Addair v. Motors Ins. Corp.

Citation207 S.E.2d 163,157 W.Va. 1013
Decision Date23 July 1974
Docket NumberNo. 13263,13263
PartiesOliver ADDAIR v. MOTORS INSURANCE CORPORATION.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. It is reversible error to give a binding instruction in favor of the plaintiff which fails to permit the jury to consider a theory of defense which is presented and supported by evidence.

2. 'A binding instruction must require a finding by the jury upon every hypothesis which is necessary to justify a recovery.' Point 7, Syllabus, Penix v. Grafton, 86 W.Va. 278 (103 S.E. 106).

3. An instruction which reflects the mere relation of the facts of a case as envisioned by the plaintiff and which fails to charge the defendant with any duty, liability or wrongdoing is incomplete and the giving of such instruction constitutes reversible error.

4. 'Juries will not be permitted to base their findings upon conjecture or speculation.' Point 4, Syllabus, State ex rel. Shatzer v. Freeport Coal Company, 144 W.Va. 178 (107 S.E.2d 503).

5. 'Loss of profits can not be based on estimates which amount to mere speculation and conjecture but must be proved with reasonable certainty.' Point 5, Syllabus, State ex rel. Shatzer v. Freeport Coal Company, 144 W.Va. 178 (107 S.E.2d 503).

6. 'The verdict of a jury in favor of a plaintiff, based on testimony which does nothing more than furnish ground for conjecture or speculation, as to the proper verdict to be returned, can not be justified and will be set aside by this Court.' Point 6, Syllabus, State ex rel. Shatzer v. Freeport Coal Company, 144 W.Va. 178 (107 S.E.2d 503).

E. D. Wells, Jr., Bluefield, Grover C. Goode, Welch, for appellant.

Wade H. Ballard, II, Welch, Hostler, Logsdon, Shinaberry & McHugh, Sterl F. Shinaberry, Charleston, for appellee.

CAPLAN, Chief Justice:

This is an appeal from a final order of the Circuit Court of McDowell County in an action instituted by the plaintiff, Oliver Addair, against the defendant, Motors Insurance Corporation, sometimes herein referred to as M.I.C., for the recovery of damages alleged to have been caused by reason of the loss of use of a truck by the plaintiff in the business in which he was engaged. At the trial of this case the jury returned a verdict for the plaintiff in the sum of $8,315.00, upon which amount the court entered judgment. It is from this judgment that the defendant prosecutes this appeal.

The plaintiff owned a five-ton 1967 Chevrolet truck which he used in his business of hauling coal. On January 31, 1967 he purchased an insurance policy from M.I.C., under which his truck was insured against accidental loss or damage caused by collision with another object or by upset. On September 8, 1969 the plaintiff's truck was involved in an accident, causing damages which were covered by the insurance policy. The plaintiff notified M.I.C. of the damage and took the truck to Cole Motor Company, Inc. in Bluefield, West Virginia. He alleged that the truck was taken to that garage at the instance of defendant insurance company.

A few days thereafter an adjuster from M.I.C. made a preliminary inspection of the truck and determined that from the nature of the damage, a heavy-duty truck adjuster should handle the claim. Sometime later, apparently after a qualified adjuster had examined the damage, the plaintiff was contacted by an agent of M.I.C. and was told that, in his opinion, the truck could be repaired more quickly and at less expense at Ron's Ford Sales in Bristol, Virginia. As alleged in his complaint, 'Plaintiff, relying on said assurances and representations, consented and permitted' to have his truck moved to Ron's garage. This move took place on September 24 or 25, 1969 and the repairs to the truck were not completed until February 28, 1970.

The defendant paid all of the costs for the repairs, the sole claim of the plaintiff being for damages incurred by the loss of use of the truck for the alleged unreasonable time it took for Ron's garage to repair the damage. It is the position of the plaintiff that, under the provisions of the policy whereby the 'company may pay for the loss in money or may repair or replace the automobile', the defendant chose to make the repairs and in doing so violated its duty by taking an unreasonably long time in causing said repairs to be made.

