*1 AMI 601 as follows: give
A violation Ann. 75-624 of Ark. Stat. although is evidence of to be necessarily negligence, with all considered of the other facts and by you along circumstances case. as to Bush v. reversed and that judgment Selby remanded a new trial. as to Bush judgment
Missouri and the Pacific as to Missouri Helton Pacific and also are affirmed. Selby
Affirmed in reversed in part; part. MIDWEST MUTUAL INSURANCE COMPANY
v. ARKANSAS
COMPANY,
NATIONAL
and Robert E.
Corporation,
LYDDON
76-38
Opinion July *2 & for appellant. Lindsey Jennings, Wright, Laser, Boswell,P.A., & Sharp, Young appellees. Haley, is an This Midwest appeal by Fred Jones, J. Justice. Mutual Insurance from an adverse Company summary judg- ment in a suit it filed the Arkansas National appellees $6,850, Inc. and Robert E. in- Lyddon Company, plus and terest costs. no
We can do better facts than background stating the statement made its brief. reiterate by was an Arkansas National appellee, Company, indepen- Arkansas, dent in Hot insurance and agency Springs, E. Robert was one of Lyddon appellee agents. agency insurance an risk for Red acquired assigned liability policy Cab of Hot Farm Bureau Fop Company Springs through Mutual certain taxicabs owned Insurance Company covering 7, 1970, On request by August pursuant taxicab to be Arkansas National a certain caused Top, and while deleted from repairs coverage undergoing There was a another taxicab substituted in its standing place. between Arkansas National and agreement would be effective substitution of taxicabs under the coverage after as of the was made. On day request August taxicab had been Red Top requested original repaired, Arkansas National’s to delete replace- agent, Lyddon, taxicab under reinstate the original ment vehicle cause the however, original neglected Lyddon, coverage; 20, 1970, it was and, on to be reinstated taxicab driven awith motorcycle in Hot in a collision Springs volved Lee Lowe. Archie owned Bratton and Robert A. instituted suit Lowe 24, 1971, Bratton and On May and property damage. injuries it with a Farm Bureau demand on provide made be entered that might defense and any pay trial, Bratton reached Before the case Farm Bureau declined. made claim Bratton then nonsuit. and Lowe took voluntary motorist under the uninsured Midwest the appellant issued of insurance of a policy provisions *3 settled Bratton’s The the motorcycle. appellant covering in- $5,250. and Lowe Bratton again claim the by payment and for injuries stituted suit Red Top against claimed to the and subrogation damage, appellant property the extent $5,250 Bratton. Red in settlement to Top paid National seekJ filed a third party against complaint it; National filed a mo- over against ing judgment was the motion the and tion to strike third complaint party 17, third 1973. The trial court on party granted by April “third defendant that negligently party complaint alleged and its obtain the insurance as failed to agreement, per this action which has forced defendant to defend negligence carrier”; and, should have been done its insurance by for third defendant over “judgment against party Top prayed at- its costs and obtained any judgment by plaintiff plus fees in this action.” torney’s defending dismiss, said: the trial court In the motion to granting with: To start Your motion is granted. Farm 1. between
Number The contract specifically Cab such a Third Bureau and Red Party precludes is recovered. until Complaint is not the Number 2. Arkansas National Company Bureau, but the of the of Farm agent agent general sured. 1973, 8, on resulting The case August proceeded for of Bratton and Lowe in a verdict in favor with interest $6,850, for amount that together and judgment Thereafter, for 1973. on entered and costs was September consideration, duly assigned valuable for failure its “chose action” appellees involved on taxicab reinstate insurance coverage suit and, Midwest filed on March collision and its Arkansas National Lyddon agent appellees $6,850. as affirmative The answered alleging, appellees that the defenses, and that the suit was barred not valid. was Motions assignment summary judgments filed The were both sides. stipulated subsequently that that his was Lyddon negligent, appellee that sole resulted in Top, judgment against court the trial validity to be determined by question trial court of law. defenses as a matter affirmative on held cause of action accrued Top’s assigned 11,1970, when failed Arkansas National negligently the insurance three statute reinstate coverage year of limitations as set out in Ark. Stat. Ann. 37-206 (Repl. § 1962), on started that date. trial court running granted comes motion for from which appellees’ summary judgment this appeal.
