Spivy-Johnson Portrait Co. v. Belt Automobile Indemnity Ass'n

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 993.
• Citation: 99 So. 80,210 Ala. 681
• Parties: SPIVY-JOHNSON PORTRAIT CO. v. BELT AUTOMOBILE INDEMNITY ASS'N.
• Court: Alabama Supreme Court

99 So. 80

210 Ala. 681

SPIVY-JOHNSON PORTRAIT CO. v. BELT AUTOMOBILE INDEMNITY ASS'N.

6 Div. 993.

Supreme Court of Alabama

January 17, 1924

Rehearing Denied Feb. 7, 1924.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action on an automobile fire insurance policy by the Spivy-Johnson Portrait Company against the Belt Automobile Indemnity Association. From a judgment granting defendant's motion for a new trial, plaintiff appeals. Affirmed.

William S. Pritchard and J. D. Higgins, both of Birmingham, for appellant.

Davis &amp Locke and Metz & Griffith, all of Birmingham, for appellee.

BOULDIN J.

The action is founded on an automobile fire insurance policy. Common counts and counts in trover were added, relating to the same subject-matter. The appeal is from the judgment of the court below granting a new trial on motion of defendant.

One ground of the motion was that the verdict was excessive.

This court will not disturb the action of the court below in such cases unless the evidence plainly and palpably supports the verdict. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Newman v. Morgan, 202 Ala. 606, 81 So. 548.

This issue brings before us the question of the amount recoverable under the contract of insurance.

The policy first insures against loss or damage to the automobile by fire "in an amount not exceeding $1,508." Then follows a schedule of maximum amounts allowed on an automobile purchased new, one purchased secondhand, and one on which a special amount is allowed. These schedules provide for a monthly depreciation of maximum values during the running of the policy, the per centum of depreciation varying in different classes of cars. The stated amount, $1,508, is manifestly figured on the first schedule applying to a car purchased new, viz. 90 per cent. of the list price of $1,675. Deducting the depreciation to the time of the loss, 1 1/2 per centum per month, and adding interest to date of trial, the verdict of $1,750 would not be excessive for a total loss. But these provisions relate to the maximum coverage. No matter what the actual loss may be, the insurance is limited to these scheduled amounts. The actual amount recoverable not exceeding these maximums, is fixed by the liability clause, which says:

"The association shall not be liable beyond the actual cash value of the property destroyed or damaged as of the time of destruction, loss, or damage." The only direct evidence of such value found in the record is that of plaintiff's witnesses Hammond and Lyle, both of whom fix the value at $1,250. This amount, with interest, is materially less than the verdict.

The common counts and the counts in trover sought recovery for the value of the damaged car alleged to have been converted by the defendant. This, added to the partial loss, on which the counts proceed, could not, under the evidence, make the total recovery greater than the actual value of the car immediately before the fire.

Neither would an unconditional promise to pay the loss, as set up in a special count, extend beyond the secured loss.

We cannot, therefore, find reversible error in the ruling of the court granting a new trial.

The numerous other rulings on pleading and evidence need not be here reviewed in detail. A few principles, mostly admitted in briefs, will furnish some guide to the trial court, if the case comes to another trial.

The knowledge of Hammond, the agent of the insurer, who took the application for the policy, that he personally held...