MFA Mutual Insurance Company v. Mullin

• Decision Date: 20 November 1957
• Docket Number: Civ. A. No. 350.
• Citation: 156 F. Supp. 445
• Parties: M.F.A. MUTUAL INSURANCE COMPANY, a Corporation, Plaintiff, v. Howard R. MULLIN, Administrator of the Estate of William Ross Mullin, Deceased, Howard R. Mullin, Individually, and Grant LeRoy Brindle, Defendants.
• Court: U.S. District Court — Western District of Arkansas

156 F. Supp. 445

M.F.A. MUTUAL INSURANCE COMPANY, a Corporation, Plaintiff, v.Howard R. MULLIN, Administrator of the Estate of William Ross Mullin, Deceased, Howard R. Mullin, Individually, and Grant LeRoy Brindle, Defendants.

Civ. A. No. 350.

United States District Court W. D. Arkansas, Fayetteville Division.

November 20, 1957.

COPYRIGHT MATERIAL OMITTED

Crouch & Jones, Springdale, Ark., for plaintiff.

Perkins & Ball, James R. Hale, Fayetteville, Ark., for defendants.

JOHN E. MILLER, District Judge.

Statement

This declaratory judgment action was tried to the Court without a jury on August 28, 1957.At the conclusion of the trial the case was taken under advisement by the Court pending the preparation of a transcript of the evidence by the Court Reporter and the submission of briefs by the parties.The briefs have been received, and the Court, having considered the pleadings, evidence, and briefs of the parties, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact

1.

The plaintiff is a Missouri corporation authorized to do, and doing, business in the State of Arkansas.The defendant, Howard R. Mullin, is the duly appointed and acting Administrator of the Estate of William Ross Mullin, deceased, and is a citizen and resident of Washington County, Arkansas.The defendant, Grant LeRoy Brindle, a minor, is also a citizen and resident of Washington County, Arkansas.The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

2.

In June of 1956 the deceased, William Ross Mullin, purchased a 1949 Plymouth 2-door automobile.At that time he was a minor 17 years of age, and the automobile was purchased in the name of his father, Howard R. Mullin.Title to the automobile was issued in the name of Howard R. Mullin, but the automobile was actually paid for and owned by William Ross Mullin.The automobile was never driven by Howard R. Mullin.

On June 9, 1956, plaintiff issued its automobile liability insurance policy, No. 1-540354, to Howard R. Mullin, covering the 1949 Plymouth.It was stated in the policy that the business or occupation of the named insured was "farmer".The policy was effective from July 9, 1956, to July 9, 1957, and the coverage for bodily injury liability was $5,000 each person or $10,000 each accident, and the property damage liability was $10,000 each accident.In paragraph 7 of the declarations it is stated "The named insured is the sole owner of the automobile * * *".

Under "Insuring Agreements" the policy, among other things, provides:

"1.Coverage A — Bodily Injury Liability — MFA Mutual will pay for the insured all damages which the insured shall become legally obligated to pay because of bodily injury sustained by any person, caused by accident and arising out of the ownership, maintenance, or use, including the loading and unloading, of the owned automobile, a substitute automobile or a non-owned automoblie.

"2.Coverage B — Property Damage Liability — MFA Mutual will pay for the insured all damages which the insured shall become legally obligated to pay because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance, or use, including the loading and unloading of the owned automobile, a substitute automobile or a non-owned automobile.

"3.Defense and Settlement of Claims and Suits — With respect to such insurance as is afforded under Coverages A and B, MFA Mutual will defend any claim or suit for such damages against the insured, even if groundless, false, or fraudulent, but MFA Mutual may settle any claim, or suit as it deems expedient.

* * * * * *

"6.Definition of Insured — With respect to the insurance afforded under Coverages A and B, the unqualified word `insured' includes the named insured, and if an individual, his spouse, and:

a. With respect to the owned automobile or a substitute automobile, any person or organization using it or legally responsible for its use, provided the actual use of the automobile is by the named insured or spouse, or with permission of either; * * *

* * * * * *

"9.Financial Responsibility Law — Coverages A and B shall comply with the provisions of any applicable motor vehicle financial responsibility law to the extent of the coverage and limits of liability required by such law, but not in excess of the policy limits of liability, when this policy is certified as proof of financial responsibility for the future under the provisions of any such law. * * *"

Under "Conditions" the policy provides:

"1.Effect of Policy Acceptance: By acceptance of this policy, the named insured agrees that the statements in the Declarations are his agreements and representations, and that this policy embodies all agreements, relating to this insurance, existing between himself and MFA Mutual or any of its agents.

