Automobile Underwriters of America v. Radford

VAUGHAN, J. Appellees Mrs. J. F. Rad-ford and husband, J. F.. Radford, sued appellant, Automobile Underwriters of America, alleging that on April 7, 1923, she was the owner of an R. & V. Knight automobile, that on that date, in consideration of premium duly paid, appellant issued to her its policy numbered 132734, insuring her against direct loss or damage to the body, machinery, and equipment of said automobile caused by fire arising from any cause whatsoever, from April 7, 1923, to April 7, 1924, in the amount of $2,400. Appellees further alleged that on July 29, 1923, said automobile was completely and totally destroyed by fire, that, having complied with the terms of the policy in reference to notice of loss, she had demanded of the appellant that it pay her the full amount of said policy, which demand was refused. Appellee sued for the full amount of the policy, together with interest thereon from July 29, 1923, to the date of trial, at the rate of 6 per cent, per annum. Appellant answered, admitting all the allegations of appellees except the allegation that the automobile was a complete and total loss. To this claim appellant specially pleaded a term of the policy providing in no event should appellant be liable for more than what it would then cost to repair or replace the automobile or such parts thereof as may be damaged with other of like kind and quality, and alleged that only certain specific parts of appellees’ car, viz., the painting, glass work,. top, and upholstering, had been damaged by fire, which parts could be repaired or restored at a cost of not more than $350. \ The cause was submitted to the jury on four special issues, said issues and the answers thereto being as follows: “(1) Could the damaged parts of the automobile in suit be replaced with others of like kind and quality, so as to place it in substantially as good condition as it was before the fire? Answer Yes or No. Answer: No. “(2) What amount of money would reasonably be required to repair the car in question and replace such parts thereof, if any, as have been damaged, with others of like kind and quality so as to place it in substantially as good condition as it was before the fire? Answer: $1,800. “(3) What was the actual cash value of the car in question immediately before said fire? Answer: $2,765. “(4) What was the actual cash value of the car in question immediately after said fire? Answer: None.” On, appellees’ motion, the court rendered judgment in their favor on the verdict of the jury 'for $2,400, plus $173 interest, or a total of $2,573. Appellant’s defense was entirely (and the major questions presented by this appeal are) based upon the following provision of the policy: “This exchange shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs and the loss or damage shall be ascertained or estimated accordingly, with proper deduction for depreciation, however caused (and without compensation for the loss of use of' the property), and shall in no event exceed what it would then cost to repair or replace the automobile or such parts thereof as may be damaged with other of like kind ,and quality. * * * ” By its first proposition, appellant contends that the court erred in rendering judgment for interest in the sum of $173, covering the period of time from 60 days after notice and proof of loss to the date of the judgment, at the rate of 6 per cent, per annum. The premises for this contention are that where no interest is prayed for as damages and the jury is not asked to make a finding as to interest, the court may not decree interest on the amount of damages found by the special verdict. The automobile covered by the policy declared upon was alleged to have been destroyed and damaged by fire to such an extent that same thereafter had no pecuniary or market value; that they gave all notices to appellant required by law and the terms and conditions of said policy of said fire, and the damages sustained by appellees, and in every .other way complied with each and every term, condition, and stipulation contained in said policy; that ap-pellees had been damaged and had demanded the payment of said sum specified in said policy, to wit, the sum of $2,400; that ap-pellees “had wholly failed and refused to make such payment; and further alleged that, under and by virtue of the premises, appellant had become justly indebted and promised to pay appellees the sum of $2,400, together with interest thereon at the rate of 6 per cent, from July 29, 1923. The court did not submit to the jury to find the amount of damages appellees suffered, but to find the value of the property destroyed before the fire and its value, if any, immediately thereafter, as shown by special issues Nos. 3 and 4. It is true, the court submitted another and different means of ascertaining the measure of recovery by special- issues Nos. 1 and 2, viz., what it would reasonably cost to repair the car and replace such parts thereof as had been damaged. In answering the special issues upon which the case was submitted, the jury was [871] not called upon to ascertain the amount of damages suffered by appellees, but only to ascertain by tbeir answers to sucb issues tbe value of the property before and after tbe fire, and what it would have then cost to repair tbe automobile and replace sucb parts thereof, if any, as bad been damaged. In no respect was tbe jury called upon to ascertain the amount of damages that appellees bad sustained on account of tbe alleged destruction of tbe automobile, but were only directed to ascertain tbe value of tbe automobile immediately before and after tbe fire and what amount of money would reasonably be required to repair tbe automobile and replace sucb parts thereof as bad been damaged. Therefore tbe court bad tbe right to add legal interest from tbe date of tbe maturity of tbe policy to tbe date