In this action upon an insurance policy issued by appellant, plaintiff, upon a jury trial, recovered a verdict of $27,-288.46, plus interest from the date of denial of coverage by the appellant. After verdict, appellant moved for judgment n. o. v. and in the alternative for either a new trial or a new trial nisi, all of which were refused.
Plaintiff’s intestate, James G. Lesley, was for a number of years engaged extensively in the poultry and feed business in Pickens County. On February 13, 1971, he owned,
inter
alia, “an environmentally controlled pullet house” in which he had some 34,000 young pullets which had been hatched on or about November 10, 1970. In such a poultry
The pullets in the particular poultry house were financed by Mr. Lesley through Blue Ridge Production Credit Association which required an insurance policy to protect it. Mr. W. R. Taylor, manager of the Association, on behalf of Mr. Lesley procured the necessary policy from the appellant. According to the usual procedure, the appellant forwarded the original рolicy and a copy to Mr. Taylor, the original being retained by the Association and the copy delivered to Mr. Lesley. * The policy provided coverage, inter alia, against “death of the poultry, directly and immediately resulting from: (a) fire and lightning * * *.” The loss of the poultry was promptly reported to the appellant who shortly thereafter denied liability under its policy and this litigation ensued.
Appellant first contends that it was entitled to a directed verdict, asserting that there was no competent evidence that the power interruption was caused by lightning, but even if so caused, no proof that the loss was the “direct and immediate” result of the power interruption by lightning. It is, of course, elementary that in considera
Appellant next contends that the trial court erred in equating the terms “directly аnd immediately” with “proximate cause”. His Honor charged the jury that in order for the plaintiff to recover, he had to prove that lightning was the direct and immediate factor in bringing about the death of the chickens and that lightning was the proximate cause, defining proximate cause as follows:
“Now, proximate cause is the efficient cause. Proximate cause means literally the cause nearest in point of time. But under the law it does not necessarily mean that. It means here the efficient cause, it is the direct cause, the cause without which the loss would not have occurred. So, it is your duty to decide what was the proximate cause of the death of the chickens.”
We are not convinced that the charge complained of was erroneous. There is authority in this State for the proposition that the terms “proximate and immediate” are virtually synonymous.
Suber v. Parr Shoals Power Co.,
113 S. C. 317,
Appellant’s next contеntion is that there was error on the part of the trial judge in permitting respondent’s counsel to argue certain matters to the jury. Appellant’s objection to the jury argument does not appear in the record, nor was there any recordation of the argument. Reference to such is made in appellant’s motion fоr a new trial and in His Honor’s order denying a new trial. It is well settled that considerable latitude is allowed counsel in drawing inferences and deductions from the evidence and in arguing the same to the- jury.
Johnson v. Life Ins. Co. of
Georgia,
Appellant next complains of the admission of certain testimony from two witnesses for the respondent, Patterson and Crowe, each of whom gave opinion testimony as to the causative effect of lightning in the case. It is contended that neither of these witnesses had the proper qualifications to givе opinion testimony as experts. Mr. Patterson was an electrical contractor of many years experience. Mr. Crowe had spent many years as a lineman
In each instance counsel for appellant objected to the question “as being an improper hypothetical question without proper foundation.” In neither instance did counsel point wherein he considered the hypothesis to be either inaccurate or incomplete. Counsel for appellant proceeded to cross examine Mr. Pаtterson without any reservation of his objection, and it is at least questionable whether there was any proper reservation of his objection in his cross examination of Mr. Crowe.
In any event, we are not convinced that there was any prejudicial error. In each instance, the question addressed to the witness assumed as a hypothesis the occurrence of a severe electrical storm, a fact not known to these witnesses, but proved by other witnesses. In all other respects, their opinions were predicated upon the scientific knowledge of the respective witnesses applied to the facts which they knew from obsеrvation in the course of their respective investigations.
