Southern Farm Bureau Cas. Ins. Co. v. Gottsponer

• Decision Date: 02 December 1968
• Docket Number: No. 5--4739,5--4739
• Citation: Southern Farm Bureau Cas. Ins. Co. v. Gottsponer, 434 S.W.2d 280, 245 Ark. 735 (Ark. 1968)
• Parties: SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Mrs. Emil (Betty) GOTTSPONER, Appellee.
• Court: Arkansas Supreme Court

Page 280

434 S.W.2d 280

245 Ark. 735

SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Mrs. Emil (Betty) GOTTSPONER, Appellee.

No. 5--4739.

Supreme Court of Arkansas.

Dec. 2, 1968.

Cockrill, Laser, McGehee, Sharp & Boswell, Little Rock, for appellant.

Felver A. Rowell, Jr., Morrilton, for appellee.

HARRIS, Chief Justice.

On May 2, 1967, appellee, Mrs. Emil (Betty) Gottsponer, individually, and as mother and next friend of Marsha Gottsponer, a minor, instituted suit against appellant, Southern Farm Bureau Casualty Insurance Company, seeking a total judgment in the amount of $9,000.00. The complaint alleged that the company had issued a policy of insurance to appellee's husband, insuring him, Mrs. Gottsponer, and their minor daughter, Marsha, against bodily injuries and property damages sustained by reason of loss incurred from any uninsured motorist. It was asserted that about the 28th of February, 1967, Mrs. Gottsponer was driving an insured automobile, within the terms of the policy, when she was negligently struck by James Ross, and uninsured motorist, and, together with her daughter, suffered serious personal injuries. The company answered, admitting that it had issued the policy of insurance to Mr. Gottsponer, that premiums had been paid, and that the coverage existed for the spouse and minor daughter. Appellant also admitted the occurrence of the accident, but denied other allegations, including appellee's assertion that Ross was the driver of an uninsured automobile. Further, appellant filed a third party complaint against Ross, as follows:

'That under the automobile policy here above referred to the policy provides that the company upon payment of any loss covered under this policy shall succeed to all the rights of recovery of the insured or any other person in whose behalf payment is made.

'The Defendant, Southern Farm Bureau Casualty Insurance Company, alleges that if the Plaintiffs are entitled to recover anything then the company is entitled to a judgment over and against the Defendant, James Ross, for any amounts that they pay the Plaintiffs under the terms of the uninsured motorist clause and in the event that a judgment is entered against the Defendant Southern Farm Bureau Casualty Insurance Company, the company should be given a judgment over and against James Ross in that amount.

'Wherefore the Defendant prays for a judgment over and against James Ross as prayed for in the original complaint.'

Thereafter, Ross filed an answer to this complaint, denying each and every material allegation, and also denying each and every material allegation of the Gottsponer complaint. On trial, Mr. and Mrs. Gottsponer testified, as did Richard Branch, a trooper with the Arkansas State Police. These are the only witnesses whose testimony is included in the record. At the conclusion of appellee's case, counsel for appellant made the following motion beyond the presence of the jury:

'The defendant, Southern Farm Bureau Casualty Insurance Company, at the conclusion of the plaintiff's case and after plaintiff having announced they rest, move for a directed verdict for the reason that there is no evidence in the record that James Ross was an uninsured motorist; and the policy specifically provides that this coverage used as the basis for this lawsuit is conditioned upon the policy holder, that insured be involved in an accident with an uninsured motorist, or an uninsured vehicle.'

Counsel for Ross also moved for a dismissal on the grounds that there was no testimony identifying him as the driver of the other vehicle involved in the accident. The court denied both motions, and no further evidence was offered. The jury returned a verdict in favor of Mrs. Gottsponer against appellant in the amount of $4,000.00, and from the judgment so entered, comes this appeal. For reversal, it is simply asserted that the trial court erred in refusing appellant's motion for a directed verdict.

The company's position is predicated on the contention that there was no substantial evidence offered that Ross was the driver of an uninsured automobile within the meaning of Ark.Atat.Ann. § 66--4003 (Repl.1966). ¹ This fact is not disputed by appellee, but she asserts that the fact that Ross was an uninsured motorist was admitted by appellant in its answer, and further, that the third party pleading filed by the company admitted the coverage; that these admissions made out a prima facie case for appellee as far as this question was concerned, and the burden was on appellant to prove otherwise.

We do not agree. The answer...