
    FIREMEN'S INSURANCE COMPANY v. OLIVER et al.
    
    No. 10895.
    March 20, 1936.
    
      On rehearing, April 4, 1936.
    
      
      Smith, Smith '& Bloodworth, for plaintiff in error.
    
      W. N. Oliver, H. T. Oliver, and Wheeler. <& Kenyon, contra.
   Russell, Chief Justice.

We are of the opinion that the question propounded by the Court of Appeals should be answéred in the negative. From the facts stated in the question it clearly appears that at the time of entering upon the trial the insured and the insurance company were at issue. They were not at grips upon the subject of liability, but the insurance company, admitting liability, said the damage was only $32.50, while the assured himself placed the damage at $620 in his proofs of loss. It was for a jury to say what was the actual damage, and they determined it as being $620. It was only after entry of a judgment upon that verdict that the claim became liquidated.

On motion for rehearing the opinion and headnote heretofore rendered have been withdrawn, and the present opinion substituted therefor.  