Opinion
3 Div. 755.
April 8, 1926. Rehearing Denied May 13, 1926.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Hill, Hill, Whiting, Thomas Rives, of Montgomery, for appellant.
It was error to sustain demurrer to plea 2. Ledyard v. Manning, 1 Ala. 153; 6 R. C. L. 949; 13 C. J. 647, 662; 26 C. J. 448. It was error to give the affirmative charge for plaintiff. St. Paul Ins. Co. v. American Comp. Co., 211 Ala. 593, 100 So. 904, 35 A.L.R. 1018; Interstate Cas. Co. v. Stewart, 208 Ala. 377, 94 So. 345, 26 A.L.R. 427; Continental Cas. Co. v. Paul, 209 Ala. 166, 95 So. 814, 30 A.L.R. 802.
Chilton McCoy, of Montgomery, for appellee.
Plea 2 was bad. Code 1923, § 9473; N.C. St. L. R. Co. v. Parker, 123 Ala. 683, 27 So. 323; Thomas v. Irvine, 171 Ala. 332, 55 So. 109. But, if there was error in sustaining demurrer to said plea, it was without injury. Miller v. Mutual Gro. Co. ante, p. 62, 106 So. 396; Copeland v. Union Nursery Co., 187 Ala. 148, 65 So. 834. There was no error in giving the affirmative charge for plaintiff. St. Paul Ins. Co. v. American Comp. Co., 211 Ala. 593, 100 So. 904, 35 A.L.R. 1018.
The complaint is upon an insurance policy, and the amount claimed is for the damages to the plaintiff's car on account of a collision and not the total value of same for a destruction thereof. Therefore, in construing the defendant's plea 2, we must do so in connection with the averments of the complaint. This plea is not a denial of the plaintiff's cause of action, but is no doubt intended as one in confession and avoidance, and, in determining whether it states a lawful avoidance, depends on the meaning of the word "replace" as used in the policy. We do not think that the word "replace" as used means the right to exchange cars or to substitute a new one for the old one, especially when the claim is damages for an injury as distinguished from a claim for a total destruction. In other words, the right to replace does not mean a right to exchange cars, notwithstanding such a thing may have been fair and more advantageous to the plaintiff. "Replace" or "replacement" does not ordinarily mean the right to exchange or substitute, but, when used in connection with the policy involved, means repair or restore. Leeds Catlin v. Victor Talking Machine Co., 213 U.S. 325, 29 S.Ct. 503, 53 L.Ed. 816, and cases there cited.
Plea 2 is unquestionably bad, but it is doubtful as to whether or not the grounds of demurrer interposed thereto properly pointed out the defect. We think, however, that the record discloses that the defendant was not injured by the elimination of its plea 2. The policy was introduced in evidence, and discloses that said plea could not have possibly been proven, as there is nothing in the policy which would permit or allow the defendant to give plaintiff another car in exchange for the old one. The policy provides an indemnity caused by a collision "against actual loss or damage by reason of such injury or destruction not exceeding the actual cost of suitable repair or replacement or actual value at the time of the accident." The plea, in effect, places a legal construction on the word "replace" as authorizing the defendant to give the plaintiff another car and take the old one, when, as matter of law, the policy is not susceptible of any such construction, and the defendant could not therefore, under any circumstances, establish said plea. Rasco v. Jefferson, 142 Ala. 705, 38 So. 246.
The uncontroverted evidence established an injury to the automobile as the result of such a collision as was covered by the policy, and the trial court did not err in giving the general charge for the plaintiff, leaving the amount of damages to the jury. St. Paul Co. v. American Co., 211 Ala. 593, 100 So. 904, 35 A.L.R. 1018.
The trial court committed no reversible error in ruling upon the evidence, and the judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.