concurring specially.
The special verdict form simply showed “house $58,900.00.” It did not show that the jury found that “plaintiff’s house was valued at $58,900.” This is significant because the core of the substantive dispute with respect to the verdict is whether there was any evidence to support a finding that the house was not “totally destroyed by fire.”
If the evidence were conclusive that the house was totally destroyed by fire, then the jury could not have awarded anything other than $77,000 pursuant to OCGA § 33-32-5, as a matter of law. It would not have been authorized to award only the value of the house, or more accurately, the actual value of the loss. Because of the evidence of market value, the trial court apparently concluded that the jury had erroneously ascribed value rather than the policy’s face amount in its verdict.
*870Decided March 14, 1990. Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, William E. Zschunke, for appellant. Gleason & Davis, John W. Davis, Jr., David J. Dunn, Jr., for appellee.If, on the other hand, the evidence were in conflict with regard to whether destruction by fire was total or only partial, then the jury’s award of $58,000 for the loss to the dwelling was supported and plaintiff was not entitled as a matter of law to the face amount of the policy. (The jury apparently did not consider the razing to constitute destruction by fire.)
Procedurally, the question was not properly raised or ruled on in the trial court. As correctly ruled by the majority, OCGA § 9-12-7 limits the applicability of OCGA § 9-12-5, and the latter does not fit the circumstances. Even if the evidence had demanded a finding of “total destruction,” the remedy with respect to a verdict which found otherwise would not be a nonconforming judgment.
The court could have directed a verdict or given judgment notwithstanding the verdict in this regard, had plaintiff made such motions. The court could have returned the jury to its deliberations with proper instructions as plaintiff apparently sought but the court rejected, which rejection is not enumerated as error. The court could have granted a new trial, sua sponte or on motion by plaintiff. The method chosen by plaintiff to complain of the verdict was inappropriate, and plaintiff must be satisfied with recovery of the value she placed on the encumbered dwelling including the land, reduced by the amount of the encumbrances but excluding the value of the land.