Canal Ins. Co. v. Howell, 43545
| Decision Date | 24 May 1965 |
| Docket Number | No. 43545,43545 |
| Citation | 175 So.2d 517,253 Miss. 225 |
| Parties | CANAL INSURANCE COMPANY v. H. L. HOWELL, d/b/a Howell Lumber Sales. |
| Court | Mississippi Supreme Court |
Satterfield, Shell, Williams & Buford, K. Hayes Callicutt, and Walter J. Gex, III, Jackson, Mitchell M. Lundy, Grenada, for appellant.
Carothers & Fedric, Grenada, for appellee.
Appellee H. L. Howell, doing business as Howell Lumber Sales, recovered a judgment in the Circuit Court of Grenada County against appellant, Canal Insurance Company, in the sum of $4,003.75. From this judgment Canal Insurance Company has appealed to this Court.
This is the second appearance of this case in this Court. The former opinion rendered by us is numbered 42,875, and is reported in 248 Miss. 678, 160 So.2d 218 (1964). The cause was reversed and remanded for a new trial for reasons set out in the opinion.
This is a suit on an insurance contract, and the facts involved in this case are detailed in our former opinion. We will not set them out again except as may be necessary to pass upon the points raised by this appeal.
Appellant in its assignment of errors assigns twelve reasons for reversal. Some of these assignments are not urged in its brief, and we will pass on only those which are urged. Points 2, 3 and 4 deal with instructions, and we will consolidate these points for purposes of our decision.
Appellant urges that the trial court was again in error in admitting evidence as to repairs of the machine and the alleged cost of transporting the machine to the company for repairs. The proof shows that the machine involved was a line bar resaw being transported in appellee's truck from McDonough Saw Company in Eau Claire, Wisconsin to Philadelphia, Mississippi. When the driver of the truck was attempting to drive under an overpass in Davenport, Iowa, the tarpaulin covering the machine and the top part of the machine struck the overpass. The machine was damaged, and upon instruction of appellee, the driver of the truck proceeded to Grenada, Mississippi. The only testimony relative to the necessity of repairs and the cost of repairs is the testimony of appellee. The proof shows that appellee examined the machinery after it was brought back to Grenada and ascertained that it was damaged. Appellee had been engaged in sawmill business a number of years and was familiar with sawmill machinery. This particular machine was a new type, and the first of its type appellee had seen. He had no difficulty in determining that it had been damaged, and that repairs were necessary. However, he did not make any effort to determine the extent of the damage. It was his decision that the machine should be transported to the manufacturer to be repaired. Appellee did not see the machine again after it left Grenada until it was in operation in Philadelphia. From his testimony it is certain that some repairs to the machine were necessary, but we can find nothing in his testimony to show the extent of the necessary repairs. There is no other evidence on this point. The only evidence relative to the cost of repairs and the reasonableness of the cost is appellee's testimony. He introduced into evidence copies of the bill rendered by McDonough Company for the repairs. Appellant objected to the introduction of this bill for repairs for the reason that the cost of repairs could not be proven in this manner. The objection was overruled, and this action on the part of the trial court was error. Appellant was entitled to cross-examine the person who was in charge of making the repairs as to the extent of the repairs, whether all such repairs were necessary to restore the machine to its former condition, and whether the cost of such repairs was reasonable. We are of the opinion that appellee failed to meet the burden of proof to show that all of the repairs were necessary, and that the cost therefor was reasonable. We said in our former opinion in discussing the necessity of carrying the machine back to the manufacturer for repairs that this was a question for the jury to determine, and this issue was properly submitted to the jury.
Appellant contends that the trial court was in error in granting the following instruction:
'The Court instructs the jury for the Plaintiff, H. L. Howell, that it is a well settled rule of law that insurance policies are always construed more strongly against the insurance company and more favorably for the insured.'
Appellant contends that this instruction is not a correct statement of true legal principle, and that it is an abstract statement of law and not related to the facts in this case. App...
To continue reading
Request your trial
-
Cincinnati Insurance Company v. Wilson
...an exclusion to the homeowner's insurance policy "present[ed] a question of fact for the jury"); Canal Ins. Co. v. Howell , 253 Miss. 225, 233, 175 So. 2d 517, 521 (1965) (holding that whether a loss fell under an exclusion to an insurance policy was "a question of fact ... for the jury to ......
-
Associated Doctors Health & Life Ins. Co. v. Hanks, 1 Div. 180
...Mutual Cas. Co. 143 Conn. 269, 121 A.2d 622; Equitable Life Assur. Soc. v. Wells, 6 Cir., 101 F.2d 608; Canal Ins. Co. v. Howell, 253 Miss. 225, 175 So.2d 517 (1965). Moreover the construction of an insurance policy is not the function of the Immediately following the giving of the above ch......
-
Harris v. State, 51876
...consider any matter outside the record. Brown v. Elton Chalk, Inc.,, 358 So.2d 721 (Miss. 1978). We stated in Canal Insurance Company v. Howell, 253 Miss. 225, 175 So.2d 517 (1965), that it is up to the appellant to see that instructions questioned are in the record so that this Court can i......
- Texaco, Inc. v. Musgrove, 43540