M. F. A. Mut. Ins. Co. v. White
| Decision Date | 11 April 1960 |
| Docket Number | No. 5-2048,5-2048 |
| Citation | 232 Ark. 28,334 S.W.2d 686 |
| Parties | M. F. A. MUTUAL INSURANCE COMPANY, Appellant, v. Mary WHITE and George Hawkins, Appellees. |
| Court | Arkansas Supreme Court |
Hardin, Barton, Hardin & Garner, Ft. Smith, for appellant.
Douglas O. Smith, Jr., Warner, Warner & Ragon, Ft. Smith, Donald Poe, Waldron, for appellees.
Appellant, M. F. A. Mutual Insurance Company, as the insurer of George Hawkins on an automobile liability policy, instituted this suit for a declaratory judgment contending that George Hawkins' failure to notify them of the pendency of a suit against him by Mary White (Scott Circuit Court Case No. 2767) relieved them from liability as insurers. Appellee, Mary White, upon becoming cognizant of Hawkins' failure to notify the insurance company of the pendency of suit No. 2767, filed an identical action as suit No. 2783 in the same court and later dismissed without prejudice suit No. 2767.
The pertinent parts of the insurance policy here in question, which was admittedly in full force and effect on the date of the accident, are as follows:
* * *
* * *
'Action against MFA Mutual: No action shall lie against MFA Mutual, under any Coverage, until after full compliance with all the terms of this policy, nor, as respects Coverages A and B, until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and MFA Mutual * * *'
From an adverse decree appellant appeals contending that: 'Waiver, estoppel and res judicata are bars to Scott County Circuit Court Case No. 2783,' and 'The failure of Hawkins in turn over the summons in Case No. 2767 relieves appellant of any liability because of the breach of the policy conditions.'
The material facts in this case are undisputed. Appellee, George Hawkins, was served with summons in action No. 2767 on June 16, 1958, and did not notify appellant of the service until some 28 days thereafter. This lapse of time admittedly exceeds the statutory answer time. If this were the only issue before the Court in the case at bar we would be inclined to agree with the contentions of appellant, but that is not the case. Here, Appellee White dismissed her action No. 2767 without prejudice, even though at the time of dismissal she was entitled to a default judgment by authority of § 29-401 Ark.Stats. The case was never finally submitted for a judgment and no judgment was obtained. Section 27-1405, Ark.Stats. is as follows:
'Dismissal of actions.--An action may be dismissed without prejudice to a future...
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