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HORAGE MANN MUTUAL CASUALTY COMPANY v. BELL

September 30, 1955

HORACE MANN MUTUAL CASUALTY COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF,
v.
HOWARD K. BELL, JAMES MAYER, LEO JOE WESLEY, J.L. MARTIN, JAMES BELLAR, JACK ROSE, MILDRED ROSE, CLEVELAND HOLLAND AND BERTHA HOLLAND, DEFENDANTS.



The opinion of the court was delivered by: John E. Miller, District Judge.

Statement

On August 31, 1955, this case was tried to the Court, without a jury, and at the conclusion of the trial the Court orally announced its decision in favor of the plaintiff. The Court requested counsel for plaintiff to prepare formal findings of fact and conclusions of law. Plaintiff complied with Court's request, and on September 1, 1955, the Court filed the findings of fact and conclusions of law prepared by plaintiff's attorney. On the same date the Court entered its judgment in favor of plaintiff in accordance with the conclusions of law.

On September 8, 1955, the defendants filed a motion for new trial, and subsequent thereto the parties filed memorandum briefs in support of and in opposition to the motion. Thus the motion is now ready for final disposition. After fully considering the motion, the Court has concluded that the original findings of fact, conclusions of law, and judgment were and are erroneous, and should be amended, and that a judgment should be entered in accordance with the amended findings of fact and conclusions of law.

Findings of Fact (As Amended)

1.

Plaintiff issued to the defendant Bell its policy of automobile liability insurance describing a 1950 Plymouth Deluxe four-door sedan which was owned and used by the defendant for pleasure and business as a family car prior to and subsequent to the month of February, 1955. Prior to February 26, 1955, the above-described automobile was the only automobile owned by said defendant. The policy afforded coverage for bodily injury, property damage, comprehensive and $50 deductible collision.

2.

On the afternoon of February 26, 1955, the defendant Bell purchased and received delivery from Koch Auto Sales, Dardanelle, Arkansas, a 1952 Studebaker halfton pickup truck, paying $50 down and executing his instalment note for the deferred balance of the agreed purchase price plus the amount of an insurance premium for a policy insuring the Studebaker truck against comprehensive and $50 deductible collision issued by the General Bonding and Insurance Company, which policy was orally bound and put into effect by that company's agent at the time of the delivery of the truck on the afternoon of February 26, 1955, and which policy named Howard K. Bell as insured and Bank of Russellville, as its interest might appear.

The defendant Bell had nothing to do with the purchase of insurance on the pickup truck. This transaction was handled entirely by Koch Auto Sales and Nobel Campbell, insurance agent of General Bonding and Insurance Company, and, as a matter of fact, Campbell handled the insurance on all of Koch's sales.

3.

Defendant Bell purchased the pickup truck to conserve his automobile and eventually to replace it. The truck was to be used both in the performance of his duties as vocational instructor of agriculture at the Dardanelle, Arkansas, high school, and for personal, pleasure, family and business purposes. In other words, the pickup truck was to be used for the same purposes his automobile had been and was being used.

4.

On the morning of February 28, 1955, said truck was being used by Bell in the performance of the duties of his occupation as such instructor in the conduct of one of his classes and was with his permission being driven by one of his students and occupied by three others of his students when it was involved in a collision on State Highway 22 at the entrance to the farm on which Bell conducted classes and with a car owned, driven and occupied by the defendants, Holland and Rose and their wives, resulting in damages to the Rose car and personal injuries to Mr. Rose and Mr. and Mrs. Holland.

5.

The defendants, Holland and Rose and their wives, are asserting claims for damages against the other defendants by reason of said collision between the Rose car and Bell's Studebaker truck.

6.

Plaintiff, at the time of the issuance of its policy of insurance described in Finding No. 1 above, and on all dates subsequent thereto, had filed with the office of the Commissioner of Insurance of Arkansas rates for the types and kinds of property damage and public liability automobile insurance coverage which it was authorized to write in this State. Plaintiff had filed rates for private passenger automobiles to be used for "pleasure and business" and same had been accepted and approved by the State Insurance Commissioner. Plaintiff had notified the State Insurance Commissioner in writing that it did not write policies on motor vehicles for "commercial" use and had filed no rates with the Insurance Commissioner for that type of coverage and was not authorized to insure motor vehicles for commercial use in the State of Arkansas at the time of the issuance of its policy described in Finding No. 1 above nor at any time subsequent thereto.

7.

Defendant Bell's said Studebaker pickup truck was an additional vehicle and did not replace the 1950 Plymouth four-door sedan described in the plaintiff's ...


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