6 Div. 993.
January 17, 1924. Rehearing Denied February 7, 1924.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
William S. Pritchard and J. D. Higgins, both of Birmingham, for appellant.
It is an invasion of the jury's province to set aside a verdict that is not clearly against the weight of the evidence. 29 Cyc. 821; Stull v. Daniel Mach. Co., 207 Ala. 544, 93 So. 587; Birmingham Bank v. Bradley, 116 Ala. 142, 23 So. 53. The motion for new trial must point out with certainty an error justifying a new trial. Bank of Dothan v. Wilks, 132 Ala. 573, 31 So. 451.
Davis Locke and Metz Griffith, all of Birmingham, for appellee.
The action of the trial court in setting aside a verdict and granting a new trial on the ground that it is contrary to the weight of the evidence, or is excessive, will not be disturbed on appeal, unless the evidence plainly and palpably favors the verdict. Newman v. Morgan, 202 Ala. 606, 81 So. 548; Cobb v. Malone, 92 Ala. 630, 9 So. 738; So. Ry. Co. v. Cleveland (Ala.) 60 So. 799; Cox v. B. R., L. P. Co., 163 Ala. 170, 50 So. 975.
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 a mortgage on the car, was not notice to the insurer. Such knowledge by Hammond did not constitute a waiver of the warranty against mortgages. Riverside Development Co. v. Hartford Ins. Co., 105 Miss. 184, 62 So. 169, Ann. Cas. 1916D, 1274; 22 Cyc. 1435.
However, knowledge of the existence of the Hammond mortgage, acquired by the adjuster soon after the fire, and communicated to the home office, followed by the telegram to the attorneys at Birmingham agreeing to pay the loss, was a waiver of the breach of the warranty against incumbrances. It is admitted this telegram was in response to a notice from plaintiff touching negotiations to purchase Hammond's interest in the policy and the car. Georgia Home Ins. Co. v. Allen, 128 Ala. 451, 30 So. 537. This telegram, however, was not an agreement to pay as for a total loss.
The issue raised as to the use of the car for business purposes is not so presented at this time as to call for decision. The schedule of warranties should be construed in connection with the conditions set out earlier in the policy, especially exclusion No. 8.
The chief controversy in the case arises over the question of partial or total loss. In this connection the handling of the damaged car after the fire becomes material.
If Jackson, the insured, soon after the fire, turned over the damaged car to Hammond, as mortgagee, and shortly thereafter the adjuster of the insurer inspected the car and ordered Hammond, as agent of the insurer, to store the car, thereby assuming dominion over the car and causing storage charges to accrue against it, what then? The insurer had the option to repair the car on giving 30 days' notice. This notice was not given and no repairs ever made. It follows, in such event, that, if the car remained under the control of the insurer in storage to the time suit was brought, without offer to return it to the owner, the plaintiff had the election to treat such act as a conversion, and sue in trover or case, or waive the tort and sue in assumpsit in connection with counts on the policy. In that event the aggregate amount of recovery would be the cash value of the car immediately before the fire, less any damage from removal of parts or otherwise between the date of the fire and the date of conversion. The insurer would lose the right to insist on paying the cost of repairs which by its own act it had failed to do or allow to be done.
On the other hand, if the adjuster, knowing Hammond's interest in the car as mortgagee, or as representative of Jackson, the insured, merely advised him in the interest of all parties to shelter the car pending proof of loss and adjustment, and thereupon Hammond, having such control of the car, put it in storage and it so remained, this plaintiff took the car under the assignments from Jackson and Hammond cum onere. In this event plaintiff could only recover the value of the car immediately before the fire, less its salvage value after the fire, or, if capable of being rebuilt with parts of like material and quality, then the reasonable cost of such repairs. All this is subject to the finding whether there was an agreement binding on the insurer, after notice of all the facts, to pay as for a total loss.
The judgment awarding a new trial is affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.