State Farm Mut. Auto. Ins. Co. v. Smith, 44016

• Decision Date: 12 March 1969
• Docket Number: No. 44016,No. 1,44016,1
• Citation: 119 Ga.App. 447,167 S.E.2d 610
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Troy E. SMITH
• Court: Georgia Court of Appeals

Page 610

167 S.E.2d 610

119 Ga.App. 447

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Troy E. SMITH.

No. 44016.

Court of Appeals of Georgia, Division No. 1.

March 12, 1969.

Rehearing Denied March 26, 1969.

H. Dale Thompson, Larry M. Broadfoot, Dublin, for appellant.

No appearance for appellee.

Syllabus Opinion by the Court

WHITMAN, Judge.

The basic dispute in this case is over the proper measure of damages under the collision coverage of an automobile insurance policy. Specifically, the policy sued on contains the following provisions: 'The Mutual Insurance Company * * * agrees with the named insured, subject to the provisions of the policy: Coverage G-Deductible Collision. To pay for loss to the owned automobile caused by collision but only for the amount of each such loss in excess of the deductible amount ($50) stated in the declarations as applicable hereto * * * Limits of Liability-Settlement Options-Coverages * * * G. The limit of the company's liability for loss shall not exceed the actual cash value of the property, or if the loss is of a part thereof the actual cash value of such part, at time of loss, nor (sic) what it would then cost to repair or replace such property with other of like kind and quality, less depreciation and deductible amount applicable * * * The company may at its option pay for the loss in money or may repair or replace the property or such part thereof as aforesaid * * *.'

Plaintiff wrecked his car, a 1966 Plymouth, in a collision with a train. The loss was stipulated between the parties as accidental and within the coverage of the policy. The defendant offered to pay plaintiff the cost of repair less the deductible. Plaintiff insisted that the car was not capable of being restored to its former value by repair and maintained that he was entitled to the difference in the market value of the car immediately before and immediately after the collision, less the deductible. The defendant insisted that it had the right tor epair under the policy; that its liability was not as plaintiff contended. Plaintiff brought suit to recover under the policy and also for penalties and attorney's fees.

The evidence offered by plaintiff at the trial was that the car had a value when new of about $3,800 and that it was about one year old at the time of the loss, in good condition, and worth about $2,800 to $2,950. Plaintiff also showed that a demand had been made on the defendant for $2,895 with defendant to receive the salvage. The testimony relating to value came from the car dealer who had sold the plaintiff the car. This person also testified that in his opinion the car could not be restored by repair to its value before the collision. It also appears from the evidence that plaintiff obtained several estimates for the car in its wrecked condition, i.e., as salvage, and sold it to the highest bidder at $650. Photographs were admitted into evidence showing the extent of the damage to the car.

The evidence for the defense was that the defendant had offered to repair the car; that three estimates had been obtained. There was testimony by the defendant's adjuster and by some of those who had made repair estimates or bid for the salvage that the car could be repaired and restored reasonably to its former condition.

The jury returned a verdict in favor of plaintiff for a gross loss of $2,895 less $700 for salvage and deductible or $2,195 net. In addition, the jury awarded plaintiff $300 attorney's fees, making a total recovery of $2,495.

The defendant appeals from the denial of its motion for new trial and enumerates several matters as error. Held:

1. The first enumeration of error is the denial of defendant's motion for new trial made upon the general grounds only.

The obligation of an insurer under a contract containing such language as is set forth above, where the insurer elects to...