Campbell v. Calvert Fire Ins. Co.

• Decision Date: 08 July 1959
• Docket Number: No. 17552,17552
• Citation: 109 S.E.2d 572,234 S.C. 583
• Parties: Eugene T. CAMPBELL, Respondent, v. CALVERT FIRE INSURANCE COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 572

109 S.E.2d 572

234 S.C. 583

Eugene T. CAMPBELL, Respondent, v. CALVERT FIRE INSURANCE COMPANY, Appellant.

No. 17552.

Supreme Court of South Carolina.

July 8, 1959.

William H. Blackwell, Florence, Ney B. Steele, Chesterfield, for appellant.

F. Turner Clayton, Cheraw, for respondent.

OXNER, Justice.

This is an action on a policy issued by the Calvert Fire Insurance Company indemnifying plaintiff, Eugene T. Campbell, against loss or damage to his automobile by collision or upset.

The fact that there was a collision is admitted. Plaintiff alleged that his automobile 'was destroyed' and sought judgment for $1,350, which he alleged was its value. The Company denied that the automobile was damaged to this extent; alleged that plaintiff, in violation of the terms of the policy, had the automobile repaired before reporting the loss, thereby denying it a reasonable opportunity of inspecting the car and determining the damage; and further alleged that the automobile had been completely repaired at a cost of $421.18, which it had offered to pay, less the $50 deduction specified in the policy. The trial resulted in a verdict for the plaintiff in the sum of $1,150. From the judgment entered thereon, defendant has appealed.

We shall first consider whether the Court erred in refusing defendant's motion for a nonsuit and later for a directed verdict, upon the ground that plaintiff, in violation of the terms of the policy, caused said automobile to be repaired before it had an opportunity to examine it, and failing in that motion, that recovery be restricted to the sum of $371.18, representing the amount of the repair bill less the $50 deductible.

The collision occurred in Suffolk, Virginia, on May 27, 1956. While plaintiff was waiting for a signal light, another car came up and ran into the rear of his Ford, knocking it into the rear of the car stopped in front of him. Soon thereafter plaintiff returned to his home in South Carolina and left the car in charge of his son who lived at Portsmouth, Virginia. The car was towed to a service station and about a week later taken to a repair shop in Suffolk operated by J. W. Gordon. Gordon says that plaintiff's son left him 'under the impression' that he was to repair the automobile. Both plaintiff and his son denied they ever authorized Gordon to repair the car. On the contrary, the son testified that Gordon was specifically told not to do anything to the car until he received further instructions. Be that as it may, Gordon went ahead and repaired the car at a cost of $421.18. About four or five weeks after the accident, Gordon notified plaintiff's son that the repairs had been completed and asked him to examine the car. Plaintiff's son says that although he told Gordon he had no authority to pass on the repairs, he did drive the car and found that it didn't 'crank right' that the gears were 'hard to change'; that the car was 'real hard to steer'; that the back wheels were out of line; and that the paint on the car 'was still a little rough'. He admitted, however, that none of this was called to Gordon's attention and that he made no complaint otherwise. At the time of the trial the repair bill had never been paid and the car was still in Gordon's possession.

There is a conflict in the testimony as to when the plaintiff reported the collision to the insurance company. Plaintiff testified that he reported it about four weeks after it occurred and that he did not do so earlier because he was trying to get a settlement from the driver of the car who hit him from the rear. The Company contends that the collision was not reported until July 7th. A few weeks later the Company's adjuster at Portsmouth inspected the car. He testified that after a careful examination he found that it had been properly repaired and was 'in perfect condition'. He then sent his file to the adjuster in Charlotte who contacted the plaintiff during the early part of August and offered to pay the repair bill less the deductible sum of $50 but plaintiff declined to settle on this basis. Shortly thereafter this action was commenced.

There was clearly no error in refusing the motion for a directed verdict upon the ground that plaintiff caused the car to be repaired before the Insurance Company had an opportunity of inspecting it and determining the damage. Assuming that this would constitute a violation of the terms of the policy, the overwhelming weight of the evidence is to the effect that Gordon made these repairs without the knowledge or authorization of plaintiff and the repair job was accepted and approved by the Insurance Company. Equally without merit is the contention that the Court should have granted the Company's request for a peremptory instruction limiting the amount of recovery to the repair bill less a deduction of $50. The testimony is conflicting on the question as to whether the car was properly repaired and substantially restored to the same condition it was in prior to the collision, which necessitated the submission of this issue to the jury.

It is further contended that the Court erred in refusing a motion for judgment non obstante verdicto upon the ground that the plaintiff failed to give the Insurance Company notice of the collision as soon as practicable after the occurrence, as required by the policy. That question was not raised in the pleadings, was not included among the grounds for a directed verdict and was raised for the first time during the charge of the trial Judge. It was stated in Standard Warehouse Co. v. Atlantic Coast Line Railway Co., 222 S.C. 93, 71 S.E.2d 893, 897, that a motion for judgment non obstante veredicto 'simply takes us back to the point in the trial when a motion was made for a directed verdict, and is limited to those grounds'. Therefore, the alleged failure to give notice of the collision as soon as practicable cannot now be urged as a ground for directing a verdict. However, since for the reasons hereinafter stated there must be a new trial and the question may arise again, we have no hesitancy in saying that under the evidence a motion for a directed verdict could not be granted on this ground. We had occasion recently in Brown v. State Farm Mutual Insurance Co., 233 S.C. 376, 104 S.E.2d 673, 676, to discuss the meaning of a phrase in an insurance policy requiring notice of an accident 'as soon as practicable'. Assuming in the instant case that the notice was not given as soon as practicable, there is abundant evidence of waiver of this provision. Phillips v. Equitable Life Assurance Society of the United States, 183 S.C. 431, 191 S.E. 226; American Mutual Fire Insurance Co. v. Green, 233 S.C. 588, 106 S.E.2d 265; Lusk v. American Century Insurance Co., 80 W.Va. 39, 91 S.E. 1078; American Automobile Insurance Ass'n v. Folsom, 119 Fla. 295, 161 So. 434; Lewis v. Fire Ass'n of Philadelphia, 7 Cir., 183 F.2d 647; Annotation 18 A.L.R.2d 487. As previously pointed out, the first time that any contention was made that notice of the collision was not given as soon as practicable was on the trial of the case. At no time prior thereto was there any suggestion of violation of this policy provision. There was never any denial of liability by the Company on this ground. On the contrary, the Company approved the repairs that had been made by Gordon and offered to settle on this basis.

The only other question we need consider is whether the Court erred in failing to grant a new trial upon the ground that the verdict was not supported by the evidence and not responsive to the Court's instructions as to the measure of damages.

The policy provides:

'The limit of the company's liability for loss shall not exceed either (1) the actual cash value of the automobile, or if the loss is of a part thereof the actual cash value of such part, at time of loss or (2) what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, with deduction for depreciation, or (3) the applicable limit of liability stated in the declarations.

'The company may pay for the loss in money or may repair or replace the...