According to the testimony of the plaintiff, a representative of Ron's Ford Sales told him that they could not proceed with the repairs until they received a work order from M.I.C. This work order was not received until October 25, 1969, but the reason for the delay was not made clear in the record. There was substantial evidence to the effect that the plaintiff had entertained the idea of foregoing the repair of his truck and purchasing a new one.

Basically, the plaintiff charges in his complaint that he took his damaged truck to Ron's Ford Sales at the instance of M.I.C., that it thereby became the duty of the defendant to have the truck repaired within a reasonable time; that it violated such duty; and, that by reason of such violation of duty, he suffered damages in the amount of $8,500.00.

In its answer Motor Insurance Corporation denies that it has violated any duty arising under its contract of insurance. It further says that if any unreasonable delay occurred in the repair of the plaintiff's vehicle causing the latter to suffer damages, such delay and damages were not the result, directly or indirectly, of any breach of contract or breach of duty to the plaintiff on the part of Motors Insurance Corporation.

Although numerous errors are assigned on this appeal the principal issues are whether the defendant breached any duty it owed the plaintiff under the insurance contract and whether the measure of damages upon which recovery was permitted was proper.

Under the terms and provisions of the insurance policy the defendant agreed to pay for any covered damage to the plaintiff's truck; this it did. It is asserted by the plaintiff that M.I.C. undertook to repair the truck and that it thereby became responsible for the unreasonable delay alluded to above. Except for the period of time from the accident to October 25, 1969, as hereinafter discussed, no proof is offered in support of the contention that the defendant caused the delay in repairs.

The evidence reflects that M.I.C., because of the nature of the truck and the damage thereto, suggested to the plaintiff that the repairs be made at Ron's Ford Sales rather than at Cole's garage. Admittedly it was the plaintiff's choice and he made the decision to have the truck repaired at Ron's garage. That he made this decision in reliance upon M.I.C.'s representation that the truck could be repaired sooner and less expensively at Ron's does not in and of itself create liability on the part of the defendant. There is no showing or even an attempt to show that M.I.C. was negligent in suggesting that the truck be repaired by Ron's garage; nor was its motivation in any manner questioned. Likewise there was no offer of evidence tending to show that Ron's Ford Sales did not operate a competent truck repair service. There was, on the other hand, extensive evidence that the subject delay was occasioned by extreme difficulty in obtaining parts needed for the proper repair of the truck. There was also considerable evidence that further replacement and repairs were needed by reason of after discovered conditions caused by wear and tear damage entirely unrelated to the accident.

If indeed M.I.C. chose to repair the truck rather than pay for the loss in money as permitted under Condition No. 3 of the insurance policy it may have assumed a duty to make such repairs and to make them within a reasonable time. However, in order to hold the defendant guilty of a breach of that duty as charged it was incumbent upon the plaintiff to prove by proper evidence some act of the defendant which constituted such breach. Here there was a bare allegation that M.I.C. 'violated its duty and obligation to the plaintiff in having said truck taken to Bristol, Virginia'. There is, with one exception, no allegation or proof that the delay was caused by the recommendation of M.I.C. that the truck be repaired in Bristol, Virginia. That exception relates to the plaintiff's allegation that Ron's garage would not begin the repairs to the truck until it received a work order from M.I.C. and that M.I.C. failed and neglected to send such work order until October 25, 1969. The evidence on this allegation was in conflict so it was for the jury to determine whether such delay was caused by the defendant. This determination, however, should be made on proper instructions and any damages occasioned by the delay in delivering the work order should relate only to the period of time alluded to above, that is, from the time the truck was delivered to Ron's garage to October 25, 1969.

Relevant to the consideration of the defendant's liability is the assignment that error was committed in granting Instruction No. 2 offered by the plaintiff. That instruction reads:

The Court instructs the jury that if you believe from a preponderance of the evidence that the plaintiff's 1967 Model Chevrolet Tandem Truck was insured against loss by collision by the defendant for damage do the truck in...

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