*1 211 COMPANY MUTUAL INSURANCE MEMBERS Thomas BLISSETT S.W. 2d 5-6186 delivered April Opinion Amsler, Thurman, if Barber, McCaskill Henry, appellant. Prewett,
Brown, if for appellee. Compton Members by is an appeal This Fred Jones, Justice. J. Mutual, hereinafter called Company, Mutual Insurance verdict on a jury rendered court judgment from a circuit Blissett in a suit brought is Blissett in favor of Thon him rendered of a judgment recover the excess Mrs. injuries Mr. and instituted personal a suit Frisby. *2 Frisby background and Mrs. these: Mr. are facts injuries personal against for
brought Blissett Mr. suit a and obtained collision growing automobile of an out against in the amount jury Blissett judgment verdict aon appeal to judgment on was affirmed $21,418 and the of Frisby, 235, 458 S.W. 2d Blissett court. this with Mutual insurance Blissett carried 735. under person. Under each $10,000 limit for policy with a any agreed suit policy defend to Mutual of the terms the property bodily injury alleging or against the insured seeking of damages payable the terms under damage and provided as things Among the policy. other the follows: investigation may and company such make “. . . the expedient. any it deems or suit as of
settlement * * * company cooperate and with shall
The insured upon making'settle- company’s request, in assist enforcing any in ments, of suits and the conduct any person indemnity against right of contribution or may be- organization to the insured be liable who damage bodily injury, property or loss of cause respect under afforded which insurance hearings and policy; shall attend the insured and securing giving and evidence and assist trials and obtaining The insured of the attendance witnesses. voluntarily cost, make except not, at his own shall any any obligation or incur payment, assume and medical expense such immediate than for other imperative at the surgical as shall be to others relief time of accident.” present Mutual filed suit Blissett Frisbys;
alleging was sued for that he paid that lawsuit for defense Mutual furnished but that prior pendency during and demands of the lawsuit Frisbys frequent thereof, the trial limits than the for sums less their claims settlement of highest offer policy, Mutual’s but that Mutual’s under meager as so $4,000 which was sum was the part Mu- on faith bad constitute to tual. $21,- damages amount of prayed in the Mr. Blissett attorney’s fee penalty, reasonable together with 12% paid. until December from 6%interest guilty of it was it denied answer Mutual’s negotiations for a settle- in its negligence ment with faith or bad judgment Frisbys. trial A resulted owed $11,418 still amount Blissett in for Mr. accumulat- together interest Frisby judgment with all registry paid into the thereon, amounts said ed in favor the satisfaction the court the *3 of policy limits Frisbys against Blissett. The by paid already Mutual. been had its appeal contends that this court Mutual to On granted been should have verdict for directed motion by ordering in erred trial court and that the trial court the judgment Frisby-Blissett payment on the interest of the entry bar. accruing prior in the case at of to the that argument support its in of contention the In favor, directing Mu- in its a verdict not erred in the court points stated as follows: issues to two tual narrows the that State that the law “First we submit company for a be held liable is to the if insurance settle, negligent have been there must to failure company the by settle the insured that the demand case policy the limits. within submitted Secondly, no . . there was evidence . was defendant that the be concluded it could which failing guilty in to settle.” be a demand must support that its contention liability to by for failure attaches before the insured Parker, appellant v. settle, Farm Bureau cites Southern the though argues even that 341 S.W. 2d opinion necessity in the a demand not discussed the was be the law. case, declare to such
in The that should now we Mu- Farm State decided 1960. In Parker case was (1965), 346 F. Jackson, Ins. Co. v. tual Automobile the Appeals Eighth stated: Court Circuit Although to settle: matter demand the of a “As to Insur- Farm Bureau court in Arkansas Southern supra, approved Company Parker, a set of ance requiring including, alia, de- structions, one inter specific insured, mand for specifically ruled point or not discussed was cited, and has been case. No case in that the Court Supreme Court none, the Arkansas find in which we has question.” affirmatively the above decided Appeals affirmed the Eighth Court of Circuit compro- holding demand to that a District Court pointed necessary it and was mise was not out terms of under the decision that in the Jackson power given company policy the to determine contract compromise should an offer of whether coverage rejected limits. accepted within lay a strict down deem it advisable doWe require the insured case that would law in this rule of company the claim upon make demands regardless limits within be settled already pointed agreed provisions As contract. right bar, out, Mutual reserved at *4 any investigation and settlement make such pro- expedient contract deemed suit as it or except own not, at insured “shall vided that any any payment, assume voluntarily cost, make any expense than such obligation other incur or surgical as others relief medical or immediate As imperative time of the accident.” at shall provides policy fact, contract a matter of company cooperate with the “the insured shall making company’s request, set- upon assist sugges- (Emphasis added). There no is tlement. . .” Blissett, insured, at bar in the case tion co-operate with Mutual. failed to question there of whether to the We now come part evidence was sufficient we con- to the take of Mutual
