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ROBERTS v. COMMERCIAL STANDARD INS. CO.

February 8, 1956

BARBARA BEAYRD ROBERTS, PLAINTIFF,
v.
COMMERCIAL STANDARD INSURANCE COMPANY, DEFENDANT.



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

Statement

On May 6, 1955, plaintiff, Barbara Beayrd Roberts, filed her complaint herein against the defendant, Commercial Standard Insurance Company.

In many respects the complaint is vague and contradictory and definitely prolix.

The plaintiff alleged that on November 21, 1951, the defendant was the insurer of one Truman Wilkins, a member of the United States armed forces, stationed at Fort Sill, Oklahoma; that the policy of insurance provided indemnity for personal injuries and property damage and among other things obligated the defendant to pay a judgment rendered against its assured, Truman Wilkins; that the plaintiff while riding as a guest in the insured automobile, being driven by the insured Truman Wilkins, was seriously and permanently injured on November 21, 1951; that following the injury she was admitted to the Clarksville Municipal Hospital and Dr. Robert H. Manley of Clarksville was her attending physician.

That on January 17, 1952, while plaintiff was still confined to the hospital, Robert Flocks and J.R. Tankersley, servants, agents, and employees of defendant, and representing themselves to be such, requested Dr. Manley's permission to interview the plaintiff; that the said Robert Flocks represented to Dr. Manley that he was an employee of the defendant and that Truman Wilkins was its assured; that the defendant would pay him for his services, pay the hospital and special nurses for the services of each and all, and requested and confirmed Dr. Manley's employment as a physician for the plaintiff. The said representatives of the defendant knew at the time of obligating the defendant to pay such sums that plaintiff was permanently injured, but did not advise Dr. Manley or any other person of any policy coverage limit.

That, although Dr. Manley advised the said Flocks and Tankersley that plaintiff was suffering pain and that she was not physically or mentally able to transact any business, the said representatives of the defendant went directly to the hospital and gained admission to the private room of the plaintiff. There the said Flocks and Tankersley stated to attendants in the hospital and in the room of plaintiff and to her in the presence of her special nurse, that they were employed by the defendant; that Truman Wilkins was the company's assured and that the company would pay her bills and settle with her, but did not state to plaintiff the amount of coverage or make any mention of any limit for expenses or settlement; that said representations were false and fraudulent; that defendant's agents had no intention at the time of making the said promise, or at any other time, of performing the promise and contract with the plaintiff; that the said Flocks and Tankersley made said representations with the full knowledge of their falsity and with the design and intent that plaintiff should believe said representations and promises and should act in reliance thereon; that the plaintiff did believe said representations and proceeded to answer questions propounded to her by said Flocks and Tankersley, which questions and answers were taken in shorthand by Clyman Izard, court reporter. That she was not furnished a copy of the statement but in accordance with the previous instructions of Dr. Manley she did not sign any statement.

That on March 21, 1955, the plaintiff obtained a judgment against the said Truman Wilkins for the sum of $30,000 because of the injuries she sustained while riding as a guest in the insured automobile.

On page 7 of the complaint plaintiff attempted to summarize the preceding allegations in her complaint as follows:

    "Plaintiff states that as a result of defendant's
  misrepresentations, bad faith, and deception, that
  she has been embarrassed, humiliated, and injured in
  her way of life, and has not been able to protect her
  health and provide treatment on account of
  defendant's failure to act in good faith, and that
  plaintiff has suffered mental anguish and great
  expense and worry, and is entitled to exemplary
  damages."

