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M.F.A. MUTUAL INSURANCE COMPANY v. MULLIN

November 20, 1957

M.F.A. MUTUAL INSURANCE COMPANY, A CORPORATION, PLAINTIFF,
v.
HOWARD R. MULLIN, ADMINISTRATOR OF THE ESTATE OF WILLIAM ROSS MULLIN, DECEASED, HOWARD R. MULLIN, INDIVIDUALLY, AND GRANT LEROY BRINDLE, DEFENDANTS.



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

  Statement

This declaratory judgment action was tried to the Court without a jury on August 28, 1957. At the conclusion of the trial the case was taken under advisement by the Court pending the preparation of a transcript of the evidence by the Court Reporter and the submission of briefs by the parties. The briefs have been received, and the Court, having considered the pleadings, evidence, and briefs of the parties, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact

1.

The plaintiff is a Missouri corporation authorized to do, and doing, business in the State of Arkansas. The defendant, Howard R. Mullin, is the duly appointed and acting Administrator of the Estate of William Ross Mullin, deceased, and is a citizen and resident of Washington County, Arkansas. The defendant, Grant LeRoy Brindle, a minor, is also a citizen and resident of Washington County, Arkansas. The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

2.

In June of 1956 the deceased, William Ross Mullin, purchased a 1949 Plymouth 2-door automobile. At that time he was a minor 17 years of age, and the automobile was purchased in the name of his father, Howard R. Mullin. Title to the automobile was issued in the name of Howard R. Mullin, but the automobile was actually paid for and owned by William Ross Mullin. The automobile was never driven by Howard R. Mullin.

On June 9, 1956, plaintiff issued its automobile liability insurance policy, No. 1-540354, to Howard R. Mullin, covering the 1949 Plymouth. It was stated in the policy that the business or occupation of the named insured was "farmer". The policy was effective from July 9, 1956, to July 9, 1957, and the coverage for bodily injury liability was $5,000 each person or $10,000 each accident, and the property damage liability was $10,000 each accident. In paragraph 7 of the declarations it is stated "The named insured is the sole owner of the automobile * * *".

Under "Insuring Agreements" the policy, among other things, provides:

    "2. Coverage B — Property Damage Liability — MFA
  Mutual will pay for the insured all damages which the
  insured shall become legally obligated to pay because
  of injury to or destruction of property, including
  the loss of use thereof, caused by accident and
  arising out of the ownership, maintenance, or use,
  including the loading and unloading of the owned
  automobile, a substitute automobile or a non-owned
  automobile.
    "3. Defense and Settlement of Claims and Suits —
  With respect to such insurance as is afforded under
  Coverages A and B, MFA Mutual will defend any claim
  or suit for such damages against the insured, even if
  groundless, false, or fraudulent, but MFA Mutual may
  settle any claim, or suit as it deems expedient.
    "6. Definition of Insured — With
  respect to the insurance afforded under Coverages A
  and B, the unqualified word `insured' includes the
  named insured, and if an individual, his spouse, and:
    a. With respect to the owned automobile or a
  substitute automobile, any person or organization
  using it or legally responsible for its use, provided
  the actual use of the automobile is by the named
  insured or spouse, or with permission of
  either; * * *
    "9. Financial Responsibility Law — Coverages A
  and B shall comply with the provisions of any
  applicable motor vehicle financial responsibility law
  to the extent of the coverage and limits of liability
  required by such law, but not in excess of the policy
  limits of liability, when this policy is certified as
  proof of financial responsibility for the future
  under the provisions of any such law. * * *"

Under "Conditions" the policy provides:

    "1. Effect of Policy Acceptance: By acceptance of
  this policy, the named insured agrees that the
  statements in the Declarations are his agreements and
  representations, and that this policy embodies all
  agreements, relating to this insurance, existing
  between himself and MFA Mutual or any of its agents.
    "2. Insured's Duty When Loss Occurs — Notices to
  MFA Mutual — In the event of accident, occurrence or
  loss, written notice, containing all particulars
  shall be given by or for the insured to MFA Mutual as
  soon as practicable, * * *.
    "If claim is made or suit is brought against the
  insured, he shall immediately forward to MFA Mutual
  every demand, notice or summons received by him or
  his representative. * * *
    "4. Assistance and Cooperation of the Insured: With
  respect to Coverages A, B, E, F, G and H, the the
  insured shall cooperate with MFA Mutual, disclosing
  all pertinent facts known or available to him, and
  upon MFA Mutual's request, shall attend hearings and
  trials and shall assist in effecting settlements,
  securing and giving evidence, obtaining the
  attendance of witnesses and in the conduct of
  suits. * *
    "6. Action Against MFA Mutual. No action shall lie
  against MFA Mutual, under any Coverage, until after
  full compliance with all the terms of this
  policy, * * *.

