New Amsterdam Casualty Co. v. J. H. Blackshear, Inc.

ON REHEARING. The application for rehearing in this case was granted solely for the purpose of reconsidering the question as to whether or not the court below erred in denying the motion for new trial, particularly with reference to the seventeenth ground thereof, which reads as follows: "The court erred in refusing to permit the witness, Jungmeyer, to testify as to the amount which he paid or allowed the plaintiff for the automobile involved in the suit before repairs were made."

The declaration is in rather general terms as to the nature of the loss or damages claimed, but the bill of particulars claims damages for "costs of repair and replacement of parts," etc., itemizing the same, in the total sum of $495.20. This claim, unless it exceeds the cash value of the automobile before the accident, appears to have come within the *Page 294 terms of the policy, which limited the liability of the company, as respects the automobile, "to the actual cash value of the property damaged or destroyed at the time of the collision or upset, or the cost of its suitable repair orreplacement." The plaintiff having elected to sue for the latter, or to confine its evidence thereto by its bill of particulars, and the defendant not having demurred to the declaration, nor objected to the bill of particulars, the defendant in error contends that the court did not err in respect to the matter complained of in the seventeenth ground of the motion for new trial, as the only question was the cost of repairs and replacements. It appears that the theory of plaintiff's case, as recognized on the trial, was to recover what the cost of repairs and replacements necessary to place the car in as good condition as it was before the accident would have amounted to. Plaintiff did not actually make such repairs or replacements nor have them made. The rule, applicable in many cases, that the measure of damage is the difference between the market value before and after the accident, would probably not have been applicable here, and the testimony in question not admissible, had it not been that there was testimony tending to show that the cost of necessary repairs and replacements, if made, would have equalled or exceeded the cash value of the property at the time of the collision. The plaintiff could not recover more than that. There was evidence tending to show that the value at the time of the collision was $495.00. Jungmeyer testified that he offered that much for it in a trade. Jungmeyer testified as to the estimated cost of the necessary repairs. He bought the car from plaintiff before repairs were made. Such being the case, the witness, Jungmeyer, in view of his previous testimony, should have been permitted, on cross examination, to answer the defendant's questions as *Page 295 to what he paid or allowed the plaintiff for the automobile before it was repaired. This was legitimate cross-examination; if for no other reason, because it went to the reasonableness and credibility of his testimony as to what it would have cost to repair the automobile and make the necessary replacements.

For this error, our former judgment of affirmance is set aside, and the judgment of the court below reversed and the case remanded.

Reversed and remanded.

DAVIS, C. J., and WHITFIELD, TERRELL and BUFORD, J. J., concur.

ELLIS and BROWN, J. J., concur specially.