215 Supply Wholesale there was. elude that Hoffman dealing Terry, 658, 399, Ark. 399 S.W. 2d Co. v. 240 verdict, we said: directed with a has said on numerous occasions "... this court determining that, trial of the the correctness directing a verdict for either court’s action party, take that view of the evidence we must against party which is most whom any favorable to the directed, and, is there the verdict is .if tending issue evidence to establish substantial against party is whom the verdict of the in favor directed, case from for the court to take the it is error Wrape Henry jury. Com entine Barr See 328, 206, cited pany, and cases S.W. Ark. 179 McEachin, Also, in Smith v. therein. said: S.W. we 2d testing any or not there is substantial ‘. ... In whether case, given rea- in a the evidence and all evidence deducible therefrom should be sonable inferences party light viewed in the most to the favorable directed, and, the verdict is if there whom evidence, in the evidence conflict or where the dispute is in is not in but such a state that fair-minded might therefrom, different men draw conclusions it is error to direct verdict.’” Cartmell, aslo Home Mut. Fire Ins. Co. v. See 45, 430 S.W. 849. the trial therefore, at bar in the case clear, It is refusing in favor verdict to direct err in did not
court upon fair-minded which was evidence if there Mutual men It is well therefrom. might conclusions different draw is liable insuror than an in this state established insured’s any judgment in excess insured for limits if the insuror’s due the claim to settle failure Busby, negligence. Co. v. Ins. Tri-State fraud, bad faith *5 893. S.W. 2d light in the the evidence examine nowWe surrounding out the collision rules. The facts above Blissett in original out arose are set lawsuit which the Frisby, evi- in There was the conflict supra. usual Frisby contending gradually dence; Mrs. that she had process driving in slowed her automobile and was it to the shoulder of the suddenly highway she when by the Blissett automobile. Mr. Blis- struck from the rear Frisby having difficulty that he Mrs. sett testified observed in her and he contended with her small child the seat with highway suddenly stopped her automobile that she striking her him he could not avoid auto- ahead of mobile. surgery Frisby after sev- thoracic Mrs. underwent injuries she treatment as a result of eral months medical sufficiency evi- in the and the sustained collision judgment for her dence sustain the amount of the juries questioned. the evidence is not We now consider alleged negligence as it to Mutual’s in its failure relates Frisby against Blissett within the to settle the policy limits. attorney Shackleford, M. in El Jr., Dor- John Frisby represented
ado, Mr. and Mrs. in their suit length Mr. Blissett and he testified at as to the Frisby efforts claim. The settle substance testimony prior and sub- was to the effect that both Frisbys sequent employment, offered to settle to his $5,000 $3,000. He said that after and Mutual offered joined litigation attorney the issues were with Richard Mays representing Blissett, first H. and Mr. Mutual trial of the resulted in a mistrial because of the being agree on a He said that it was unable to verdict. Mrs. established Frisby evidence at the trial of the case that special damages had sustained medical and related disability permanent partial $4,408.39and a 10%to 20% injuries. offered, He still because of the said he Frisbys, $8,500 to- behalf of gether to settle their claim for property damage costs, $200 finally $1,500 Mutual did offer an additional on the medi- making cal, final a total of as its best and offer. judgment that after was en- testified Mr. Shackleford tered recognition case, this of Mr. limited Blissett’s substantially judgment assets, he offered to settle the less after the than the amount of it but to no avail. He said court, Mutual was affirmed *6 paid coverage also and $10,000 limits their paid the together damage with accumulated property $350 terest. passenger awas that she testified Blissett Mrs. Evon deposition gave automobile; her that she
