Hartford Acc. & Indem. Co. v. Warren, 5--4826

• Decision Date: 10 March 1969
• Docket Number: No. 5--4826,5--4826
• Citation: 246 Ark. 323,438 S.W.2d 31
• Parties: HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. Fred H. WARREN, Appellee.
• Court: Arkansas Supreme Court

Page 31

438 S.W.2d 31

246 Ark. 323

HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. Fred H. WARREN, Appellee.

No. 5--4826.

Supreme Court of Arkansas.

March 10, 1969.

Daggett & Daggett, Marianna, for appellant.

Jake Brick, West Memphis, for appellee.

FOGLEMAN, Justice.

Hartford Accident & Indemnity Company appeals from a judgment in favor of Fred H. Warren under the uninsured motorists clause of a policy issued to him by Hartford. The principal point urged by appellant for reversal is its contention that a judgment against the uninsured motorist was a condition precedent to this action.

The policy in question contained clauses identical with those in the policy involved in MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W.2d 252. In that case we held that when consent of the company to an action against the uninsured motorist was required to make a judgment therein conclusive on the company, the insured had the option to sue either his insurance company or the uninsured motorist or both. We deem this decision to be controlling here. This does not in any way prevent the insurance company from cross complaining against the uninsured motorist in an action brought against it, nor does it prevent a separate action by the insurance company against the uninsured motorist after a judgment in favor of its insured has been paid by it.

Appellant urges that the policy in this case does not contain the 'consent' clause which influenced our decision in the Bradshaw case. In this respect, appellant is in error as the policy exhibited does contain this clause. The fact that reliance was placed on the lack of consent in the Bradshaw case but not in this case makes no difference in the application of the principle involved.

Appellant also contends that the judgment for $12,000 is excessive and reflects the passion and prejudice of the jury.

There was evidence showing that appellee was earning $90 per week at the time of his injury. Warren's testimony was in substance:

During the rush season he was also paid for overtime. Although he had an arthritic condition, it had never caused him to miss any work prior to the collision in which he was injured. After the automobile he was driving was struck from the rear by the uninsured motorist, Warren went to the emergency room of the hospital in West Memphis with soreness in the stomach area. The next morning he returned for a more thorough examination by Dr. Peeples. At that time his neck was beginning to get sore and his back stiff. He was hurt from the back of his neck down through his legs. He missed one or two days of work at this time. Because of his condition, his foreman got others to do some of the work he was normally expected to do. The foreman actually did some of it himself. Warren was given light work and was assigned the duty of instructing newly employed persons. About two months after the collision Dr. Peeples prescribed traction and placed Warren in the hospital for ten days. During this stay in the hospital, Warren only remained in traction about three hours. He was removed from traction by the doctor because of the severe pain it was causing. He has obtained no relief from his condition and cannot lie flat on his back even long enough for the taking of x rays without severe pain...