of tbe judgment. C., R. I. & G. Ry. Co. v. Trinity Valley Prod. Co. (Tex. Civ. App.) 269 S. W. 1110. By its second proposition, appellant contends that the findings of tbe jury on issues 1 and 2 are absolutely contradictory, and each finding, being supported by evidence, cannot support tbe judgment. In answer to special issue No. 1, the jury found that tbe damaged parts of tbe automobile could not be replaced with others of like kind and quality so as to place it in substantially as good condition as it was in before the fire. This was, in effect, but a finding that tbe automobile bad been so damaged as to become totally destroyed and worthless as an automobile, and that same could not be repaired so as to be restored in substantially as good condition as it was in before tbe fire. The answer to special issue No. 2 is also a positive finding that $1,800 is tbe amount of money that would reasonably be required to repair tbe automobile in question and replace sucb parts thereof as had been damaged with others of like kind and quality, so as to place tbe automobile in substantially as good condition as it was in before tbe fire. These findings are supported by evidence which we will not discuss, in view of another trial of this cause. Here is a vital conflict that cannot be reconciled, viz., that tbe damaged parts of the automobile could not be replaced with others of like kind and quality so as to place it in substantially as good condition as it was in before the fire, with a contrary bolding, equally as important to a proper legal disposition of this case, viz., that $1,800 would be tbe amount of money reasonably required to so repair said car and replace tbe damaged parts thereof. This conflict does not end here, but finds its way into tbe answers to special issues 3 and 4. To No. 3 tbe jury determined that tbe actual cash market valúe of tbe automobile immediately before tbe fire was $2,765, and in answer to No. 4 determined that it did not have any cash market value immediately after tbe fire. This answer to special issue No. 4 is in direct conflict* with tbe jury’s answer to special issue No. 2. To state tbe situation should be sufficient. Tbe answer to No. 2 is, in effect, a finding that tbe car was worth after tbe fire tbe difference between its actual cash market value ($2,765) immediately before the fir© and what it would have then cost ($1,S00) to repair tbe car and replace sucb parts as had been damaged, a difference of $965. This conflict is also irreconcilable. Now, what of the effect of this conflict on tbe judgment appealed from? Tbe total liability under tbe policy was $2,400. By answer to special issue 3 tbe jury found tbe automobile immediately before tbe fire to be worth $2,765. By answer to special issue 4 it found that tbe automobile did not have any-cash market value immediately after tbe fire. This finding would render tbe appellant liable for tbe full sum of $2,400, but by its answer to special issue No. 2 the jury found that it would require only $1,800 to repair tbe ear and replace sucb parts thereof as bad been damaged. This being true, tbe liability of appellant could not exceed tbe sum of $1,800, making a difference of $600 between tbe amount of tbe judgment and appellant’s liability, as thus found by tbe jury. If the automobile had no actual cash value after the fire, the judgment rendered would be correct. On tbe other band, if tbe answer to special issue No. 2 is correct, then the judgment is excessive by $600. Tbe vital and irreconcilable conflict in tbe findings of tbe jury cannot but result in a reversal of tbe judgment of tbe trial court. Stoker v. Fugitt (Tex. Civ. App.) 102 S. W. 743; Brewster v. City of Forney (Tex. Com. App.) 223 S. W. 175. Appellant requested tbe following special issues to be submitted: “(1) Could the damaged parts of tbe automobile in suit be replaced with others of like kind and quality? “(2) If you have answered the foregoing question afiirmatively, find the amount that such replacement of parts and repairs would cost,” —which tbe court refused to submit, and instead thereof submitted special issues 1 and 2, supra, tbe vital difference between special issue No. 1 requested and No. 2 submitted by tbe court being tbe words, “so as to place it in substantially as good condition as it was before tbe fire,” included in said special issue No. 2. Appellant contends that it bad tbe right, having particularly pleaded tbe specific provision of tbe policy fixing tbe standard or test by which its liability should be determined as a defense, to have the issue made by said pleading affirmatively submitted, which right was denied to it by tbe addition of tbe words, “so as to place it in substantially as good condition as it.was [872] before the fire,” submitted as a part of special issue No. 2. This involves the logical effect of the language of the following portion of paragraph E of said policy: “ * * * What it would then cost to repair or replace the automobile, or such parts thereof as may be damaged, with other of like kind and quality.” Properly analyzed and given its everyday, commonly accepted meaning, this language can only mean: (a) What it would cost to repair the automobile, or (b) what it would cost to replace the automobile, or (c) what it would cost to repair or replace such parts of the automobile” as may . be damaged with other of like kind and quality.” Now, what is the meaning commonly given to the word “repair?” We find the meaning to be: “To restore to a sound, good, or complete state after decay, injury, dilapidation or partial destruction.” The Century Dictionary and Cyclopedia, vol. YI. Prom the same authority, we glean that the word “replace” is commonly understood and accepted to mean: “To restore, return, make good, to substitute something competent in the place of, as of something which has been displaced or lost, or destroyed; to fill or take