State Farm Mut. Auto. Ins. Co. v. Key, 6 Div. 84

• Decision Date: 18 November 1970
• Docket Number: 6 Div. 84
• Citation: State Farm Mut. Auto. Ins. Co. v. Key, 241 So.2d 332, 46 Ala.App. 303 (Ala. Civ. App. 1970)
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, v. Lannie KEY.
• Court: Alabama Court of Civil Appeals

Page 332

241 So.2d 332

46 Ala.App. 303

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, v. Lannie KEY.

6 Div. 84.

Court of Civil Appeals of Alabama.

Nov. 18, 1970.

Tweedy, Jackson & Beech, Jasper, for appellant.

Bill Fite, Hamilton, for appellee.

BRADLEY, Judge.

The appeal in this case resulted from a judgment being rendered against appellant and for appellee on a policy of insurance covering an automobile belonging to appellee.

Complaint was filed in the Circuit Court by appellee against appellant seeking to recover for the total loss of an automobile, said loss allegedly covered by a policy of collision insurance issued by appellant.

A demurrer was filed to the one-count complaint, but was not ruled on by the court prior to trial, nor later. No objection was made to the failure of the court to rule on said demurrer.

Trial was had before the court and jury, with a verdict being returned on February 11, 1970 in favor of appellee for $930.00. On the same date judgment was entered by the court on the jury verdict.

Thereafter, on March 17, 1970, appellant filed a motion for new trial. The motion was continued by order of the court until March 30, 1970. Then on August 5, 1970, the court overruled the motion for new trial.

On April 20, 1970 the appellant took an appeal from the judgment of the court entered on February 11, 1970, and on the same day filed a supersedeas bond in the case.

There were seven assignments of error raised on this appeal. However, assignment of error six was not argued in brief and is considered by this court to have been waived. Supreme Court Rule 9(d).

Assignments of error one, two, four and five relate to the error committed by the trial court in rendering judgment for the appellee and against the appellant due to the insufficiency of the evidence to support a judgment.

As we see it, these four assignments of error raise the question of the weight and sufficiency of the evidence to support the judgment entered by the trial court. We do not believe that we can decide this question.

It is settled in Alabama that in the absence of a motion for a new trial the question of the weight or sufficiency of the evidence is not before this court for review where there has been a jury trial in the court below. Foster v. Shepherd, 269 Ala. 94, 110 So.2d 894; Water Works and Sewer Board of Fairhope v. Brown, 268 Ala. 96, 105 So.2d 71; and Aldridge v. Seaborn, 253 Ala. 603, 46 So.2d 424.

While the record reveals that appellant did make a motion for new trial, it was made too late, i.e., it was made more than thirty days after the judgment was rendered by the trial court. Title 7, Section 276 and Title 13, Section 119, Code of Alabama 1940, as Recompiled 1958. The judgment was entered on February 11, 1970, and the motion for new trial was not filed with the court until March 17, 1970.

Furthermore, it has been said that where it affirmatively appears, as it does from the record in the case at bar, that a motion for a new trial was not filed within thirty days from the rendition of judgment, the trial court's order overruling said motion is null and void. Harrison v. State, 40 Ala.App. 377, 113 So.2d 694.

Also, the record shows that the motion for new trial was overruled by the trial court on August 5, 1970, yet the supersedeas bond was filed on April 20, 1970.

Upon an appeal being taken to the proper appellate court from the judgment of the trial court and the filing of a supersedeas bond to stay the effectiveness of said judgment pending appeal, the trial court, upon the filing of the supersedeas bond, loses jurisdiction over the motion for new trial and an order thereafter made overruling said motion is null and void. Johnsey-Reed Bros. Coal Co. v. Sanders, 275 Ala. 339, 154 So.2d 923.

However, the appellant in its assignments of error did not include the order overruling the motion for new trial as one of the errors committed by the trial court.

This court can consider as error only those rulings of the trial court specifically assigned as error. Supreme Court Rule 1.

The ruling on the motion for a new trial was not assigned as one of the errors committed by the trial court; and, therefore, the motion for a new trial not being assigned as error, the weight and sufficiency of the evidence to support the judgment of the trial court is not before us for review.

However, if this court could review the weight and sufficiency of the evidence upon which the judgment of the trial court was based, we would be required to affirm the verdict and judgment below because after a careful reading of the transcript, we could not say that the judgment of the trial court was plainly and palpably wrong. This finding would have to be made before we could reverse said judgment on the ground that the weight and sufficiency of the evidence would not support it. Allred v. Dobbs, 280 Ala. 159, 190 So.2d 712; and Bagley v. Green, 277 Ala. 118, 167 So.2d 545.

In its assignment of error three, appellant says that the trial court erred in sustaining an objection to the following question:

'Tell the Court and the Jury whether or not, in your opinion, that had you done that work on it that way, that you would have replaced or repaired the damaged parts on that car with like kind and quality?'

This question was asked of a repairman who was employed at a garage where the damaged vehicle in question was taken after it was wrecked, and who had examined the car and had given an estimate of the cost to have it repaired.

After the objection to this question was sustained by the trial court, the appellant failed to make any showing as to what the answer would have been or, more importantly, how it would have been injured or prejudiced by the court's refusal to permit the witness to answer the question asked of him.

The Supreme Court of Alabama has said many times that injury must be affirmatively shown with no presumptions being indulged. And in Decker v. Hays, 282 Ala. 93, 209 So.2d 378, it said:

'Assignments of error in rulings on evidence presents nothing for review where the questions to which they relate show no injury from such rulings.'

See also Flowers v. Graves, 220 Ala. 445, 125 So. 659; Morgan Hill Paving Co. v. Pratt City Sav. Bank, 220 Ala. 683, 127 So. 500; and Berry v. Dannelly, 226 Ala. 151, 145 So. 663.

Assuming, however, that there was error in the court's refusal to allow the answer to be made, it would not be reversible error, as there could be no injury, because the witness had already answered substantially the same questions when he testified that he would have guaranteed his work, to put the car back in as good shape as it was in, and to repair the car for the price of $1,371.39, using new parts. Berry v. Dannelly, supra.

Appellant in its assignment of error seven says the trial court erred in refusing to give charge number 4, which was an affirmative charge with hypothesis, and it reads as follows:

'If, after considering all the evidence in this case, you are reasonably satisfied therefrom that the automobile made the basis of this suit could have been repaired with parts of like kind and quality for less than $2500.00, the Court charges the jury that you must return a verdict for the defendant.'

The argument made by appellant in support of this assignment is that the insurance policy gave it an option to elect to pay the amount of the loss in money or to pay for the repairs made to the damaged vehicle or to pay for replacing it or any part thereof. In support of this argument, the appellant says that the evidence shows that the repair estimate made by the mechanic who examined the car totaled...