in her husband’s not have testify she did She said either trial. at but did not any representative any Mutual before contract Mays attorney suit after talk with suit was filed but did the exact not remember that she does said was filed. She amount asking but it Frisbys in setdement were rather small time that it was seemed amount. She said that and her husband band her at the to prior when she first trial to Mays’ office, hus- her in Mr. were Frisby why did not settle inquired as to Mutual being “They’re just Mays replied: stubborn.” claim, Mr. that testimony as the same was about Mr. Blissett’s occurred, the accident He said that when Mrs. Blissett. of he office referred office; the Dallas that reported Dallas it to Mutual’s adjuster who in Texarkana him to an Service Claims him the Ed Morneau’s turn referred Hope, by to subsequently contacted He said he was Arkansas. not consider he did adjuster He said from that firm. dis- fault, any way no one but that the collision it he discussed with him from time matter cussed the with immediately following un- adjuster collision with summons. year when he was served later til about trials, preparation during one He said that Frisbys offered Mays had whether Mr. he asked he they that then had. He said that advised and was settle why not settled had inquired the matter been toas they were Mays replied: “Well, Thev he did wouldn’t. Mr. not He said settle.” being wouldn’t stubborn He said any or not. after that was offer there whether know he because the matter inquire into further he didn’t and didn’t procedure that nature nothing about knew company settle or should his insurance know whether Mays entirely up matter settle; he left the handle. manager Winchester, assistant claims
Mr. Vernon T. Mutual, sure that he reviewed that he is testified firm had the Morneau finished in this case after file investigation. Mr. Blis- did not feel that He that he said attorney Mays he selected said that He at fault. sett copy complaint defend the lawsuit and sent him the investigation
and the file. He said that he received a letter Mays advising depositions from Mr. had been taken *7 recommending figure and $5,500 of not in excess as a top offer in settlement. He said that he on acts the advice attorney, upon receipt Mays’ of Mutual’s and of Mr. let- $3,100 ter he raised the $6,100 reserveson the claim from to personal injuries on the in addition to the for reserve subrogation property damage. medical and Mr. Winches- testified, “I do not ter reserve excess of what I think a possibly case is worth.” He said that he after learned subroga- being represented Farm Bureau was also on its tion claim Shackleford, Mr. he extended settlement $4,500 Mays authorization to Mr. in the total amount of Mays and that Mr. above the never aid make other recommendations figure. $5,500 He said that after the totaling $21,000 over was rendered at the second trial and appeal court, before to this plus property willing pay Mutual was to the the $10,000 whole damage limit wipe if it could
thing “get out and Mr. Blissett off the hook.” On cross-examination Mr. Winchester testified that Mays he never did tell Mr. to $5,500 offer as much as the Mays. recommended Mr. He said that after resulting hung jury first prior trial in a and to the sec- trial, ond authority by calling he did not increase the Mr. saying, Mays “Richard, offer so much.” He said that Mays he did possibility ask Mr. to delve into the negotiation. He testified that he had no recall of increas- ing Mays the authorization to Mr. between the two trials. changed He testified that he the reserves on this from bodily $3,100 injuries $6,100 separate for reserve property damage and said he would have authorized payment bodily injuries $6,100 for the because he did not reserve more than the maximum amount he thinks a claim is He worth. said that he could not tell from Mays his files whether Mr. ever knew that Mutual would willing pay $6,100 be in settlement He of the claim. give Mays authority said he never did Mr. to settle the to delve into the Mays $6,100, claim for but did ask Mr.
possibility negotiating the claim after he had authoriz- $4,500 plus ed after demand was made for property damage. He testified that the auth- maximum ority $4,500, files was never did reflected and he authority Mays to Mr. to settle written extend further the case. Mays him that Mutual sent the file to testified advising that he that it was the Blissetts
and advised had been retained represent their interest in the case they they him, should communicate with which and that with the did. He said that he had several conversations Blissetts and discussed they being sued fact that were than going more limits. He said after suggested figure over the matter he not to to Mutual a settlement making sugges- $5,500. exceed He said that in injuries tion he took into consideration the extent of questionable liability, what he considered and that because of what he negligence case of comparative to be
considered part Frisby, on the of Mrs. he felt there was *8 possibility of He tes- a reasonable a defendant’s verdict. inquiring tified he not to that does recall Blissetts as why being the case was settled. He said he was under not impression hoping that the Blissetts were that but that convenience, case could be settled as a matter of he being stating not recall ever to Mutual was does them that got He testified stubborn. that after Mr. Shackleford Frisbys into the case the offer he on made behalf of the was expenses $8,500, which included the medical but that they damage property wanted in to addition $250 $550 including depositions. and court costs He costs of said Frisbys willing that he felt if that were to come off plus willing offer, go $8,500 he would be to back to willing Mutual and authority if it see would be to increase given it had He him. said he he believed had telephone prior conversation with Mr. Winchester nearing, believes, the first trial and he as trial was $4,500. Mr. Winchester authorized him to make an offer of said, recalls, He as he Mr. Winchester advised him to see accepted and, $4,500 if the offer of would be