the place of, supersede, be a substitute for, fulfill the end or office of.” Viewed in the light most favorable to the insured, which the language of the policy should be where there is any doubt or uncertainty surrounding it, the court did not err in placing such interpretation upon the language of the policy on which appellant based its defense; for unless the automobile, when repaired or replaced, or its damaged parts repaired or replaced, would have been substantially restored to as good condition as it was in before the fire, it could not be said .that same had been “repaired” or “replaced.” Therefore, section E fixed as the measure of liability what it would cost to repair or replace the automobile, or such parts thereof as had been damaged with other of like kind and quality, so as to restore it as an automobile to substantially as good condition as it was in before the fire. Maryland Motor Car Ins. Co. v. Smith (Tex. Civ. App.) 254 S. W. 256; C. R. I. & G. Ry. Co. v. Zumwalt (Tex. Cr. App.) 239 S. W. 913; Tex. Moline Plow Co. v. Niagara Fire Ins. Co., 39 Tex. Civ. App. 168, 87 S. W. 192. Wherefore, we hold that special issues Nos. .1 and 2, as submitted, were within the meaning of the terms and conditions of the policy, and that appellant’s defense was affirmatively, clearly, and fully submitted. Appellant challenges the rulings of the court in permitting certain witnesses to testify as to value on the ground that they had not duly qualified. We have carefully examined the testimony of the witnesses thus brought into question and find that the trial court did not abuse the discretion resting peculiarly within its province in determining the qualification of the witnesses to testify as to value. Hence this assignment is overruled. Humble Oil & Ref. Co. v. McLean (Tex. Civ. App.) 268 S. W. 179; Studebaker Harness Co. v. Gerlach Merc. Co. (Tex. Civ. App.) 192 S. W. 545. S. E. Hardy and A. C. Patzig, witnesses for appellees, who did not see the automobile immediately after the fire, were permitted over objection of appellant to testify as to its market value at the time they saw it. This testimony was objected to on the ground that neither of said witnesses saw the automobile until long after the fire. Therefore their testimony was based upon the condition of the automobile at the time they examined it and as to its then value, and not on its condition immediately after ¿he fire and its then value. The admission of this evidence would not have been error if same had been limited to the value of the car immediately after the fire. This, because it was shown by testimony of appel-lee Mrs. J. F. Radford that the car was in the Same condition at the time of the trial that'it was immediately after the fire, that no change had taken place therein since the fire; her testimony in this respect being as follows: “The car is now in the same condition that it was immediately following the fire. I had ¿11 the parts wiped off and greased and oiled. I had -a man oil and grease it every so often and kept it in storage for about a year. I had the parts looked after; I had them greased and taken care of. All the parts of the car are now with the ear at 2099 Bryan street, everything being just like it was.” This was sufficient to show that no material change had taken place in the car, and that it was substantially in the same condition at the time said witnesses examined it that it was in immediately after the fire. However, the testimony objected to was as to the value at the time the witnesses saw the automobile, and not its value immediately aftey the fire. For this the court erred in admitting the evidence. Taylor v. Gossett (Tex. Civ. App.) 269 S. W. 230. By its seventh proposition, appellant complains of the action of the court in overruling its objection to the argument of counsel representing appellees in the presentation of the case to the jury. In view of the fact that the case will be reversed on other grounds, we do not deem it necessary to discuss this proposition at length. However, in order to avoid the repetition of the argument complained of on another trial, we think it advisable to state that the argument was nqt justified by the record, or required in order to properly review, analyze, and give logical effect to the testimony before [873] tBe jury on which the rights of the parties were made to depend. It is true, great latitude is allowed in the discussion of the facts in order to show the environments of the case, what effect should be given evidence by comparison to show its reasonableness or unreasonableness, its probative effect or want thereof, bias or interest of the parties, etc., but this must all be within the record, the foundation of which must be the evidence before the court and jury, only by means of which the rights of the parties should be ascertained. The following, taken from the Century Dictionary and Cyclopedia, will amply illustrate the rule that should be observed in the presentation of a matter in dispute before a jury: “Argument is the bare proof or mean term which is invented by him that disputeth to prove the truth of the question, but argumentation is the whole reasoning itself, of what form so ever it be, comprehending both the question and also the proof thereof. * * * A reasoning the process by which the connection between that which is or is supposed to be admitted and that which is doubted or supposed to need confirmation is traced or tested.” The other questions raised have been as carefully considered and determined as those herein discussed, but, not being deemed of sufficient importance to be reflected in this opinion, and not likely to recur on another trial, will be disposed of with the statement that same are overruled, no material error having been discovered therein. The judgment of the court below is reversed and remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.