The prayer of the complaint is as follows:

    "Wherefore, premises seen, plaintiff prays that she
  have and recover judgment against the defendant,
  Commercial Standard Insurance Company for the sum of
  Thirty Thousand Dollars ($30,000.00), the amount of
  plaintiff's Judgment herein for her personal
  injuries, pain and suffering, with interest at the
  rate of six per cent from March 21, 1955.
    "Plaintiff prays that she have and recover judgment
  against the defendant for the further sum of twelve
  per cent of said Thirty Thousand Dollars ($30,000.00)
  and accrued interest, from and after April 1, 1955
  for statutory penalty imposed by law, until paid.
    "Plaintiff further prays that she have and recover
  judgment against the defendant for the sum of Twenty
  Thousand Dollars ($20,000.00) as exemplary damages.
    "Plaintiff prays that she have and recover judgment
  against the defendant for a total sum of Fifty
  Thousand Dollars ($50,000.00) in principal sum,
  together with interest upon each amount as is prayed
  for hereinabove and as provided by law; and for all
  costs herein expended.
    "Plaintiff prays that her attorney herein be, by
  this Court, allowed a reasonable and adequate fee for
  his services herein rendered, said services being
  required on account of the defendant's refusal to pay
  plaintiff's judgment and denial of any and all
  liability therefor on April 1, 1955.
    "Plaintiff prays for all further and proper
  relief."

There was no motion to make the complaint more definite and certain under Rule 12(e), Fed.Rules Civ.Proc., 28 U.S.C.A. but defendant filed its answer on May 25, 1955, in paragraph 1 of which defendant alleged:

    "The Complaint does not state a claim upon which
  relief can be granted for the following reasons:
    "(a) Plaintiff cannot maintain an action on a
  policy of insurance issued to Truman Wilkins without
  first complying with the provisions of the Arkansas
  Statutes which require that first an execution be
  issued against Truman Wilkins and be returned
  unsatisfied.
    "(b) The allegations of the Complaint that the
  Defendant's agents, servants and employees made an
  oral promise on January 17, 1952, to pay some
  undisclosed amount in excess of the policy limits, do
  not state a cause of action in contract but even if
  they did, the face of the Complaint

  discloses it is barred by limitations.
    "(c) The Complaint does not state a cause of action
  in tort for fraud. The allegations in substance are
  that a promise to pay was made with intent not to
  perform which, if true, could only create a cause of
  action in contract. The allegations of the Complaint
  that the obtaining of the statement was against the
  doctor's order and by the allegedly false promise,
  does not state a cause of action nor does the
  Complaint state any facts showing or in anywise
  indicating that the Plaintiff suffered any loss or
  damage by reason of the taking of said statement.
  Even if a cause of action in tort is stated in the
  Complaint, the alleged cause of action is shown on
  the face of the Complaint to be barred by
  limitations.
    "(d) The Plaintiff in this action seeks to recover,
  under an insurance policy, the amount of $30,000.00.
  The Complaint and exhibits thereto show the
  applicable maximum extent of the coverage of the
  policy issued by the defendant to Truman Wilkins to
  be $5,000.00. Under the Statute authorizing a
  judgment creditor to maintain an action against the
  company issuing a policy, the Plaintiff can in no
  event maintain an action for more than the maximum
  amount of the liability stated in the policy."

In paragraphs III and IV of the answer defendant alleged:

