BUDDY HOLMES AND PATSEY HOLMES, D/B/A HOLMES ROOFING COMPANY, APPELLANTS,
v.
SHELBY MUTUAL INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEE
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Policyholders sued their insurance company for damage to equipment covered by a collision policy. The trial court directed a verdict against them after they failed to prove the insurer's liability, and the appellate court affirmed because the insurance policy was not included in the appellate record, preventing review of the liability determination.
A tender does not constitute an admission of liability and does not preclude a directed verdict. However, the appellate court cannot review the correctness of the directed verdict because the insurance policy itself was not included in the appellate record, making it impossible to determine whether the policyholders proved liability under the policy's terms.
“The proper legal effect of such a tender is merely discontinuance of the accrual of interest and preclusion of assessment of costs and attorney's fee against the tendering party.”
Establishes that a tender does not constitute an admission of liability.
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Join FLexlaw to unlock all legal intelligenceAppellants Buddy and Patsey Holmes owned a Binks air compressor pump that was damaged in a truck collision. They obtained a repair estimate of $326.35…
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Appellants Buddy and Patsey Holmes sued Appellee Shelby Mutual Insurance Company on a policy insuring them against collision and upset damage to their Binks air compressor pump. They now appeal from the judgment entered on a verdict directed against them.
It appears that the damage to the pump occurred when a truck in which it was being carried was involved in a collision. After the accident appellants obtained from Weeks Equipment Company a repair estimate in the amount of $326.35, and with appellee’s permission they authorized Weeks to proceed with the repair job. Weeks performed the task in such a manner as rendered the pump in a condition wholly unsatisfactory to appellants, and, as a result, appellants brought the suit which eventually led to this appeal.
Before commencement of the trial below appellee tendered into the registry of the court the sum of $356.35, representing the amount of the repair estimate plus an additional $30.00 offered in an attempt to settle the claim. On appeal appellants contend that this tender amounted to an admission of liability by appellee such as precluded the direction of a verdict in appellee’s favor.
The proper legal effect of such a tender is merely discontinuance of the accrual of interest and preclusion of assessment of costs and attorney’s fee against the tendering party. Williams v. Farm Bureau Mut. Ins. Co. of Mo., Mo.Ct.App.1957, 299 S.W.2d 587, 591. In any event a tender of a certain amount in full is not an admission that such amount is due as a part of a larger indebtedness. Schreiber v. Pacific Coast Fire Ins. Co., 1950, 195 Md. 639, 75 A.2d 108, 113, 20 A.L.R. 2d 951. Therefore, the jury could have properly returned a verdict of less than, as well as more than, $356.35. Because of the tender, however, a verdict of that amount or less would have been realistically a verdict for appellee, since appellants were entitled to at least the tendered amount regardless of the verdict. Accordingly, the tender did not preclude the possibility of a directed verdict against appellants.
Since the tender did not constitute an admission of liability, it was still incumbent upon appellants to prove not only their claimed damages but also appellee’s liability for such damages under the policy. Appellee moved for the directed verdict on the ground that appellants had failed to present any evidence showing such liability, and the trial court presumably granted the motion on that ground. The task of this court, then, would be to examine the correctness of that ruling.
It must be noted, however, that no copy of the policy appears in the record-on-appeal. An appellate court cannot judge the propriety of a ruling of a lower court where such ruling was necessarily based, at least in part, on a contract, no copy of which is contained in the record-on-appeal. Broward County Port Authority ex rel. Cappelen v. F. M. Rule & Co., Fla.App.1960, 119 So.2d 82, 84. We are, therefore, precluded from examining the correctness of the trial court’s ruling insofar as it was grounded on appellants’ *46failure to prove appellee’s liability under the policy.
Consequently we must affirm the judgment below.
Affirmed.
PIERCE and HOBSON, JJ., concur.
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Latin Am. Benefit Ctr., Inc. v. Raphael Johstoneaux, 257 So. 2d 86 (Fla. 3d DCA 1972)…ere the ruling appealed is necessarily predicated upon said contract, we are precluded from ruling thereon. Broward County Port Authority v. F. M. Rule & Company, Fla.App.1960, 119 So. 2d 82; Holmes v. Shelby Mutual Insurance Company, Fla.App. 1967, 203 So. 2d 44. It is the responsibility and the duty of the appellant to provide the appellate court with a record sufficient to review the matter assigned as error. Merchants National Bank of Jacksonville, Florida v. Grunthal, 39 Fla. 388, 22 So. 685; Conlee Con…
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- Broward Cnty. Port Auth. v. F. M. Rule & Co., 119 So. 2d 82 (Fla. 2d DCA 1960)