do not concede that such ruling of the court was erroneous, but if so it was rendered harmless inasmuch as the trial court subsequently excluded that statement of Salit when it was disclosed on cross-examination that he was not at home on the night when his car is alleged to have been taken from the driveway of his residence. Killian v. Everett, 262 Ala. 434, 79 So.2d 17; Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543.

The witness Salit was allowed over plaintiff's objection to testify that at the time his car disappeared from his residence that he carried a policy of insurance with Queen Insurance Company. This was not an attempt to prove the contents of the policy, but was merely a statement of the policy's existence. The best evidence rule has no application. There was no error in this ruling of the trial court. Empire Securities Co. v. Webb, 202 Ala. 549, 81 So. 51; Greil Bros. Co. v. McLain, 206 Ala. 212, 89 So. 505; American Ry. Express Co. v. Stanley, 207 Ala. 380, 92 So. 642.

During the direct examination of the witness Salit counsel for the defendant propounded this question: 'I will ask you to state whether or not you were paid for the theft of that vehicle.' Counsel for the plaintiff objected to the use of the word 'theft' as being a conclusion. The objection was overruled and the plaintiff took an exception. Even if it be conceded that there was error in this ruling of the trial court, which we do not decide, such error was without injury to the appellant, plaintiff below, since the evidence offered by the plaintiff was to the same effect. One of the interrogatories propounded to the defendant by the plaintiff, which interrogatories and the answers thereto were introduced by the plaintiff, was as follows: '3(a) State whether or not the Queen Insurance Company of America has compensated Salit for the loss resulting from the theft of his 1950 Pontiac. (b) State the amount of the compensation paid to him.' The answer to these questions reads as follows: 'Yes, this defendant paid to Mr. Salit the sum of $1950 for the theft of the vehicle and also paid him $140.02 for the loss of use of said vehicle.' Simmons v. Cochran, 252 Ala. 461, 41 So.2d 579.

P. O. Wilson, vice-president of Shaver Pontiac Company, of Birmingham, a witness for the defendant, testified that on or about July 14, 1950, his company sold a 1950 Pontiac automobile to Leonard Salit. Over the objection of the plaintiff, the witness was permitted to testify that sometime in 1952 that car was stored in the shop of Shaver's Pontiac, Inc. At the time the witness Wilson made that statement not all the facts showing his familiarity with the automobile sold Salit in 1950 had been elicited. Such facts were shown by his subsequent testimony and we think the knowledge disclosed in the witness's entire examination qualified him to state that he saw the same automobile in 1952. The establishment of such facts cured any error, if there was one, in permitting the witness to testify as indicated above. Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16.

During the course of the examination of the witness Wilson, he was asked by counsel for the defendant the following question: 'In your judgment, based on having seen the car before, and having seen the car in the Fall of 1952, and from your inspection of that car--the numbers on it--state whether or not, in your judgment, the car which you saw in the Fall of 1952 that was brought in there by Mr. Cole, was one and the same car that had been sold to Mr. Salit in 1950?' Counsel for the plaintiff interposed the following objection: 'Object, that calls for expert testimony in a field in which Mr. Wilson is not qualified as an expert, and invades the province of the jury, calls for conclusion as to an ultimate fact, and on the further ground that the facts on which he might predicate this conclusion has not been presented to the jury.' The trial court overruled the objection and after the plaintiff excepted the witness answered: 'It is my judgment it was the same car.'

Whenever the identity of a thing is in issue, a witness who speaks from personal knowledge and observation may testify to his opinion on the subject. Turner v. McFee, 61 Ala. 468; Mitchell v. State, 94 Ala. 68, 10 So. 518; Shows v. Brunson, 229 Ala. 682, 159 So. 248; Stephens v. State, 1 Ala.App. 159, 55 So. 940; Miller v. Millstead & Hill, 17 Ala.App. 6, 81 So. 182. Wilson's identification of the automobile was positive and therefore not subject to the objection that it was a conclusion of the witness. Richardson v. Impey, Tex.Civ.App., 94 S.W.2d 490. Prior to the time the question was asked the witness it had been clearly shown that he was thoroughly familiar with the automobile when it was sold to Salit and had in his possession a copy of the bill of sale executed by his company at the time the automobile was sold and delivered to Salit and that he had found on the automobile in question, at a place not disclosed, the motor serial number appearing on the bill of sale. There was other testimony going to show the witness' personal knowledge and observation sufficient to enable him to express his opinion as to the identity of the automobile.

Salit testified that he did not remember executing a 'written agreement' to the effect that after the Queen Insurance Compaid paid him for his loss that title to the automobile covered by the policy of insurance would be in the insurance company, but stated that in the latter part of June, 1952, an oral agreement to that effect was entered into between himself and Cole as agent for the insurance company. Cole later testified to the same effect. On cross-examination Cole stated that on a written proof of loss executed by Salit on August 4, 1952, he, Cole, wrote in 'longhand' these words: 'Title to car reverts to company when and if recovered.' On further cross-examination, upon being shown a proof of loss which the plaintiff had introduced as part of the answers made by defendant to interrogatories propounded by plaintiff, the witness Cole said that the following words were undoubtedly included in the printed form at the time it was signed by Salit: 'The insured hereby subrogates the said company to all rights and causes of action the said insured has against any person, persons or corporation whomsoever to the extent of amount claimed above for damage arising out of or incident to said loss or damage to said automobile.'

Counsel for plaintiff then stated to the court: '* * * We move to exclude the testimony of Mr. Cole and of Mr. Salit relating to the effect that there was an oral agreement with the insurance company that the Queen Insurance Company would be subrogated to the rights of Mr. Salit, on the...

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