Maryland Motor Car Ins. v. Smith

LEVY, J.

(after stating the facts as above).

[1]

The appellant predicates error on the refusal of the court to submit the following requested question:

“What was the reasonable value of the automobile in question after the fire?”

The point made is that the only damages covered by the policy for a partial loss, as this case is, is the difference between the actual cash value of the automobile just before the fire and the actual cash value of the sound parts -remaining after the fire. It is concluded that it was not . a positive reversible error to refuse to put the question in that particular form to the jury, to answer, because the question submitted, as applied to the real issue in tliis -case, was within the meaning of the terms and conditions of the policy in suit.

[2]

The appellant insists that the verdict Of $1,425 is excessive in that the actual cash value of the automobile is declared to be $1,500, while the remaining sound parts, as shown by the evidence, are worth between $250 and $300. There is evidence, relied on by the appellant, going- to show that the remaining sound parts are worth the sum mentioned. There is also evidence going to show that the remaining sound parts could be readily used again repairing the automobile; that the cost of replacing the parts of the car which were damaged was in amounts varying from $250 to $2,000. • The finding of the jury in the sum of $1,425 evidently involves the finding by them that , the loss sustained to the automobile- parts separately was -to such an extent as to practically require the injured parts to be entirely replaced with other parts. There is evidence to support such finding, and to the amount stated by the jury. It does appear that the verdict is in a large sum in view of the value of the car. But, in view of the stipulation in the policy, the evidence showing the cost of replacing the injured parts is too strong and abundant to warrant this court in setting aside or reducing the sum of the verdict. The parties have themselves agreed upon the measure of liability, the extent of it being distinctly provided by a stipulation in the policy binding upon both parties. It is provided in the stipulation that — “This company 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 accordingly with prop- *528 ér deduction for depreciation, however caused, and without compensation for loss of use of the property.” ■ Thus far, and if nothing more were contained in the policy, it is apparent that, if there were a total destruction of “the property,” referring to “the automobile,” the insurance company would be liable for its actual cash value at the time the loss by fire occurred, not exceeding the maximum sum stated in the policy of $1,800. But the stipulation goes further,'-and also provides that the extent of the liability of the insurance company “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.” This latter has application exclusively to a loss or damage only partial and less than a total loss, and was intended to provide a- method of measuring the extent of the amount of the liability of the insurance company for such damage or loss, less than a total loss of the’ automobile itself, as was sustained. It means that, if the automobile, or any of its specially enumerated parts separately, sustained a “damage,” slight or great, requiring only ordinary repairs to be made on it to restore it- to the condition it was in just before the fire, the “then cost to repair” was to measure and fix the extent of the amount of liability. Blit, if any of the specially enumerated parts of the automobile-suffered a damage or injury to such' an' extéht as to' practically require that they be replaced with other parts, the “then cost to replace such parts thereof as may be damaged with like kind and quality” was intended to measure and fix the extent of the amount of liability. The policy insured against loss of or’in jury by fire to the automobile or “the body, engine and equipment of said described automobile.” In the stipulation the limitation placed upon- the extent of the cost of the “repairs” where only ordinary “repair” by work or materials, or both, are reasonably required to restore the car, or parts injured,-is-the sum of the “then cost to repair,” meaning, of course, the fair and reasonable cost of such repairs at the date of 'injury. Also the limitation in the stipulation placed upon the cost to “replace” the injured or destroyed parts, if injured to *¡he extent that it practically requires the ¿arts to be “replaced” with other parts, is the sum of the “then cost -to replace such parts as may be damaged with other of like kind and quality.” The words “of like kind and quality” do not refer to parts of. like age, use, and condition, or present cash value of the parts injured or destroyed by the fire. The words are used as relating to quality and suitableness or fitness for the purposes used. It may be that parts of like age, use, and condition of the injured or destroyed parts are practicably obtainable, and it may be that they are not practicably obtainable. If practicable to use only new parts, and new parts would have to be used, the- words and meaning of the stipulation would not forbid it. Consequently the reasonable cost either to “repair” or to “replace” the injury or partial loss with materials of like kind and quality, as fixed by the judgment of a jury, would be accepted as decisive, because the insurer’s liability is fixed on that agreed basis. The only question is that of whether or not there is evidence to support the finding of the jury, and whether or not such finding exceeds the insured amount of the automobile.

[3]

Error is predicated upon the ruling of the court in refusing, on objection made, to permit appellant to show, on cross-examination, by a witness testifying in behalf of appellee, that he was criminally intimate with appellee, and that he and appellee within, two months before this trial were caught occupying a room together at night in one of the boarding .houses, and that as a conseqiience of the circumstances the appellee was charged by complaint with va'grancy, and pleaded' guilty to the charge. The witness was testifying to the cost of repairing the car, and had testified that;the cost would be at least $2,000, and more than the cost of a new car. The rejected testimony was offered for the purpose of showing a bias of the witness in favor of the appellee. In view of the record it is believed that the error complained of. if an error, should not operate to reverse the judgment. The witness was permitted to and did testify in answer to questions of appellant’s attorney “that he was a special friend to and on ‘intimate terms with the plaintiff, Mrs. Ora B. Smith.” And, irrespective of the witness’ “testimony, there is evidence that the cost of repairing the ear would be “$1,500” and “$1,800.” The jury’s finding was in a sum less than “$1,500,” showing that the evidence of this witness was. not relied on entirely, if considered by the jhry, in deciding the issue of “cost of repairs.” It is thought there was not such improper proceeding on the part of the attorney as to amount to misconduct requiring or justifying a reversal. The court promptly admonished the jury not to consider and to disregard the remarks.

The judgment is ordered affirmed.

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