Adams v. Queen Ins. Co. of America, 7 Div. 235
| Court | Supreme Court of Alabama |
| Writing for the Court | LAWSON; LIVINGSTON |
| Citation | 88 So.2d 331,264 Ala. 572 |
| Parties | Kenneth ADAMS v. QUEEN INSURANCE COMPANY OF AMERICA. |
| Decision Date | 24 May 1956 |
| Docket Number | 7 Div. 235 |
Page 331
v.
QUEEN INSURANCE COMPANY OF AMERICA.
Rehearing Denied June 30, 1956.
[264 Ala. 574]
Page 333
Evans & Norred, Anniston, for appellant.[264 Ala. 575] Davies & Williams, Birmingham, for appellee.
[264 Ala. 574] 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
Page 334
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[264 Ala. 577] 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.
Page 335
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...
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...v. Money, 258 Ala. 568, 64 So.2d 108. These two cases were construing section 697, Tit. 7, Code 1940, as amended by Acts 1951, p. 1558. [264 Ala. 572] From an examination of the statute in question and the above-quoted judicial expressions as to the requirements of a petition filed under th......
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...Sales & Service v. Gantt, 255 Ala. 508, 52 So.2d 388; Hasty v. Hasty, 260 Ala. 90, 69 So.2d 282; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So.2d The evidence in this case shows beyond peradventure that Shirley was murdered by Mrs. Dennison. We will briefly summarize the fact......
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...1981); Associates Discount Corporation v. Gillineau, 322 Mass. 490, 78 N.E.2d 192 (1948); Adams v. Queen Insurance Company of America, 88 So.2d 331 (Ala.1956); Novak v. State, 195 Md. 56, 72 A.2d 723 (1950). See also, Northern Pac. R. Co. v. Lewis, et al., 162 U.S. 366, 16 S.Ct. 831, 40 L.E......
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Foodtown Stores, Inc. v. Patterson
...in each case was not error. Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177; Adams v. Queen Ins. Co. of America, 264 Ala. 572, 88 So.2d 331; Hasty v. Hasty, 260 Ala. 90, 69 So.2d 282; Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d The appellant next contends ......
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Davis v. Reid, 3 Div. 712
...v. Money, 258 Ala. 568, 64 So.2d 108. These two cases were construing section 697, Tit. 7, Code 1940, as amended by Acts 1951, p. 1558. [264 Ala. 572] From an examination of the statute in question and the above-quoted judicial expressions as to the requirements of a petition filed under th......
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Liberty Nat. Life Ins. Co. v. Weldon
...Sales & Service v. Gantt, 255 Ala. 508, 52 So.2d 388; Hasty v. Hasty, 260 Ala. 90, 69 So.2d 282; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So.2d The evidence in this case shows beyond peradventure that Shirley was murdered by Mrs. Dennison. We will briefly summarize the fact......
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Gissel v. State, No. 16107
...1981); Associates Discount Corporation v. Gillineau, 322 Mass. 490, 78 N.E.2d 192 (1948); Adams v. Queen Insurance Company of America, 88 So.2d 331 (Ala.1956); Novak v. State, 195 Md. 56, 72 A.2d 723 (1950). See also, Northern Pac. R. Co. v. Lewis, et al., 162 U.S. 366, 16 S.Ct. 831, 40 L.E......
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Foodtown Stores, Inc. v. Patterson
...in each case was not error. Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177; Adams v. Queen Ins. Co. of America, 264 Ala. 572, 88 So.2d 331; Hasty v. Hasty, 260 Ala. 90, 69 So.2d 282; Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d The appellant next contends ......