if it was accepted, maybe they they not could find would out what impression, come down to. He said that he obtained the however, Winchester, from Mr. that if the case could $5,000 $6,000 settled for or that Mr. Winchester would authorizing neighbor- have considered a settlement in that opinion hood. He said that he evaluated the it was worth and in his value, $5,500 $6,000 in settlement but that give go to Mr. Winchester never did him authoritv did tell him Mr. Winchester $6,000. He said that $4,500 if that telephone to offer conversation Frisbys offer, him refused, to call a counter and the He said what could be done. would see back and he authority given excess he was never authority request above he never made original except amount, evaluation. January 15, Win- Mays’ to Mr. letter of In Mr. in the depositions taken reported were chester, he Frisby most made a January Mrs. and that case impressive that she He advised own behalf. in her witness had who woman and articulate an attractive was exaggerated played had not time injuries the same but at her down, stated: and he them bearing as impressed her quite “Frankly, I was going us hurt she I am afraid a witness issue us on considerably finds if the negligence. adequate Blissett, made insured, and Mrs. Your witnesses unfortunately they to have although seem However, ways. different the accident in seen inconsistencies testimony not substantial are in their particularly material.” *9 pointed Mays out in his then letter the conflict and also testimony occurred how the accident toas the negligence comparative Arkan- as to the law on advised sas, and stated: then comparison re- we this and
“However, makes the verdict, general damages, and on duces the jury thought the com- about not what the do parative know they plaintiff negligence or whether of the plain- affixing the into consideration took this judgment.” tiff’s court’s trial explained the Winchester to Mr.
He then reluctance the interrogatories toas to submit parties only degrees negligence two there where are He then stated: involved. be my opinion, would case is one which
“In worthy so a reason if it be done for to settle can settlement plaintiff figure. has offered The able case for damage plus plus property $8,500.00 the sum of $200.00 expenses (including Court costs ap plaintiffs apparently depositions). have The expense, plus proximately $1,500.00of medical direct caretaking expense, trans $1,500.00 of an additional ** * $8,500.00 doctors, portation expense etc. to figure penses. ex these medical above includes mentioned agreeable my opinion plaintiffs will It my opinion previous reducing offer somewhat and up of- from we should fers somewhat come my understanding that been made. It is which have by your highest previous offer of settlement com- expensive going pany to be an $4,000.00.This is try, parties due to number suit for both involved, physicians of whom are who are most suggest Therefore, physicians. I would local figure top $5,500.00 as our not to exceed offer. transcripts deposi-
As as I have received the soon information, I forward medical shall tions and other you. them on to thoughts having your appreciate on this
I would your opportunity.” earliest matter at case, Summarizing in this the evidence Blissett, the with Mr. Mutual reserved in its contract right him, investigate and settle claims made only under the contract and Mr. Blissett was to assist in authorized requested making do settlements when so attorneys employed fil- were and suit was Before Mutual. $3,000. Frisbys ed, $5,000 Mutual offered asked filed, attorneys employed suit was were After Mutual, Frisbys, through attorney, asked their *10 through attorney, Mutual, through its $4,500. offered its supervisor, carefully selected office Dallas home claims represent attorney it and competent its trial local investigation reported his in detail He made sured. impression both sides and evaluated of witnesses on jury he impression they probably make on a would figure top $5,500. to Mutual recommended authorizing attorney amount, to offer Instead of judgment light experience his or to use his own simply situation, re- increased its and the local serves to what its claims was Mutual supervisor the case considered attorney probably only worth but authorized its $4,500. offer a total amount of authority opinion that the settlement
We are itself with Blissett Mutual reserved to estopped under its contract relying it from on a demand Blissett from limits, policy against him be settled within the the and we are also of the of opinion enough evidence there was part on the of Mutual to take the case to negligent question on of whether Mutual was settling not within limits. the claim refusing to
We hold that the trial court did not err in opinion Mutual, direct a verdict for we are of the but awarding judgment the trial court did err in for accumulat Frisby judgment against ed interest on the substance Blissett. The holding point Farm our on this in Southern Hardin, Bureau Cas. Ins. Co. v. 351 S.W. 2d 153, and Busby, Tri-State supra, Ins. Co. a suit v. is that an insured insurance carrier pol negligent within or lawsuit failure to settle a claim icy separate judgment limits, is a tort action and a there only bears its own from the the its rendi interest date of tion. With this is affirmed. modification Affirmed as modified.