William Ross Mullin used the car until November 1956, when he went into the Army. At that time he left the car at the home of his father, Howard R. Mullin, near Lincoln, Arkansas. William Ross Mullin was stationed in Virginia, and apparently he received a Christmas leave because he returned to his father's home on December 24, 1956. During the time he was gone the car was parked under a tree at his father's home, and was not used by anyone.

It appears that William Ross Mullin was attempting to sell the automobile to Grant LeRoy Brindle, and that William Ross Mullin had authority of his father, Howard R. Mullin, to do so.

On the afternoon of December 28, 1956, William Ross Mullin left his father's home in the automobile, taking with him his sister. It is not clear from the evidence whether Grant LeRoy Brindle was at the Mullin home and left with William Ross Mullin and his sister, or whether he joined them later. In any event, neither Howard R. Mullin nor his wife gave Grant LeRoy Brindle express permission to drive the automobile.

4.

All the evidence with regard to how William Ross Mullin met his death is hearsay evidence. It does appear from the record, however, that at some later time in the evening of December 28 William Ross Mullin's sister was returned to her home, and that on the early morning of December 29, 1956, the automobile in question was involved in an accident on Highway 51 in Washington County, Arkansas, near the town of Cincinnati, Arkansas. It also appears from the record that the automobile was being driven by Grant LeRoy Brindle, and that an automobile driven by A.M. Prescott was also involved in the mishap. William Ross Mullin died as a result of the injuries he sustained in the accident.

Howard R. Mullin learned of the death of his son on the morning of December 29, and on that day or the next day contacted E.J. Ball, an attorney associated in the practice of law with Rex W. Perkins in Fayetteville, Arkansas. Ball began an investigation of the accident, and among other things took a statement from Grant LeRoy Brindle on the evening of December 30, 1956.

On December 31, 1956, Ball wrote the plaintiff's claims department as follows:

    "Please be advised that the 1949 Plymouth
  Automobile covered by the captioned Insurance Policy
  was involved in an automobile collision on the night
  of December 28, 1956 near Cincinnati, Arkansas. A.M.
  Prescott was the driver of the other automobile and
  he has been charged with manslaughter.
    "This office represents Mr. Howard R. Mullin and
  the estate of the decedent."

No other notice of the accident was given to plaintiff by Howard R. Mullin or Grant LeRoy Brindle.

On January 15, 1957, Robert E. Pettit, plaintiff's Claims Manager, wrote Ball acknowledging receipt of his letter of December 31, 1956, and stating "Our representative, Marvin Christopher, at Springdale, Arkansas, will contact you in the near future in regard to this matter".

Howard R. Mullin, through his attorneys, Perkins and Ball, asserted a claim against Prescott, the driver of the other automobile involved in the accident, and against Prescott's insurance carrier, Southern Farm Bureau Casualty Insurance Company. Negotiations were conducted relating to this claim, and on January 30, 1957, Prescott's insurance carrier, through its attorney, Charles R. Garner, offered to settle the claim of Mullin against Prescott for $3,000, provided Howard R. Mullin's attorneys would obtain a release from Grant LeRoy Brindle in favor of Prescott for the sum of $50. Prescott's insurance carrier wanted to dispose of the whole matter at one time, and would not settle with Mullin unless it could also get a release from Brindle. Howard R. Mullin, acting through his attorneys, agreed to accept this offer of settlement.

On February 20, 1957, the Probate Court of Washington County, Arkansas, entered an order authorizing settlement of the claim of Howard R. Mullin, Administrator, against A.M. Prescott. Among other things the order authorizing the settlement states: "That A.M. Prescott caused the wrongful death of the said William Ross Mullin".

