American Automobile Ins. Co. v. Carson

102 So. 219 | Ala. | 1924

The rules governing the giving of the affirmative charge have been stated by this court and need not be repeated. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

Under the conflicts in the evidence, jury questions were presented as to several material facts: The alteration vel non of the policy of insurance as to the factory number of the car as originally expressed in the policy; the initials on the doors of the car as sold and the absence thereof on the car found in defendant's possession; the distance from Chicago to Pensacola; the time required to drive an automobile from and to the points indicated by the evidence. The time of the larceny of the car in Chicago is fixed as September 3 and that when defendant's car was seen in Florida was September 6, 1920; and the distance between the two points was 1,900 miles.

The testimony of an approximate distance and estimate of time is opinion evidence. In the consideration of such evidence the jury have the right to and should exercise a reasonable judgment, consult common knowledge and experience, and consider such evidence with all the other evidence on the question, and draw the reasonable inferences therefrom in finding the truth of the matter for decision.

Courts take judicial knowledge of the locations of Chicago and Pensacola and the approximate distance between the two points. People of Illinois v. Pease, Sheriff, 207 U.S. 100,28 S.Ct. 58, 52 L.Ed. 121, 126. However, under one phase of the evidence it is shown that the usual route of travel between said cities was a greater distance than 1,900 miles, and that the mode of travel was by automobile. We take such evidence for the defendant as true, when considering the propriety of giving the general affirmative instruction for the plaintiff. The reasonable time required to transport a car between the said two points was a material question of fact for the jury. The cases of Ætna Explosives Co. v. Schaeffer, 209 Ala. 77, 95 So. 351, Hicks v. Burgess, 185 Ala. 584, 64 So. 290, and Stockburger Brothers v. Aderholt, 195 Ala. 56, 70 So. 157, as to opinion evidence opposed to undisputed facts raising no issue, are not inconsistent with the holding we now make.

When the original policy of insurance certified to this court is inspected, and all the evidence is considered, we are of the opinion that no error was committed by the trial court in refusal of written charges requested by the plaintiff.

Under the rule of Cobb v. Malone Collins, 92 Ala. 631,9 So. 738, and cases following that case, no reversible error was committed in overruling plaintiff's motion for a new trial.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.