Motors Ins. Corp. v. Smith

• Decision Date: 12 October 1953
• Docket Number: No. 38838,38838
• Citation: 67 So.2d 294,218 Miss. 268
• Parties: MOTORS INS. CORP. v. SMITH.
• Court: Mississippi Supreme Court

Page 294

67 So.2d 294

218 Miss. 268

MOTORS INS. CORP. v. SMITH.

No. 38838.

Supreme Court of Mississippi.

Oct. 12, 1953.

Hall & Callender, Columbia, H. H. Parker, Poplarville, for appellant.

Morse & Morse, Poplarville, Grayson B. Keaton, Picayune, for appellee.

LOTTERHOS, Justice.

This is a suit on an automobile policy issued by Motors Insurance Corporation, appellant, to appellee, covering a certain 1951 Chevrolet truck. In his declaration, appellee claims total destruction of the truck by collision or upset, and sues for $1,900, being an alleged loss of $1,950, less $50 deductible under the policy. There was a verdict for plaintiff, now appellee, in the amount of $1,984. Plaintiff entered a remittitur of $84, and judgment was rendered in the amount of $1,900. From this judgment, the insurance company appeals.

It was shown by the testimony that plaintiff purchased the truck on April 12, 1951, the total purchase price including sales tax being $1,948. On the same date, the policy of insurance was issued to him by appellant. Thereafter, said truck was damaged in a collision on June 4, 1951. According to an estimate which the insurance company offered in evidence, the cost of repairing the truck at that time was $274.71, which amount the insurance company proposed to pay under the policy, less the $50 deductible. The plaintiff declined to settle on that basis and no payment was ever made. Then, on July 8, 1951, at about 10 o'clock at night, the truck ran into a creek or small river from a bridge and was completely submerged in the water for about 11 hours. The truck had operated about 9,000 miles between April 12 and July 8, 1951.

After the July 8 episode, the insurance company had an estimate of repairs made by a garage man, who testified that the cost of repairing the truck, taking care of the damage done both on June 4 and July 8, and returning the truck to what he would consider to be as good condition as it was in prior to the damage and prior to being submerged under the water, was in the amount of $522.40. His testimony was supported by that of an employee of the insurance company who testified that he had experience in these matters.

As against this evidence, plaintiff testified that the truck had no value as a truck after the second accident, though there might be a few dollars worth of parts on it which would constitute 'junk' or 'used stuff,' and that in his opinion it was a total loss. His brother also testified to the same effect, stating that, in his opinion, after the accident the vehicle had no value as an automobile but only value as salvage. Both of them estimated the value before the wreck as from $1,900 to $2,000. Plaintiff also introduced an automobile mechanic, who stated that he had examined the truck for about fifteen or twenty minutes on the day of the trial but did not try to start the motor. He never saw the truck until that day. He testified that it was his opinion that the vehicle had no value as a truck but would have salvage value of between $125 and $175. He pointed out numerous matters of damage to the truck which he had observed and stated that submersion under the water for 11 hours would do a large amount of unseen damage.

We find it unnecessary to state in detail the testimony of the three witnesses for plaintiff. It is sufficient to state that, although these witnesses were of the opinion that the vehicle was a total loss, as a truck, except for salvage, and although they pointed out many specific parts that were damaged or broken and testified that the submersion for 11 hours would cause great unseen damage, yet none of them made a complete inspection of the vehicle and its internal mechanism. They admitted that various parts--such as, headlights, transmission, battery, motor, wheels, brakes, tie rods, steering wheel and tires--were either not inspected or showed no damage.

The plaintiff was allowed to testify over objection that he had purchased an extra tire and wheel for the truck costing $50 and had put a wooden body on it at a cost of $70, exclusive of his own labor.

The principal contention of the insurance company on appeal is that the main instruction given the plaintiff is erroneous and prejudicial. There are several points of attack.

We conclude that this instruction should not have been granted. In the first place, it told the jury that if they believed that the truck was 'injured by collision' prior to july 8, 1951, and that on that date 'the auto truck was destroyed by collision or upset' the actual cash value was covered by the policy. This was error on this record. The proof did not show a total destruction of the truck, and would not support such a finding. Instructions must be based upon the evidence and upon a theory supported by the evidence. Rex...