Stuyvesant Ins. Co. v. Driskill
| Decision Date | 07 December 1951 |
| Docket Number | No. 15294,15294 |
| Citation | 244 S.W.2d 291 |
| Parties | STUYVESANT INS. CO. v. DRISKILL. |
| Court | Texas Court of Appeals |
John F. Harrison and J. Alex Blakeley, both of Dallas, for appellant.
Garrett & Garrett, of Fort Worth, for appellee.
Bayne E. Driskill purchased a new Mercury automobile in March, 1950, and procured a theft insurance policy thereon from Stuyvesant Insurance Company, appellant.
On December 17, 1950, the automobile was stolen from a parking lot in Austin, Texas. The policy was in force and effect at all pertinent times hereto.
Appellee immediately notified appellant of the theft. On January 3, 1951, appellee filled out and returned proof of loss to appellant. On March 14, 1951, which was more than sixty days after the proof of loss was submitted to appellant and eighty-seven days after the theft of the automobile, appellee filed suit against appellant for the actual cash value of the automobile as of date of theft. Judgment was rendered for appellee on the 7th day of June, 1951.
The appellant, in its first two points, alleges error of the court in rendering a judgment allowing appellee to abandon the automobile to appellant contrary to the provisions of the policy, and in failing to limit appellee's recovery to the measure of damages provided by the policy.
The policy contained the following provisions:
'The limit of the company's liability for loss shall not exceed the actual cash value of the automobile, or if the loss is of a part thereof the actual cash value of such part, at time of loss nor what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, * * *.
'The Company may pay for the loss in money or may repair or replace the automobile or such part thereof, as aforesaid, or may return any stolen property with payment for any resultant damage thereto at any time before the loss is paid or the property is so replaced, * * * but there shall be no abandonment to the Company.'
The automobile was located by law enforcement officers and delivered to the appellant approximately a month after suit was filed. It has never been in possession of the appellee since the date of the theft.
The automobile had been wrecked before recovery. The appellant placed it in a repair shop and carried on some negotiations with appellee, but no settlement was ever reached.
The trial court found that appellee had at all times been ready and willing and had offered to accept delivery in its present condition and give credit to appellant on his claim, but appellant had refused delivery of possession. The evidence being sufficient to uphold the trial court's finding, we conclude there was no abandonment to the appellant by the appellee.
There then remains the question whether the trial court allowed the proper measure of damages.
The only evidence in the record pertaining to any offer on the part of appellant to comply with the contract of insurance prior to the time suit was filed was the testimony of appellee that appellant offered to send a car from Oklahoma of like make, worth $1400, if appellee would accept same sight unseen in settlement of his claim. Obviously, therefore, the appellant did not exercise its option under the terms of the policy to 'replace the automobile with one of like kind and quality.'
Appellant contends that recovery should have been restricted to the cost of repairs.
The court found that on the date of the theft the automobile had a cash market value of $2100 and in its condition at time of trial it had a value of $1200; that some repairs had been made and $400 more repairs were necessary to put the automobile in salable condition, and that when such repairs were made, they would not substantially restore the...
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