Brown dissent the affirmance. JJ., as to Fogleman, J., Byrd, dissents modification: J., Holt, participating. bring dissenting. I cannot A. Justice, Fogleman, John
myself in this to a concurrence the action the court clearly recognized, since case. This least court has at Indemnity Company Snowden, Home *11 223 company, liability insurance 642,1 that a S.W. 2d 264 which claim of a virtually control of absolute has can insured, a settlement at least when against its limits, a owes payment the by within a made be good and without in faith duty policyholder to act the theory that to the unsound errors in negligence. I subscribe cannot judgment or want liable for insurer should an of the necessary predict of clairvoyance the amount question especially verdict, of jury where the a is close pellant ap- compared. I think must be and to exer- being penalized its either for failure of is hindsight, or the scale measured judgment, good cise only foresee, the result ability intuitive lack of negligence, but, jury’s comparison amount when of the which damages, particularly a it would award as pain, part included awards for suf- must have substantial future, anguish, present fering and and and mental other (such ability damage to earn and the as loss elements consortium) no and for which loss of services husband’s adequate gauge other than the col- an one has discovered lective jurors par- might judgment in a be the of whoever Frisby, 458 S.W. Blissett v. ticular case. See 249 rejection of the the court’s recent And this follows 735. 2d equated negligence. poor judgment can be idea that Company Busby, Insurance 473 Tri-State Infallibility predicting of a case S.W. 893. the result 2d expected. great possibility such as this should not be of imponderable many judgment, intangible error in when so and by illustrated factors are involved well hung first trial in this resulted in a fact that the Mays thought jury by vote which both a Shackleford testimony explaining was 6 to 6. Shackleford’s prayer damages complaint for the he filed predicting uncertainty emphasized a Frisbys verdict. my opinion,
In rule as to these matters correct Appeals was followed the United States Court Reading, Casualty Co. in American the Fourth Circuit (1951). Howard, bears Pa. v. F. That case similarity strong- striking this, is even but the evidence recovery interesting limited in this case to 1It is to recall that court policy limits. by the a demand for settlement was there because er insured, wrongful the action for death was covered reversing policy. case, company dismissing that court insurance *12 said: liability
Lawyers representing users insurers of motor accurately required prophets to be are not foretell who can litigation personal injury the results of arising accidents, out of nor does cases automobile lawyers impose judgment by mistake these a mere beyond limits insurers on these lawyers reasonably, good coverage. If these act refusing proffered negligence in faith and without settlements, fully they, they represent, have and the insurers imposed See, up upon them. lived to the duties Grocery Armory Co., S.C. v. Wholesale Bedford Lynch Express, 330; 150, Pee Dee 10 S.E. 2d 449; Gin Co. v. St. Paul 30 S.E. Farmers S.C. Mercury 2d 415;
Indemnity Co., 747, 191 186 Miss. So. Casualty Co., 10 Insurance Burnham v. Commercial Wash. P. 644. 2d appellant’s upon appellee to show that was The burden of its failure to use in matter was not the result conduct negligence.2 In result of judgment but was good sufficiency legal question of of the that the order evidence to meet may proper this burden be viewed perspective, I must attention to factors which call certain significance, given little I consider of some but which are by majority. attention negotiations were conducted The first ap- acting company behalf of
dependent adjusting $3,000, company at pellant. the claim evaluated That appellant. investigation From report was made of its manager appellant’s formed report, assistant claims this Mays, at- opinion not at fault. Blissett was his Frisby suit, torney employed appellant to defend appellant relied, upon valued never advice and claim, whose $5,500. purposes, Not more than at settlement alleged. The not The first was fraud or bad faith. was no evidence of 2There as an issue. properly eliminated the latter trial court upon only the basis settlement Blissett not demand did attorney for the as Shackleford of the offer suggest request Frisbys, even not he did adamantly any figure. Blissett at this or other be made fault, testified when he not at even maintained that he was greatest was he ever made concession in this case. testimony not have that he could in that his statement been Frisby. tes- than Mrs. Shackleford more at fault Mays’ great Blissett in Blissett’s defense. as to faith tified but, only steps advised, taken of the various rights attorney protect employ right his his own policy limits, him- not to avail but he chose in view of the self of right. Frisby filing negotiations suit All after Mays. At one were conducted between Shackleford and *13 Frisbys Mays time, would con- if the asked Shackleford that told demand and was