"III

    "The Defendant admits that it issued a policy of
  automobile liability indemnity insurance to Truman
  Wilkins and that the policy was in force on November
  21st, 1951, as alleged in Paragraph Number 5 of the
  Complaint, but denies other allegations contained in
  Paragraph Numbered 5. The policy of the automobile
  indemnity insurance was issued on October 18, 1951,
  for a period of one year, and provided that it would
  indemnify Wilkins for any judgment obtained against
  him arising out of the ownership, maintenance or use
  of the certain automobile described therein. It
  further provided that Wilkins would cooperate at all
  times with the defendant in the defense of any action
  brought against him, and that he would, at his own
  expense, attend all hearings and trials in connection
  therewith. The original of the policy was delivered
  to Wilkins, and the Defendant has not seen it since
  delivery. A true copy of the policy is attached
  hereto, marked Exhibit `A' and made a part hereof.
                          "IV
    "The cause of action of Barbara Jean Beayrd (being
  the Plaintiff herein) against Truman Wilkins was
  called for trial in the Circuit Court of Johnson
  County, Arkansas, on March 22, 1955. Prior to the
  date of trial, Wilkins was notified by letter at his
  last known place of residence at Clarksville,
  Arkansas, of the date and time of trial. Wilkins was
  in Clarksville, Arkansas, on March 19 and was seen in
  the downtown section of Clarksville, Arkansas, he did
  not contact or confer with counsel for the Defendant
  herein. On March 21, 1955, counsel for the defendant
  were called by Wilkins by long distance from
  Anadarko, Oklahoma, at which time Wilkins stated that
  his wife was in the hospital there, his car was in a
  garage, and that he was financially unable to obtain
  funds to make the trip to Clarksville, Arkansas, for
  the trial. Whereupon, counsel for the Commercial
  Standard Insurance Company, being advised by him that
  the cost would be $14.00 or $15.00 immediately
  telegraphed the sum of $20.00 to Wilkins and
  requested that he appear for the trial. Although the
  money was delivered to Wilkins at Anadarko, Oklahoma,
  he did not appear

  at Clarksville, Arkansas, at any time during the
  course of the trial of the cause. At the time the
  case of Barbara Jean Beayrd versus Truman Wilkins was
  called for trial, counsel for the defendant stated
  the foregoing facts to the Court and the attorney for
  Plaintiff and requested permission to withdraw from
  the case because the non-cooperation of Wilkins
  constituted a breach of the policy. The trial court
  refused to permit counsel for Defendant to withdraw
  and insisted that counsel continue and try the case,
  stating that it would be without any prejudice to the
  rights of the Commercial Standard Insurance Company,
  Defendant herein. The court refused to grant a
  continuance, and required the trial to proceed. A
  copy of said proceedings is attached hereto, marked
  Exhibit `B', and made a part hereof. The action of
  Wilkins in his failure to cooperate constituted a
  breach of the terms of his policy and seriously
  damaged the Defendant herein since it deprived the
  Defendant of a full presentation of the facts for the
  consideration of the jury. This breach on his part
  relieved the Defendant herein of any obligations
  under the policy."

The allegations of the complaint were specifically denied and the prayer of the answer was that the plaintiff recover nothing and that her complaint be dismissed.

On August 23, 1955, defendant filed a motion for judgment on the pleadings or for summary judgment, and supported the motion by the affidavit of G. Byron Dobbs, the deposition of Dr. Sylba Adams, and the policy of insurance issued by defendant to Truman Wilkins.

On September 6, the plaintiff filed a response to the motion but did not support her response with any affidavits or other documents.

On September 14, 1955, the Court by letter, a copy of which was filed in the Clerk's office, advised the attorneys for the respective parties that the motion for judgment on the pleadings or for summary judgment would be overruled, and stated therein the reasons that prompted the Court to deny the motion. An order was entered in accordance with said letter on the next day, September 15, 1955. Upon receipt of the letter the attorney for plaintiff advised the Court that he desired to withdraw his request for a jury trial and to waive a jury and that the case be tried to the court. After considerable delay the case was tried to the Court on January 20, 1956. At the conclusion of the introduction of the testimony by the respective parties the Court took the case under advisement and requested that counsel file briefs in support of their contentions. The briefs have been received and have been considered by the Court, together with all the testimony and exhibits, and the Court now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact

No. 1

The plaintiff is a citizen of Arkansas and resides in Scott County within the jurisdictional limits of this Court.

The defendant is a corporation organized under the laws of the State of Texas and is licensed to do business and is engaged in business in the State of Arkansas.

The amount involved herein exceeds the sum of $3,000, exclusive of interest and costs.

No. 2

On October 18, 1951, the defendant issued its liability indemnity policy of insurance to Truman Wilkins of Route 2, Clarksville, Arkansas, with a coverage limitation of $5,000 for injuries to any one person sustained by virtue of the operation of the insured automobile. The policy specifically provides that the limit of the company's ...


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