Cobb-Kirkland Motor Co. v. Rivers

• Decision Date: 17 March 1971
• Docket Number: 3 Div. 20,COBB-KIRKLAND
• Citation: 248 So.2d 725,46 Ala.App. 686
• Parties: MOTOR COMPANY, Inc. v. Lee Vonnie RIVERS.
• Court: Alabama Court of Civil Appeals

Page 725

248 So.2d 725

46 Ala.App. 686

COBB-KIRKLAND MOTOR COMPANY, Inc. v. Lee Vonnie RIVERS.

3 Div. 20.

Court of Civil Appeals of Alabama.

March 17, 1971.

Rehearing Denied April 7, 1971.

Calvin M. Whitesell, Montgomery, for appellant.

Bolton & Sizemore, Sylacauga, for appellee.

WRIGHT, Judge.

Suit was brought by plaintiff, Lee Vonnie Rivers, appellee here, in the Circuit Court of Montgomery County, Alabama, against defendant, Cobb-Kirkland Motor Company, Inc., a corporation, appellant here. The amended complaint contained four counts. Appellant filed a written plea in short by consent. Judgment entry recites that on the day of trial, defendant refiled demurrer to the amended complaint; that the demurrer was argued by counsel and was overruled by the court.

During the trial, plaintiff withdrew Count IV of the complaint and the case went to the jury on amended Counts, I, II and III. Count I claimed damages from defendant for negligently failing to obtain a policy of collision insurance for one year on an automobile sold to plaintiff by defendant after defendant voluntarily assumed the duty to do so. Count II claimed damages for the value of an automobile which defendant insured against loss by collision for a period of one year, which automobile was subsequently destroyed or damaged by collision. Count III claimed damages for breach of an oral agreement to obtain collision insurance for one year upon an automobile purchased by plaintiff from defendant.

Upon trial, a general verdict and judgment for plaintiff was rendered awarding damages in the amount of $2475.00. After denial of motion for new trial, defendant appeals.

The evidence tended to show that appellee purchased from a salesman of appellant an automobile on November 1, 1968. At the time of purchase the salesman was informed by appellee that she did not have a driver's license but had only a learner's permit. As a part of the transaction of sale, there was discussed the securing of a policy of collision insurance. An application for such insurance was filled out by the salesman and signed by the appellee. The application was on a form under which coverage could be provided by either Motors Insurance Corporation or a CIM Insurance Corporation. The latter corporation could give coverage in cases which would not qualify for coverage by Motors Insurance Corporation, and such coverage would be at a substantially higher rate.

Appellee, at the time of sale of the automobile and the making of the application for collision insurance, paid a premium charge of $84.00 to appellant and was informed that the application was for a policy of collision insurance with Motors Insurance Corporation for a term of one year. Appellee's testimony was that the salesman informed her she would be 'covered for one year.'

Appellee further stated that the salesman informed her she did not need a driver's license to purchase the car, but to get one. Appellee secured a driver's license on November 13, 1968.

Prior to November 16, 1968, appellee received a letter from Motors Insurance Corporation informing her they could not accept her request for insurance but that she was covered until November 16, 1968, so that she could make other arrangements for insurance. The letter indicated she could apply for coverage by CIM Corporation.

Upon receipt of the letter, appellee called Cobb-Kirkland and informed some unidentified person there that her insurance application had been refused. She requested to speak to the salesman who had sold her the car. She was informed that he was no longer employed by appellant.

Motors Insurance Corporation returned the premium paid by appellee to appellant by check dated November 7, 1968. Appellant returned the premium to appellee on December 16, 1968. Appellee's automobile was damaged in a collision on December 13, 1968.

Appellant begins his brief on appeal with argument addressed to Assignment of Error 32. Assignment 32 charges error in the refusal of the court to give the following requested written charge.

'10. The Court charges the jury that if you believe the evidence in this case your verdict should be for the defendant as to Count 2.'

The argument of appellant is that it was entitled to have this charge given because Count 2 of the complaint charges that appellant by contrary insured the automobile of appellee against loss by collision and there was not a scintilla of evidence that appellant insured appellee's automobile.

The lengthy argument of appellant as to the error committed by the court in refusing this charge, which appellant characterizes as the affirmative charge with hypothesis, fails to consider the reason why the refusal to give the charge was not error and cannot be considered error on appeal. That reason is simply that the charge was bad in form.

The Supreme Court of Alabama, in a long line of cases has held that refusal of such a charge in a case in which there is a complaint containing more than one count is not error. The following was stated in the case of Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785:

'It has long been settled by our decisions that where a complaint contains several counts, special requested written charges which direct the jury if they believe the evidence they should find for the defendant on one or the other of said counts, are properly refused. * * *'

The rule stated was confirmed by the decisions in General Finance Corporation v. Bradwell, 279 Ala. 434, 186 So.2d 150, and Hercules, Inc. v. Jones, 284 Ala. 692, 228 So.2d 9.

The reason for the rule is stated in Mobile & O.R. Co. v. George, 94 Ala, 199, 10 So. 145, 154, as follows:

'* * * The complaint, as amended, contains six counts, as to each of which a similar charge was separately asked. Had there been but one count, or, being several, had the charge upon the effect of the evidence applied to the whole complaint, there could be no objection to such conclusion of the charge, but, when there are two or more counts, the phraseology is subject to criticism. It is calculated to impress the jury with the idea that a separate verdict must be returned as to each count, though under some they may find for the plaintiff. Its tendency is to mislead or confuse, and requires explanation. * * *'

If on the hypothesis stated in appellant's requested charge, the plaintiff was not entitled to recover, the form of the charge should have been that the jury should not find for the plaintiff or should not find against the defendant on Count II. Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247.

Assignments of Error 33 and 34 pertain to refusal by the court to give the same charge as that above in regard to Counts I and III. The refusal of such charges was not error for the reason previously stated.

Assignment of Error 15 is that there was a fatal variance between pleadings and proof as to Count II. The variance referred to in argument is that plaintiff laid his cause of action in the code form for a suit upon a policy of insurance; that 'policy' imports a written policy of insurance and that plaintiff failed to prove or introduce a written policy.

Accepting, but not conceding the legal truth, that appellant is correct in his argument that proof of a written policy is necessary under the code form and there was no such proof, appellant would not be entitled to claim error on this appeal.

Only adverse rulings of the trial court are subject to assignment of error and subsequent review on appeal. Thornton v. Tutt, 283 Ala. 72, 214 So.2d 425.

The method of establishing reviewable error based...