sider an amount less than their Frisbys to the with- a lesser offer would be communicated out Shackleford’s favorable amount was somewhere recommendation unless near the demand. Shackleford testimony, retrospective indicated, have that he would approximately recommended a settlement for a total of $8,000, but admitted that he never made offer to settle an Mays plus $8,700 for less than the costs. He recalled that thought expressed might reached. that a deny Mays inquired a settle- He would not ment in the that about although range $5,000 $6,000 he could Mays inquiry it. testified that this not recall was request appellant’s Winchester, assistant claims at the company manager, if the and Shackleford indicated that ready get they might this, would offer no than as more well try had the de- the lawsuit. Shackleford testified that he impression Mays’ suggestion $5,000 to finite that of a basis, figure if on a “take-it-or-leave-it” even was appellant it. confirmed would authorize Winchester requested Mays had that dis- fact that he ascertain from was room for cussions with Shackleford whether there negotiations. further Frisby
Mays always opinion was of the that value, and offer was in of a reasonable settlement excess damages than the that total would amount to more not policy limits, if should find no even Frisby. liability for cer- He doubted attributable to Mrs. Frisby’s expenses3 out-of-pocket Mrs. felt that tain disability as as He felt was not substantial claimed. highly questionable was the insured’s there possibility a defendant’s ver- was a reasonable dict. very high- giving evidence, it the
On the basis the possible, probative to see I been unable have est how there was value anything than a mistake more attorney. part company and its insurance on the This testimony appellee me to a bit of brings which testimony emphasize. majority opinion is the That question Mays responded to their of the Blissetts that why by company did not settle the insurance Although saying “they being were stubborn.” may thought question as was there be some to who he being stubborn, from testi- the inference to be drawn mony appellee is to the this to be sub- most favorable to that he referred company. insurance stantial evidence even objection. I do not consider
though it without was admitted it is be- I think that not substantial evidence probative cause it has no value. attorney place, this statement first extrajudicial binding or An statement client. on the attorney (made in the absence
admission consent) knowledge which without his client and not *14 proof dispensing purpose given with binding admitted, unless the client is not on the fact it, authority from attorney special aside to make has pro pending employment in connection mere Hogenson 122; 121, litigation. spective § Am. 2d 7 Jur. 209, P. 311 Co., 461 Wash. 2d Armament 77 2d v. Service (1969). Homes, Geesey Pennsylvania also, Albee See v. (1968). Such 215, Super. A. Inc., 2d 176 Pa. 235 211 Mfg. Falls Naomi Hicks v. evidence. are not admissions Furthermore, (1905). such 319, Co., 50 S.E. 138 N.C. 703 binding not a statement if will not a statement it. Silling, opinion. Cato v. expression of a mere fact but 981, denied, 694, 731, 348 U.S. cert. S.E. W. Va. 73 137 2d 3See v. Blissett Frisby, [249] Ark. 235, 458 S.W. 2d 735.
227 (1952), 572, denied, L. Ed. reh. 349 U.S. S. Ct. 99 764 75 (1952); Edins, 924, 659, S. Ed. State Ct. 99 L. v. 25 75 1256 (1920); 680, 545, Nao N. M. 1331 Hicks P. 8 A.L.R. v. 187 Mfg. supra. Co., mi Falls have held that the We mere detailing statement of a witness’ conclusions without his facts which would furnish a logical basis for his belief competent judgment. is not evidence to sustain a 1153, Couch v. Ark. S.W. Rockafellow, 205 172 2d proba The statement of a mere has conclusion no 920. (8th Nelson, tive force. United States v. F. 515 Cir. 102 2d 1939), denied, 81, 550, cert. 308 U.S. 60 S. Ct. 84 L. Ed. (1939). 462
Testimony probative of no value does not constitute substantial evidence. Substantial evidence means that probative legal which has force on the issues and is significance. Tangora Matanky, App. v. 468, Cal. 231 2d (1964). Rptr. evidentiary support Cal. 348 42 requires Substantial having probative Con
evidence a rational force. R., 197, 206, solidated Edison Co. v. L. 305 U. S. 59 S. Ct. (1938). determining legal sufficiency 83 L. Ed. of the 126 support (or justify evidence to verdict denial verdict) question appellate of a directed for the court testimony, given strongest probative is whether the force, is of a substantial St. Fire & Marine character. Paul Martin, Ins. Co. XVIII, 606; v. Ark. 204 165 S.W. 2d Bottling Spurlin, Coca-Cola 126, Co. v. 199 Ark. 132 Telegraph 828; Byrd, S.W: Western 2d Union Co. v. 197 152, 569; 18, Jones, S.W. Hall v. 129 Ark. 399; McLeod, S.W. Cleveland-McLeod Lumber Co. v. course, 131S.W. Of 878. it follows that evidence probative without value cannot be considered in deter mining legal sufficiency Fleming of the evidence. See Twiggs, (1956). N.C. 94 S.E. I submit 2d 821 appellant’s there was substantial no evidence of appellant and that a verdict for should have been directed.
