AMERICAN SERV. MUT. INS. CO. v. GrizzardAMERICAN SERV. MUT. INS. CO. v. Grizzard
The Circuit Court of Limestone County granted the plaintiff‘s motion for a new trial. The defendant appeals, contending the trial court erred to reversal in granting the motion for new trial. We affirm.
The record before this court reveals thаt the lawsuit from which this appeal is taken involved the question of whether an insurance policy had been canceled.1 Put anоther way, was the plaintiff afforded coverage under a policy of insurance issued by defendant insurance company.
The lаwsuit was tried before a jury and the following verdict was returned: “We find in favor of the defendant. We also find the policy was canceled unjustly.” Thereafter, the plaintiff filed a motion for new trial. The plaintiff‘s motion was bottomed on the premise that the trial court erred “in instructing the jury that the policy of insurance sued upon could be canceled for any reason, that the insurance company, the defendant, had the right to cancel the policy whether they had a reason or not.” As noted above, this motion was granted; hence, this appeal.
The lawsuit which is the basis of this appeal was, to this court, clearly tried on the premise that the insurance рolicy in question was canceled for nonpayment of premiums. The case was obviously, from a reading of the record, ably tried by two experienced trial lawyers. The trial court gave to the jury a lengthy oral charge to which no pertinent objection wаs made. After the jury retired, they returned to the courtroom for further instructions. The following question was asked by a juror:
“MR. GLAZIER: I understand plainly that that‘s the only question, whether the insurance was in effect or whether it had been cancelled, but there was a reason on there for bеing cancelled. Does it have to state a reason?”
The trial court responded as follows:
“THE COURT: No. It can be cancelled for any reason. The insurance
company could write me today and decide they didn‘t want somebody with brown eyes.”
The above response is the basis of the new trial motion. We would note, as counsel for the defendant in an excellent brief points out, there was no objection made to the abоve statement by the trial court. We would further note that in the trial court‘s original oral charge to the jury, virtually the same “statement” is made on more than one occasion and no objection was made in that instance, either.
It is the plaintiff‘s contention that
The appellant argues that the failure of appellee to object to the erroneous charge of the trial court before the jury retired precludes him from alleging error based upon the charge. Appellant relies on
However, this appeal solely concerns the propriety of the trial court granting a new trial and not whether the trial court was in error for giving such an erroneous charge which cоuld not be raised on appeal unless an objection was made.
The granting or denying a new trial motion rests largely in the discretion of the trial judge. The judgment of the trial judge is presumed correct on appeal. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973); Hubbard Bros. Const. Co., Inc. v. C.F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975).
With the above principles of law in mind, this court cannot say the trial court erred to reversal. We are clear to the conclusion, contrary to defendant‘s persuasive argument, that the trial court‘s “statement” to the jury was erroneous. Put another way, the trial сourt‘s charge to the jury was at least a misstatement of the law or, at best, a misleading statement of the law. To this court,
“No notice of cancellation of a policy of automobilе liability insurance shall be effective unless it is based on one or more of the following reasons:
“(a) Nonpayment of premium; or
“(b) The policy was obtained through a misrepresentation; . . .” [Emphasis supplied.]
With the above in mind, the issue then becomes whether or not the trial court erred in granting a new triаl motion based on the fact that the trial court gave an incorrect or misleading charge or statement to the jury.
The law of Alabama is that an incorrect charge or even a misleading charge to the jury may be the basis for the granting of a new trial and, if such mоtion is granted, it will not be overturned on appeal. See Montgomery City Lines, Inc. v. Scott, 248 Ala. 27, 26 So.2d 200 (1946). See also Proctor v. Coffey, 227 Ala. 318, 321, 149 So. 838, 840-41 (1933), wherein the Supreme Court of Alabama stated:
“Moreover, since the charge was misleading, if the trial court in its discretion found that by reason of such tendency a new trial should have been granted, his act in that respect will be reviewed with the same presumption as is usual in the exercise of such power. . . .”
We can find no basis for saying there must have been an objection for the abоve principle to apply.
While the evidence is substantial that the defendant was entitled to a verdict, we cannot say, in this instance, that he was so entitled as a matter of law. In view of the above, we find that any discussion of the evidence would be inappropriate.
Keeping in mind the jury verdict wording itself2 and what we have said above, the following as found in Montgomery City Lines, supra, is appropriate:
“Should we adopt the construction that, at most, the сharge was merely misleading, a reversal would still be unwarranted in view of the favorable presumption attending the ruling of the trial court. By grаnting the new trial, the misleading and injurious tendencies of the charge were thus declared and no case is shown for overriding this presumptiоn. . . .” (248 Ala. at 31, 26 So.2d at 202)
Nothing we have stated above should be interpreted or construed as holding that in this instance the trial court was required to grant the mоtion for new trial. We only hold he was not in error for granting the motion for new trial.
The case is due to be affirmed.
AFFIRMED.
WRIGHT, P.J., and BRADLEY, J., concur.