On February 21, 1957, Howard R. Mullin, Administrator, executed a release in favor of Prescott for the consideration of $3,000. The release was drawn in accordance with Act 315 of the Acts of Arkansas for 1941 in order to preserve the right of Howard R. Mullin to assert a claim against Grant LeRoy Brindle.

At 3:02 p.m. on February 21, 1957, Howard R. Mullin, Administrator of the Estate of William Ross Mullin, deceased, filed an action against Grant LeRoy Brindle, a minor, in the Circuit Court of Washington County, Arkansas.

It is alleged in the complaint, inter alia:

    "That on December 29th, 1956, the deceased was a
  guest in a vehicle driven by Grant LeRoy Brindle, a
  minor, and that approximately one mile North of
  Cincinnati, Arkansas, on Highway 51, in Washington
  County, Arkansas, the defendant so carelessly,
  negligently and unlawfully at the time operated the
  car he was driving as to cause the injuries, damages
  and death to the deceased, and that said deceased was
  injured without fault on his part."

Howard R. Mullin prayed for judgment in the sum of $15,000 against the said defendant, Grant LeRoy Brindle. On the same day, February 21, 1957, summons was served on Grant LeRoy Brindle in the law offices of Perkins and Ball, attorneys for Howard R. Mullin. On March 22, 1957, Grant LeRoy Brindle and his parents issued a release to A.M. Prescott for a consideration of $50. The release refers to the accident which occurred on December 29, 1956, and among other things provides:

    "Therefore, for the sole consideration of Fifty and
  no/100 Dollars ($50.00) in hand paid to First Parties
  (Grant LeRoy Brindle and his parents) by the Second
  Party (A.M. Prescott), receipt of which is
  acknowledged, First Parties do hereby release, acquit
  and forever discharge the said Second Party, his, its
  or their agents and employees and all other persons,
  firms or corporations who are or might be liable for
  such injuries from any and all actions, causes of
  actions, claims, and demands, damages, costs, loss of
  services, expenses and compensation on account of or
  in any way growing out of any and all known and
  unknown personal injuries and property damage
  resulting or to result to said minor from said
  accident including any other claims that First
  Parties or any of them may have which arose at the
  time or prior to such accident and to this end they
  do bind themselves, their heirs, executors,
  administrators, successors and assigns forever."

A draft dated April 4, 1957, in the sum of $50 was issued by Prescott's insurance carrier, Southern Farm Bureau Casualty Insurance Company, to Grant LeRoy Brindle and his parents. The draft referred to the accident, and on the face of the draft there appeared the following: "In full payment for any and all claims on the loss referred to above". This draft was cashed by Grant LeRoy Brindle, and he received the sum of $50.

5.

In the meantime, no guardian ad litem had been appointed for Grant LeRoy Brindle in the case pending against him in the Washington County Circuit Court, and none had been appointed at the time of the trial August 28, 1957, of the instant case.

Some discussion of the matter was had between plaintiff's attorney, Crouch, and Mullin's attorney, Perkins, and on April 29, 1957, plaintiff filed the instant suit for a declaratory judgment asking the Court to construe the provisions of the policy issued by plaintiff to Howard R. Mullin and to determine the respective rights and liabilities of the parties.

6.

At the time of the accident Grant LeRoy Brindle was 17 years of age. He had attended school and could read and write, but the evidence did not disclose the extent of his education.

As heretofore stated, the day after the accident, December 30, 1956, he gave a statement to Howard R. Mullin's attorney concerning the accident. On January 1, 1957, he gave a statement to an adjuster representing the insurance carrier of Prescott. On January 2, he gave a statement to the Deputy Prosecuting Attorney of Washington County, Arkansas.

Later, at the request of Mullin's attorneys, and in accordance with the requirement of Prescott's insurance carrier, Brindle executed a release to Prescott in order to facilitate the settlement of the claim of Howard R. Mullin against Prescott.

Grant LeRoy Brindle gave plaintiff no notice of the accident or of the suit filed against him by Howard R. Mullin. Brindle did not confer with plaintiff or its representative at any time, but it appears that they made no extensive effort to contact him.

Grant LeRoy Brindle left the State of Arkansas on June 2, 1957, and was not available for service of subpoena at the time of ...


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