The opinion of the court was delivered by: John E. Miller, District Judge.
On January 16, 1956, this case was tried to the Court, without
a jury, and at the conclusion of the trial the Court took the
case under advisement pending receipt of citations of authorities
from the attorneys for the respective parties. The citations of
authorities have been received, and the Court, having considered
the pleadings, ore tenus testimony of the witnesses,
stipulations, exhibits, and citations of authorities, now makes
and files herein its Findings of Fact and Conclusions of Law,
1. Plaintiff is a Delaware corporation and is licensed to do
and is doing business in the State of Arkansas.
The defendant is a citizen of the State of Arkansas and resides
in Fayetteville, Arkansas.
The amount in controversy, exclusive of interest and costs,
exceeds the sum of $3,000.
2. On November 2, 1954, plaintiff issued a policy of automobile
liability insurance to the defendant, Walter (W.W.) Heflin,
covering a 1941 Chevrolet club coupe. This policy was in full
force and effect at all times material herein.
Limits of liability stated in the policy are: (1A) bodily
injury liability, $10,000 each person, (A) $20,000 each accident;
(B) property damage liability, $5,000 each accident.
Among other things the policy contains the following
"Section II. Defense, Settlement, Supplementary
"As respects the insurance afforded by the other
terms of this Policy under Coverages A and B the
"(a) 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; * * *"
"Section IV. Automobile Defined, Trailers, Two or
More Automobiles (Including Automatic Insurance).
"(a) Automobile. Except where stated to the
contrary, the word `automobile' means:
"(1) Described Automobile — the motor vehicle
or trailer described in this Policy;
"(3) Temporary Substitute Automobile — under
Coverages A, B and C, an automobile not owned by the
Named Insured while temporarily used as the
substitute for the described automobile while
withdrawn from normal use because of its breakdown,
repair, servicing, loss or destruction; * * *
"Section V. Use of Other Automobiles. If the Named
Insured is an individual who owns the automobile
classified as `pleasure and business' or husband and
wife either or both of whom own said automobile, such
insurance as is afforded by this Policy for bodily
injury liability, for property damage liability and
for medical payments with respect to said ...