Calvert Fire Ins. Co. v. Newman

• Decision Date: 28 November 1960
• Docket Number: No. 41595,41595
• Parties: CALVERT FIRE INSURANCE COMPANY v. Elbert T. NEWMAN.
• Court: Mississippi Supreme Court

Page 686

124 So.2d 686

240 Miss. 10

CALVERT FIRE INSURANCE COMPANY v. Elbert T. NEWMAN.

No. 41595.

Supreme Court of Mississippi.

Nov. 28, 1960.

John E. Mulhearn, Natchez, for appellant.

Johnson & Johnson, Natchez, for appellee.

KYLE, Justice.

This case is before us on appeal by the Calvert Fire Insurance Company, defendant in the court below, from a judgment rendered by the County Court of Adams County in favor of Elbert T. Newman, plaintiff, and affirmed by the circuit court of said county, in the sum of $2,159.86, for property damage to the plaintiff's 1957 Plymouth Plaza automobile, which had been damaged as the result of a collision on or about April 11, 1958, said automobile being covered by an insurance policy issued by the appellant insuring the said automobile for a period from February 8, 1957, to February 8, 1960.

The plaintiff alleged in his declaration that the automobile was purchased by him on February 8, 1957, and that the price paid for the automobile, including sales tax and the cost of a radio installed a short time after the purchase of the automobile, was $2,693.75; that the collision which resulted in the damage to the automobile occurred just outside the city limits of the City of Natchez on April 11, 1958, causing said automobile to be wrecked beyond repair. The plaintiff further alleged that he had complied with all necessary conditions precedent to the right to recover under said policy from the defendant the actual cash value of the automobile at the time of its destruction, plus the towing and storage costs which amounted to $65 less $50 deductible, or a total of $2,174.86. The plaintiff further alleged that the defendant had refused the plaintiff's request to have said loss appraised as provided for in said policy, and that as a result of the willful failure of the defendant to agree to have said loss appraised and the breach of said contract on the part of the said defendant, it had been necessary for the plaintiff to employ an attorney to prosecute his claim. The complainant therefore asked for judgment for the said sum of $2,174.86, and in addition thereto the sum of $500 for attorney's fee and $150 for additional expense in preparation of the case for trial making a total $2,824.86.

The defendant, in its answer, admitted that the automobile had been damaged in the above-mentioned collision, but denied that the collision caused said automobile to be wrecked beyond repair which amounted to a total loss. The defendant denied that it had refused the defendant's request for an appraisal of the damage or loss, and the defendant denied that the plaintiff was entitled to recover the cash value of the automobile at the time of its destruction plus towing and storage cost less $50 or any attorney's fee. By way of affirmative defense, the defendant averred that the plaintiff had failed to inform the defendant of the selection of his appraiser and therefore had abandoned his effort to seek settlement by appraisal and had entered into an agreement with the defendant, by the terms of which the company was permitted to repair the damaged property; and that such repairs had been made by Byars-McPhail Oldsmobile Company of Natchez, and the defendant had paid to Byars-McPhail Oldsmobile Company the sum of $465.59 for said repairs, and an additional sum of $97.78 for additional repairs; and to the plaintiff an additional sum of $15 for a total release. The plaintiff in a replication to the defendant's answer, alleged that the defendant had wholly failed to have said automobile properly repaired; and that, because of the failure of the defendant to carry out its part of said agreement, the plaintiff considered said agreement breached.

The appellant in its assignment of errors has listed and argued nine points as grounds for reversal of the judgment of the lower court. It is not necessary that we consider each of these points separately in this opinion; and some of the points may be passed over entirely. The judgment must be reversed because of errors in the instructions granted to the plaintiff, and the insufficiency of the evidence to support the award of damages made by the jury. At the outset, as stated by the Court in its opinion in Potomac Insurance Company v. Wilkinson, 213 Miss. 520, 57 So.2d 158, 43 A.L.R.2d 321, it is manifest that the jury in this case was not authorized to find that the car suffered a total loss. The testimony is overwhelming in quantity and quality that the car could be repaired and at least a substantial restoration to complete function effected; and it was error for the court to submit the hypothesis of a total loss. In Potomac Insurance Company v. Wilkinson, supra, the Court held that the measure of loss to an automobile damaged, but not destroyed, by a collision is the difference between its reasonable market value immediately prior to the collision and...