Perhaps extraneous, such a consideration is I but impact shudder to think of the have this decision will required by *15 the cost of the minimum insurance the motor- safety responsibility 75-1401, vehicle et. act. Ark. Stat. Ann. § seq. recovery (Repl. 1957). liability When for a may imposed in these be amounts excess of limits opinion passing judgment upon as in a difference of probable to the in outcome and award an automobile perfect hindsight case, collision and the vision of be can may policy utilized, the minimum limits well come to meaning have little in in case which could a claim trial, been have for less It in- before was not. settled but gives pause potential also crease be me when I consider the likely
in number of the uninsured motorists driving highways pro- on our because the cost of course, tection within the minimum limits. Of this would would coverage premiums mean inevitably uninsured motorist Reverting opinion American increase. to the Casualty supra, Howard, Co. v. I find lan- this further guage appro- Appeals of the Fourth Circuit Court of priate, viz: length duty the to the at some have adverted We insurer under safeguard policy interests here to the the though, remembered, It should
of the insured. policies premium with the on varies such the policy. surer’s maximum limit of under fully up Accordingly, lives when the insurer compel right duty, insured in the there is no limit of its maximum insurer to offer the amount settlement of a order to effect amicable against protect against insured and to insured policy possible judgment limit. In- excess readily protection sured can secure all needed high purchasing, paying for, a liability on the insurer. limit of the case. I reverse and dismiss would joins I to state that Mr. Brown am authorized Justice in this dissent. dissenting part. Conley I dissent Justice, Byrd, disallowing majority opinion portion to that Frisby judgment interest accumulated Blissett. provides Constitution, Article 13 of Arkansas §2 remedy “Every person in the that, a certain entitled to *16 per- may wrongs in receive injuries he or all laws property character, son, . . .” or 1962), provides: (Repl. § Arkansas Statutes 29-124 interest at be to receive allowed shall “Creditors the rate any judgment per per (6) cent annum on of six up magistrate to enter any or authorized court before day signing judgment until the of same from the made;. . .” or satisfaction the effectsare sold requires 1957), (Repl. § 68-606 Statutes Arkansas receipt payment any judgment partial upon the of payment in- first be credited to amount thereof shall principal. any if the balance terest by damages speaking the suffered the insured negligently fails to settle within the when insurer entered, policy limits excess verdict is the annota- and an page (§ Damages) at in 40 A.L.R. states: tor great majority involving charge a “The that of the cases rejected wrongfully
a insurer has an by injured party compromise a offer against following where, the insured have involved the situation by refusal the insured to contribute compromise figure policy limits within the toward offer, in insured an ad- the action judgment results in of the insurance cover- verse excess age. appears in no such a There to be doubt bad situation an insurer whose faith or particular (as required jurisdiction) is establish- may ed, be held liable to the insured for the amount required pay which the latter satisfaction judgment, in so exceeds far as amount which the insured have had to contribution would accepted.” if make had offer been foregoing, injury I suf- From the conclude that the fered because that amount of insurer’s conduct is entered limits. This excess amount, Ann. § however virtue of Stat. 29-124 1962), supra, (Repl. 68-606, § Ann. Stat. accumulating at rate of six thereon interest eludes then, per percent against age If action the insured annum. negligent settle, the dam- failure the insurer for pro- judgment, injury where have we is the excess remedy pursuant *17 to Art. 13 the Constitution § a vided 2 injury he if we hold that is the insured received for the judgment interest on the to the not entitled accumulated against him? performed duty appellant within its and settled
If had judgment would be no excess the limits there being Thus, I take it as which interest could accumulate. logically accumulating the interest on established against proximate judgment Blissett is the direct and wrongful words cause insurer’s conduct. In other of the accumulating nothing is than interest more nor less permanent injury continuing that is in character. Damages pointed 19, § In such Am. it is out that 2d 22 Jur may damages be recovered date . . if to the of trial “. necessary they injury result are natural and complained of and new cause do not themselves constitute words, of maintained in other if no other can be action—or action for them.” illogic majority view can be shown private correspondence
assuming that the insurer liability judgment $11,- conceded its for the excess of some through dilatory 000 tactics and a crowded trial court but delay issue for docket found it could a trial on the years. deposit two In that the insurer could situation savings $1,- $11,000 draw an account and income Blissett is at interest while the 320 increasing 6% ($11,000 plus $1,320) $12,320. I cannot anything disgusting think more than that makes law just profitable delay payment it for of his one delay obligations. condemning a similar in Consolo v. (1966), Comm’n, Maritime Federal 383 U.S. 607 Jus- tice White stated: although pending Further, “. . . suit Flota’s was years, for about two of the or that much record indicates delay request in this involved at approval rate, of Flota. At it never been has
231
litigant
the
that time
that a
is
law
absolved from
during
litigation
pending.
which his
. . .
