The opinion of the court was delivered by: John E. Miller, District Judge.
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
Findings of Fact (As Amended)
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.
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.
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.
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.
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.
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.
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 ...