The opinion of the court was delivered by: John E. Miller, District Judge.
This cause was tried to the Court on September 26, 1955, and
the Court having considered the arguments and contentions of the
parties, along with the evidence adduced by them, now makes and
files herein its findings of fact and conclusions of law,
The plaintiff is a citizen of the State of Missouri and is
engaged in acting as Attorney in Fact for Subscribers at Casualty
Reciprocal Exchange of Kansas City, Missouri, which is an
inter-insurance association, and is authorized to issue policies
of insurance in the State of Arkansas.
The defendants are each citizens of the State of Arkansas and
reside in Washington County, Arkansas.
The amount in controversy exceeds the sum of $3,000, exclusive
of interest and costs.
The plaintiff entered into a contract of public liability
insurance with Mrs. L.E. Johnson of Springdale, Arkansas, which
was in full force and effect on February 7, 1955. The policy
provides that the plaintiff will "* * * pay on behalf of the
insured all sums which the insured shall become legally obligated
to pay as damages because of bodily injury, sickness, or disease,
including death at any time resulting therefrom, sustained by any
person, caused by accident and arising out of the ownership,
maintenance, or use of the automobile." The automobile was
specifically described in Item 4 of the Declarations as a 1952
Buick Four-Door Sedan, Motor No. 69211505.
Insuring Agreement III is as follows:
"With respect to the insurance for bodily injury
liability, and for property damage liability, the
unqualified word `insured' includes the named insured
and also includes any person while using the
automobile and any person or organization legally
responsible for the use thereof, provided the actual
use of the automobile is by the named insured or with
his permission. * * *"
As a result of the collision of the insured automobile with the
pickup truck of defendant Sisco and the automobile owned by
defendant Wayne Kinion, they made a demand upon the defendant
Glen David Eicher and the plaintiff for the payment of a sum of
money in excess of $3,000 for injuries and damages which they
claimed to have sustained in said collision. The defendant Glen
David Eicher has demanded that the plaintiff defend any and all
actions which may be instituted by the various claimants against
him and make payment of any and all damages which might be
adjudged against him arising from the operation of the insured
Under Insuring Agreement II, the plaintiff obligated himself to
"defend any suit against the insured alleging such injury,
sickness, disease, or destruction, and seeking damages on account
thereof, even if such suit is groundless, false, or fraudulent;
but the company may make such ...