Emmco Ins. Co. v. Howell, 1 Div. 18
| Decision Date | 30 May 1963 |
| Docket Number | 1 Div. 18 |
| Citation | 154 So.2d 28,275 Ala. 270 |
| Parties | EMMCO INSURANCE COMPANY v. Clarence S. HOWELL. |
| Court | Alabama Supreme Court |
Johnston, Johnston & Courtney, Mobile, for appellant.
Howell, Johnston & Langford, Mobile, for appellee.
The appellee here, was the plaintiff below. He brought suit against the appellant here, defendant below, to recover damages allegedly due under an insurance policy whereby the appellant had insured the appellee and Associates Discount Corporation 'as their interests may appear' against any loss due to collision of an automobile purchased by the appellee.
Trial resulted in a verdict for the appellee, damages being assessed at $2,181.91, and judgment was entered pursuant to the verdict. Appellant's motion for a new trial being overruled, appeal was perfected to this court.
From the opening statements through the arguments to the jury this record is continuously heckled by the lengthly colloquies and bickerings between counsel, and a considerable portion of the labor of reviewing this record has been to separate the grains of evidence from the chaff of these wranglings.
The plaintiff below, appellee here, purchased a 1959 Dodge automobile from Big Three Dodge, Inc., of Mobile. The bill of sale given the appellee on the date of sale, 27 February 1960, shows that list price to be $3,421.50. Optional equipment and accessories added to the car amounted to $1,541.85; sales tax $67.62; freight and handling $118.00, or a total purchase price of $5,148.97.
A credit of $1,700 on the purchase price was allowed as a trade-in on a 1954 Oldsmobile owned by the appellee.
Other than the $1,700 trade-in allowance, the balance of the purchase price of the Dodge was financed by the Associates Discount Corporation.
The defendant below, Emmco Insurance Company, issued a policy of insurance indemnifying the appellant as purchaser, and Associates Discount Corporation, 'as their interests may appear,' for loss or damage to the Dodge automobile by collision or upset.
The liability under the policy was limited to the actual cash value of the Dodge at the time of loss or damage.
Two weeks and two days after purchasing the Dodge automobile the appellee wrecked it to the extent that it was a total loss except for a salvage value of $250.00.
After the wreck Emmco paid to Associates $3,050 and turned over to them the wrecked Dodge, in settlement of their claim. Emmco maintains this was the cash value of the Dodge at the time it was wrecked. The plaintiff maintains that the cash value of the car was $5,148.97. Hence this suit.
All of the assignments of error pertain to the action of the lower court in denying appellant's efforts to establish the reasonable market value of the Oldsmobile accepted as a trade-in on the Dodge automobile. It is appellant's insistence that the reasonable market value of the Oldsmobile was a factor going to the actual cash value of the Dodge at the time it was purchased, and that evidence of the actual market value of the Oldsmobile should have been allowed.
By innumerable rulings the court made it clear that it considered the reasonable market value of the Oldsmobile to be irrelevant and immaterial in a determination of the cash value of the Dodge at the time it was destroyed.
Appellant's assignments of error Nos. 1 and 2 are as follows:
'(1) The Court erred in sustaining the objection of the counsel for the plaintiff to the following question propounded to the plaintiff as a witness, which reads as follows:
'To which ruling of the Court the Defendant excepted.
'(2) The Court erred in sustaining the objection of counsel for the plaintiff to the following question propounded to the plaintiff as a witness, which reads as follows:
'To which ruling of the Court the Defendant excepted.'
The above questions were propounded to the appellee during his cross examination. The appellee had testified on his direct examination that he had bought and sold a number of different automobiles during his lifetime and was familiar with the reasonable market value of automobiles, and on his cross examination prior to the above two questions he had testified he was qualified as an expert regarding the value of automobiles. He then testified that the actual cash value of the Dodge automobile immediately before the collision was $5,148.97. We note this was the exact figure shown on the bill of sale as being the purchase price.
As to the questions made the basis of assignments Nos. 1 and 2, counsel for appellee argues that no error resulted from the sustension of appellee's objections to the questions since at no time or place a valuation was fixed, and further, the appellant had the benefit of evidence of the value of the Oldsmobile through the testimony of Fred Roan, President of Big Three Dodge, Inc., that they had 'scored' it at 'two-fifty,' and that this $250.00 was an appraised value of the Oldsmobile.
Just preceding the questions set forth in assignments Nos. 1 and 2, supra, the appellee had testified that the Dodge automobile had not depreciated in value at the time of the wreck from the price shown on the bill of sale, i. e., $5,148.97, and that was the reasonable cash value of the Dodge immediately before it was wrecked.
The appellee was entirely familiar with the transaction concerning the purchase of the Dodge, and the price he paid. The trade-in allowance of $1,700 for the Oldsmobile was shown on the bill of sale for the Dodge introduced in evidence by the appellee. It would, in our opinion, be hypertechnical to conclude that the time and place of reasonable value of the Oldsmobile was not understood by all parties, and the jury, at the time the question set forth in assignments of error No. 1 was propounded. As to the question set forth in assignment of error No. 2, the question referred specifically to the bill of sale which, of course, showed the time and place for which the value opinion was sought by the appellee.
As to appellee's contention that assignments Nos. 1 and 2 are without merit because the appellant had the benefit of the same testimony in Mr. Roan's testimony that the Oldsmobile was 'scored' at $250.00, it is sufficient to point out that this testimony was excluded from the jury on motion of counsel for appellee.
Assignments of error Nos. 1 and 2 being in our opinion entirely sufficient to invoke our review, we come now to consider the substance of the points raised by these assignments, that is, whether the court erred in the sustension of appellee's objections to the questions propounded by the appellant seeking to elicit testimony as to the actual reasonable value of the Oldsmobile at the time it was traded in on the Dodge as shedding light on the cash value of the Dodge.
Under the policy the appellant was liable to indemnify to the extent of the cash value of the Dodge at the time of...
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