During
postpone
Flota
this time
was able to
predictable
discriminatory
of its
demise
contract
injury.”
and Consolo continued to suffer
The interest issue has been discussed in two cases
Casualty
court,
before this
Southern Farm
In
Bureau
Hardin,
1011,
surance Co. v.
351
S.W.
2d
(1961),
Busby,
Company
and Tri State Insurance
(1971).
they
authority
If
473 S.W.
are
proposition
they
court,
now before the
should be
remedy
wrong
overruled as a denial of a
for a
under
supra.
Art.
§2
Actually
recovery
the matter of the
of interest has
generally
sistent)
summary (and
had a rather
sometimes incon-
*18
many
treatment
instance,
in our
decisions. See for
Kelly
(1879),
Altemus,
v.
replevin, proof special damage, in the of absence of legal property, is interest on the value of the in ad- property to dition regard itself or . value, its value. . . This with property except which has no useable consumption. regard property for having With by way a useable or hire, value of bailment for like horses tools, the true measure is the value of the use dur- ing the detention. ...” Bradley In Hamilton, Lumber Co. v. 127, Ark. 117 173 (1915),
S.W. 848 there was a claim for conversion of holding timber. In that the claimant was entitled to in- terest on the value it was said: Lynch, supra,
“In Nunn v.
ap
the court cited with
proval
Laycock
the discussion in the case of
Park
v.
er,
232 entitled commenced, is to interest claimant from súch demand.
the time of capable plaintiff in this case was “The presenta- by the defendant after its ascertainment reasonably by to the certain market reference tion by defendant. and removed value of timber cut Therefore, plaintiff interest, was entitled to prejudicial committed no error in the defendant was by allowance made court.” City However, Co. Burkhart Kansas Fibre Box F. v. (1931), Mfg. appellant Co., sold the Ark. had 184 704 appellee’s land it cut and removed from timber had replevin filing court, This af- a cross bond in action. generous finding upholding ter a rather market value hauling without a deduction rail cost siding, summarily appeal rather denied cross prior on the basis that no had terest demand been to trial.
In a number of tort cases interest
been allowed
has
jury.
Lynch,
either
the court or the
In Nunn
89
v.
(1908),
41,
Ark.
in an
flood water was
(1854);
County,
State,
505
Hooten
Use
Cross
119
v.
Meyers,
(1915);Meyers
v.
S.W. 310
Butler,
Humphreys
(1946),
S.W.
*19
(1888),
(1905)1. issue In the last mentioned case the was sufficiency $20,000 In of the evidence sustain verdict. doing so stated: court requires con present instruction
1A.M.I. value § damages. respect to sider interest with future
233 rate interest at the plaintiff entitled to “The damages per per amount on the cent annum 6 from the date of death, the cause when of Tomlinson’s Computing recovery. arose, to date of action damages at on an estimate that rate interest at July 8, 1894, Tomlinson’s date of $13,190 from judgment, February 14, 1903, up death, the date principal interest.” total make a would theory summation, used in I submit that tort Busby, supra, not stand the test Tri State Ins. Co. v. does Busby recog- prior case also fails to of our nize that constitutes Since interest on decisions. liquidation in issue is a matter continuing aggrieved injury to the insured. accumulating way I can think no in which the judgment against the excess Blissett can any way injury directly and considered in other than an proximately Com- caused Members Mutual Insurance violating pany, appears 13 it to me that we are Art. §2 supra, deny Constitution, Blissett of remedy when we wrong for the he has received. jurisdictions ordinarily recovery of
Other allow Casualty Co. Southern Farm interest. See Bureau Insurance Augustin v. 8); (1963 v. Mitchell, C.A.A. F. 485 2d Corp., General Accident Fire and F. Assurance Life 1960); (7th Mutual and Lee v. Nationwide C.A.A. 1961). Company, (4th Insurance F. C.A.A. 2d 295 respectfully stated, For the reasons I to the dissent disallowance of the accumulated interest.