Even if it be conceded that there was anything improper in the question addressed to the witness in either instance, appellant’s general objection thereto was insufficient. Objections to hypothetical questions addressed to expert witnesses must be specific and point out
We come now to a contention of the appellant which we deem meritorious. The plaintiff contended that the actual market value of the chickens was $1.38 each, and that he was, accordingly, entitled to recover the amount awarded by the jury. It is the appellant’s contention that the рolicy expressly limited recovery for the loss of chickens of the particular age of the chickens here involved to $.8655 per bird, or the sum of $17,108.34. Appellant requested His Honor to so charge the jury, but His Honor deemed the policy ambiguous and submitted the issue to the jury, who returned the larger amount. The motion for a new trial nisi, which wаs denied, was predicated on the contention that the verdict should be reduced to what appellant contends was the policy limit of recovery, to wit: $17,108.34.
In his business, Mr. Lesley not only had laying hens but raised commercial layers for sale to others. The chickens involved in this case were purchased by him at approximately one day old, on or about November 10th, 1970, and were being raised under contract for sale to another as commercial layers at age 20 or 21 weeks, for $1.55 each. At the time of loss they were three months and three days or approximately twelve weeks old. The particular insurance policy issued by appеllant afforded coverage according to a form attached thereto entitled “Chicken Growers Contract Breeder and/or Layer Form”. In the first paragraph of such form there are certain boxes for the purpose of indicating what poulty is being insured and for what period of time, as follows:
21
[x] Pullets (day old to -20-weeks)
□ Started Pullets (20 weeks to 80 weeks)
□ Layers (day old to 80 weeks)
□ Breeders (day old to 60 weeks)
Section 6(b) of the particular form is as follows:
“The" liability of the Company as respects poultry shall not exceed the actual cash value at the time and place of loss as limited by the loss recovery schedule herein(Emphasis added.)
Section 9 of the form is entitled “Schedule of Limits of Loss Recovery.” The first half of said section 9 is clearly applicable solely to breeders with which we are not concerned. The last half of section 9 reads as follows:
“COMMERCIAL LAYERS DATE OF HATCH THROUGH 18 MONTHS SCHEDULE OF AMOUNTS RECOVERABLE 100% RECOVERY PER BIRD LIMITED TO $1.50 LOSS RECOVERY % VALUE RECOVERY LOSS RECOVERY % MONTHS OF $1.50 LIMIT LIMIT MONTHS OF $ ... LIMIT
1 28% 40--66%-
2 1 41% 44-■61%"-
3 56% 42--54%—
4 73%' 49--47%-
5 95% -44— ■49%—
-6-100% 46— -93%—
4--93%--46--26%-
-8--84%-19%-
-9-45%-48-
His Honor declined to instruct the jury that appellant’s liability was limited by the foregoing schedule, reasoning that there was an ambiguity in the policy
By the express terms of section 6, appellant’s liability under the policy was limited to “the loss recovery schedule therein.” The only completed “loss recovery schedule” contained in the policy is the above quoted one entitled “Commercial Layers”. That schedule, wе think, was designed, and clearly intended by the parties, to be applicable to commercial layers from “date of hatch through 18 months”, and of necessity included those pullets under five months of age which were being raised as and for commercial layers but were not yet of laying age. His Honor was in error, we conclude, in failing to hold that liability of the appellant was limited in accordance with said loss recovery schedule.
Appellant’s computation of the limit of its liability was arrived at as follows. The chickens were three months and three days old, hence liability was limited to 57.7% of $1.50, or $.8655 per bird or chicken. The accuracy of such computation is not challenged by the respondent who, on this point, simply contends that such loss recovery schedule is not applicable.
It is now settled, we think, that where damages improperly awarded can be segregated from those which were properly awarded, it is appropriate for this Court to affirm the judgment as tо the damages properly awarded but reverse as to those improperly awarded.
Adcox v. American Home Assur. Co.,
258 S. C. 331,
We conclude that the judgment below should be, and the same is hereby, affirmed to the extent of $17,108.34, together with interest thereon, but is reversed as to the excess which was improperly awarded.
Affirmed in part; reversed in part.
Notes
Inadvertently, the amount of the maximum coverage per bird, to-wit: $1.30, was not filled in on Mr. Lesley’s memorandum copy. Absent any showing of Mr. Lesley being misled or overreached thereby the rights of the parties were controlled by the actual policy which was completed and issued in accordance with the detailed letter of application therefor.