"2.Insured's Duty When Loss Occurs — Notices to MFA Mutual — In the event of accident, occurrence or loss, written notice, containing all particulars shall be given by or for the insured to MFA Mutual as soon as practicable, * * *.

"If claim is made or suit is brought against the insured, he shall immediately forward to MFA Mutual every demand, notice or summons received by him or his representative. * * *

* * * * * *

"4.Assistance and Cooperation of the Insured: With respect to Coverages A, B, E, F, G and H, the the insured shall cooperate with MFA Mutual, disclosing all pertinent facts known or available to him, and upon MFA Mutual's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. * *

* * * * * *

"6.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, * * *.

"7.Subrogation: With respect to Coverages A, B, E, F, G and H, upon payment of the loss, MFA Mutual shall succeed to all the insured's rights of recovery therefor, and the insured shall do whatever is necessary to secure such rights and do nothing after loss to prejudice them."

William Ross Mullin used the car until November 1956, when he went into the Army.At that time he left the car at the home of his father, Howard R. Mullin, near Lincoln, Arkansas.William Ross Mullin was stationed in Virginia, and apparently he received a Christmas leave because he returned to his father's home on December 24, 1956.During the time he was gone the car was parked under a tree at his father's home, and was not used by anyone.

It appears that William Ross Mullin was attempting to sell the automobile to Grant LeRoy Brindle, and that William Ross Mullin had authority of his father, Howard R. Mullin, to do so.

On the afternoon of December 28, 1956, William Ross Mullin left his father's home in the automobile, taking with him his sister.It is not clear from the evidence whether Grant LeRoy Brindle was at the Mullin home and left with William Ross Mullin and his sister, or whether he joined them later.In any event, neither Howard R. Mullin nor his wife gave Grant LeRoy Brindle express permission to drive the automobile.

4.

All the evidence with regard to how William Ross Mullin met his death is hearsay evidence.It does appear from the record, however, that at some later time in the evening of December 28William Ross Mullin's sister was returned to her home, and that on the early morning of December 29, 1956, the automobile in question was involved in an accident on Highway 51 in Washington County, Arkansas, near the town of Cincinnati, Arkansas.It also appears from the record that the automobile was being driven by Grant LeRoy Brindle, and that an automobile driven by A. M. Prescott was also involved in the mishap.William Ross Mullin died as a result of the injuries he sustained in the accident.

Howard R. Mullin learned of the death of his son on the morning of December 29, and on that day or the next day contacted E. J. Ball, an attorney associated in the practice of law with Rex W. Perkins in Fayetteville, Arkansas.Ball began an investigation of the accident, and among other things took a statement from Grant LeRoy Brindle on the evening of December 30, 1956.

On December 31, 1956, Ball wrote the plaintiff's claims department as follows:

"Please be advised that the 1949 Plymouth Automobile covered by the captioned Insurance Policy was involved in an automobile collision on the night of December 28, 1956 near Cincinnati, Arkansas.A. M. Prescott was the driver of the other automobile and he has been charged with manslaughter.

"This office represents Mr. Howard R. Mullin and the estate of the decedent."

No other notice of the accident was given to plaintiff by Howard R. Mullin or Grant LeRoy Brindle.

On January 15, 1957, Robert E. Pettit, plaintiff's Claims Manager, wrote Ball acknowledging receipt of his letter of December 31, 1956, and stating "Our representative, Marvin Christopher, at Springdale, Arkansas, will contact you in the near future in regard to this matter".

Howard R. Mullin, through his attorneys, Perkins and Ball, asserted a claim against Prescott, the driver of the other automobile involved in the accident, and against Prescott's insurance carrier, Southern Farm Bureau Casualty Insurance Company.Negotiations were conducted relating to this claim, and on January 30, 1957, Prescott's insurance carrier, through its attorney, Charles R. Garner, offered to settle the claim of Mullin against Prescott for $3,000, provided Howard R. Mullin's attorneys would obtain a release from Grant LeRoy Brindle in favor of Prescott for the sum of $50.Prescott's insurance carrier wanted to dispose of the whole matter at one time, and would not settle with Mullin unless it could also get a release from Brindle.Howard R. Mullin, acting through his attorneys, agreed to accept this offer of settlement.

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