Southern Surety Co. v. Puryear-Meyer Grocer Co.
| Decision Date | 30 January 1922 |
| Docket Number | 112 |
| Parties | SOUTHERN SURETY COMPANY v. PURYEAR-MEYER GROCER COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Greene Circuit Court, First Division; R. H. Dudley Judge; affirmed.
Affirmed.
D G. Beauchamp, for appellant.
Appellant did not waive its right to avail itself of the covenants of the policy with reference to notice of claim and notice of suit, by its appearance and defense of the second suit instituted by Scott. A waiver is the intentional relinquishment of a known right. 82 F. 406, 47 L. R. A. 450; 32 Conn. 21, 85 Am. Dec. 240; 66 Conn. 227, 50 A. S. R. 80; 127 Ill. 364; 11 A. S. R. 121.
Under the contract appellant was bound to appear and defend the action, and by doing so cannot be held to have waived any right.
Appellee breached every condition of the policy he was in duty bound to perform.
Appellant had the right to plead res judicata and secure the dismissal of the suit it was called on to defend. The original judgment recited service of summons upon appellee and is therefore valid and binding. 72 Ark. 265; 105 Ark. 5.
Appellee interfered with the conduct of the suit, and failed to cooperate with the appellant, as required by the policy.
The execution sued out and paid was upon the second judgment, while there was a prior valid judgment outstanding.
Instructions 1, 2 and 3 are bad in that they ignore the defenses of appellant with respect to the compliance by appellee with the terms of the contract.
M. P. Huddleston, Fuhr & Futrell, for appellee.
Appellant took charge ofthe second suit with full knowledge of the prior suit and judgment, without any notice to the assured that it did not intend to waive any of its rights as to any matter of defense and non- liability, and is therefore estopped to plead in this suit that it did not waive any of its rights. Joyce on Ins. vol. 4, p. 4812 and 4813; 143 S.W. 438; 109 N.W. 410; 81 P. 826; 210 N.Y. 235; L. R. A. 1915-A 629.
By pleading res judicata appellant assumed inconsistent positions, in that while pretending to represent appellee it was taking advantage of the plea to fasten on the appellee the validity of the first judgment. 235 L. R. A. 1915-A 629; 143 S.W. 438.
Appellee did not interfere with the litigation.
Appellee, a domestic corporation, is engaged in the mercantile business in the city of Paragould, and operates one or more automobile trucks in connection with its business. One of these trucks collided with and damaged an automobile owned by G. W. Scott, and the latter made claim against appellee for reimbursement for the injury thus inflicted. Appellee carried with appellant a policy of indemnity insurance covering liability of the kind which includes Scott's claim against appellee.
Scott obtained a default judgment in the common pleas court of Greene County for the amount of his claim, and then demanded payment of the judgment, but appellee refused to pay the judgment on the ground that it had not been served with process in the action. The record in that case does not show that any process had been issued or served. Scott then abandoned the judgment and caused another summons to be issued and served on appellee, who notified appellant of the pendency of the suit and forwarded to appellant a copy of the summons. Appellant, through its attorneys, took charge of the litigation and appealed to the circuit court from the second judgment rendered against appellee, and after the cause reached the circuit court on appeal, those attorneys interposed a defense of res judicata, based on the former judgment rendered in the common pleas court. No other defense was interposed. The court sustained his plea, and entered a judgment accordingly, but the next day, at the request of one of the managing officers of appellee company set aside the order sustaining the plea and continued the case until the next term of the court. Subsequently appellee paid the judgment, and the appeal from the common pleas court was dismissed by consent. Appellee then instituted the present action against appellant to recover on the policy of indemnity...
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