Lumpkin v. Allstate Ins. Co.

• Decision Date: 26 February 1968
• Docket Number: No. 18762,18762
• Court: South Carolina Supreme Court
• Parties: Mamie M. LUMPKIN, Respondent, v. ALLSTATE INSURANCE COMPANY, Appellant.

Page 852

159 S.E.2d 852

251 S.C. 19

Mamie M. LUMPKIN, Respondent, v. ALLSTATE INSURANCE COMPANY, Appellant.

No. 18762.

Supreme Court of South Carolina.

Feb. 26, 1968.

Watkins, Vandiver, Kirven, Long & Gable, Anderson, for appellant.

W. Jerry Fedder, Seneca, Edward H. Ninestein, Walhalla, for respondent.

BUSSEY, Justice.

In this action for conversion of an automobile the jury returned a verdict for the plaintiff for $1,300 actual damages and $3,000 punitive damages. Appeal is from an order of the trial court denying defendant's motion for judgment non obstante veredicto, it being contended by the defendant that the evidence was insufficient, in several particulars, to prove a conversion.

It is elementary that, in considering whether defendant was entitled to a judgment non obstante veredicto, all of the evidence, and the inferences reasonably deducible therefrom, have to be viewed in the light most favorable to the plaintiff. We, accordingly, proceed to state the facts disclosed by the record, and the inferences reasonably deducible therefrom, in the light of the foregoing principles.

On September 25, 1965, plaintiff was the owner of a 1964 Plymouth sedan automobile which was only thirteen months old and which had a market value of $3,000. The said automobile was insured with the defendant under a policy which, among other things, afforded plaintiff one hundred dollar deductible collision coverage. On the night of September 25th plaintiff's automobile was in a collision, as a result of which the entire right side thereof was demolished. The driver of a wrecker who came to the scene took the plaintiff's automobile to a place of business known as Sanders Body and Fender Shop in Seneca, South Carolina, operated by a Mr. Hollis Hunnicutt. Such was done without either the express permission or objection of plaintiff. Plaintiff was uncertain what to do with her car in its wrecked condition. The wrecker driver told her that Sanders' place was where he usually took wrecked cars and that he would take hers there and leave it, to which statements plaintiff interposed no objection.

The collision occurred on a Saturday night and plaintiff was unable to make contact with defendant's agent, who had sold her the policy, until Wednesday of the following week, the agent being until that time unavailable. A report of the accident was then made, but no adjuster for defendant came to Seneca until October 13th, at which time defendant's adjuster contacted Hunnicutt, and presumably the agent who had written the policy, but did not contact the plaintiff. Hunnicutt gave the adjuster a repair estimate in the amount of $1,104.80, and the agent of defendant authorized Hunnicutt to proceed with the repairs. No repairs were ever authorized or agreed to by plaintiff. The adjuster left with Hunnicutt a draft for the amount of the repair bill, less the deductible portion, payable to both Hunnicutt and plaintiff, which had on the back thereof an endorsement constituting a full release by the plaintiff, and a separate full release to be signed by the plaintiff, with instructions to Hunnicutt that he was not to deliver the car to the plaintiff in the absence of her executing these documents.

It is clear that, even though repaired by Hunnicutt, the plaintiff's car was substantially depreciated in value as a result...