Union Assurance Society Ltd. v. Garver

Henderson, J., delivered the opinion of the Court. The appellee, holding a fire and theft policy of fleet insurance upon his motor vehicles, including a 1949 Eruehauf, insulated, stainless steel, milk tank trailer, put in a claim when the trailer was seriously damaged in a fire which destroyed his garage on January 4, 1958. Although the original cost of the vehicle was nearly $8,000, the limit of recovery under the policy was $2,000. The value of the trailer prior to the fire was estimated at about $3,500.

After the fire it was “junk * * * hardly worth fixing.” The appellee described the damage to the truck as follows: “It was burnt completely up, that is, everything had burnt all off of it including all of the tires, the lumber and the big joist in the garage had fallen down on it, bent it, banged it up, in fact, it looked like a burnt tomato can had been in a fire.” When the claim was not paid, the policyholder filed suit and recovered a judgment for $2,000 in a jury trial. The chief contention on appeal is that there should have been a directed verdict because of an alleged breach of a cooperation clause in the policy. The appellant concedes that the fire occurred, and that it was seasonably notified of the claim. Charles Smith, an adjuster representing the Company, called in due course.

Smith asked Garver to get an estimate on the cost of repairing the trailer. Garver obtained a detailed estimate, in letter form, from The Brodix Corporation in Dunellen, New Jersey, a ⁴¹⁵ dealer in milk tank trailers. He sent the original letter to Smith. The letter, based on an inspection made by Mr. Walster and signed by W. V. Reddeman, quoted a total price of $2,625, F.O.B. Dunellen, for complete repairs, including restoration of the bent and broken insulation plates, but excluding tires.

A carbon copy of the letter was offered in evidence over objection. Some weeks later Garver called Smith on the phone. Smith said he still had to get some salvage bids. He called Smith a week later.

Smith said: “that trailer of yours is a total loss. * * * You’ve got the cheapest estimate, * * * But I got some salvage bids and the high bid was a hundred and fifty dollars for what’s left”. Smith offered him $1,850 in settlement, to which Garver agreed. Garver asked if it would be all right if he patched the trailer up to haul peas. Smith told him he could junk the trailer or do what he pleased with it.

Garver testified that a few weeks later he took the trailer to Brodix, and had it partially repaired so he could use it to haul peas. It was not re-insulated, or suitable for hauling milk. Some of the repairs were made in his own shop. He produced a bill from Brodix for $532.

The appellant’s case seems to center upon this bill for partial repairs. The appellee testified on the stand that he thought the bill was made out by Mr. Walster “up at the Dunellen, New Jersey plant.” At another point he testified the bill-head form was in blank when Walster brought it to Garver’s house and made it up there. The court ruled that the