On to this court the has designated appeal on which it relies reversal: following point *4 The court in not erred motion granting appellant’s and in summary judgment granting summary judgment is because entitled to appellees, appellant as a of law. matter this is this that to have
The stipulated parties appeal the three year of action consequently negligence, It 37-206 is limitations applicable. statute of provided § that from the presented, would further arguments appear, that as assignee, in basic are appellant, agreement defenses, was the same had subject no rights, greater Bur. Cas. Davis Farm to Red So. an would have applied Co., 211, 330 (1960). 2d 276 Consequently, Ins. S.W. this boils down on as to limitations appeal question its insurance agent, when cause of action Red Top’s 356
Midwest, it on contend accrued The accrued. appellees court, 11, and the 1970, the trial as found 24, than it accrued not earlier May that contends appellant 1971, learned and it first when suit was filed Bureau’s Farm no insurance that it had coverage through at this required refusal to defend. It was point its own defense because the cost of appellee’s assume we So are to obtain insurance coverage. failing negligence forced to the conclusion in its con that the right tentions on this point. court, relied appellees, apparently Co., Pub. 187 in Field v. Ark. on our decisions heavily Gazette
253, Huie, 205 (1933), 19 and Faulkner Ark. 59 S.W. 2d involved Both of these cases (1943). 2d S.W. — multi- with lead results poisoning requiring injury delayed in the final Field before ple diagnosis surgical procedures case, after an automobile colli- and loss of six years hearing in the Huie We consider the case at bar more in sion case. in the Huie with the cases found not in case than point point we said: with the Field and Huie cases. In Huie which, contends, he cases cites several Field case does not show doctrine that the followed not in here. These cases are point. apply C., P. In I. R. & Co. Humphreys, Ry. 1916E, 962, R.L. A. railway company on its constructed a culvert right-of-way. Damages resulted. This held that court adjoining property not run would at begin statute of it known that time
time
if were
of the construction
known and
could
be reasonably
merely
the culvert
time. The construction of
estimated at that
effect and
was lawful unless it had a damaging
whether would
of time alone would reveal
passage
—
act had
whether
have
effect
any wrongful
damaging
Here
act was com
been committed at all.
the wrongful
over.
the car was turned
at the moment
plete
*5
in the case of
is involved
Brown
same principle
177,
174 Ark.
294 S.W.
Power
Arkansas Central
Company,
of was the construe-
709. The action there complained
of
which was
constructed
tion
a
plant
lawfully
power
lands,
which,
claimed,
but
defendant’s
was
upon
nuisance.
constituted a
This court
through
operation,
held that it could not
as a matter of law that the
say
was of such a nature that it could be known at the
plant
that
must
result and that
damage
necessarily
beginning
of
the nature and extent
such
have been
could
ascertained and
at the time of con-
estimated
reasonably
not,
struction. If
the statute of limitations would not
to run
time of
the construction.
.at
begin
Inc.,
In Schenebeck
(8th
While it is true that the Arkansas Court has Supreme referred to the statute of limitations governing actions as “from the time when commencing * * was first inflicted Field v. injury Gazette Co., 187 253, S.W. 2d Publishing (1933), and that court has held a that who specifically plaintiff discovered more than three after an automobile years accident that his loss was traceable to the ac hearing cident could not recover since the “. . . act was wrongful over,” moment the car was complete turned Huie, Faulkner v. 205 Ark. 2d 839 (1943), nevertheless, an cases, analysis of we believe, demonstrates reads them too cases, As we construe the the in narrowly. stances where there has been between the delay act and the the occurrence of negligent harm damage, marks Thus, in Field v. beginning period. Co., also with a supra, slow- Publishing dealing Gazette disease, the court an instruction developing approved to determine whether the statute of jury authorizing run whether the by determining plaintiff . . “. contracted of which he . . .” malady complains to a crucial date. This test prior specified same mentioned as dictum again Barksdale Silica Co., Products 137 S.W. 901 (1940). 2d Even defendant has though completed negligent surgical Arkansas has held that the statute need not operation, *6 358 of act if discovery
commence with negligent running Tribble, 189 Burton v. has been See delayed. damage (1934) 503 malpractice S.W. 2d (patient’s more than three commenced action against surgeon recover for to damage years procedure following surgical not a left in held attributable to body, foreign object barred).1 to In an action for land subsiding damage of caused defen because of loss subjacent support act, dant’s earlier Arkansas has held Court negligent from the time the to the surface cause accrues damage when the defendant rather than becomes apparent & Min WesternCoal removed the support. underground 1115, 89 S.W. 2d Co. v. 191 Ark. Randolph, ing (1936). of in a element a cause of action A traditional of in action the invasion another’s negligence requires Torts, (Second) (1965); terest. of See Restatement § Prosser, Torts, 1964). (3d 146-148 ed. The Law of Or actual or dinarily, must suffer some loss plaintiff in in order to an action. bring Slight damage damage of itiates the accrual of the cause action. See Faulkner Huie, Prosser, 332, 168 2d 839 (1943); at 146-148. supra, had a that Red have
It may is entirely possible Top of National for breach con- cause of action Arkansas against 11, 1970, when Arkansas National tract on accruing That failed to reinstate insurance coverage. apparently 17, 1973, Red when on was the court’s view April Top third defen- to Arkansas National as a attempted join party in Bratton and Lowe dant the tort action against brought by that the action in resulting stipulated comes this was an action from whence appeal, judgment, in that Red in tort and not contract. We conclude sounding until tort had no tort action Midwest Top National and that was committed Top in- in its failure convert the Arkansas National’s negligence did become tortious as Red surance coverage lie, some ele- of action would until least which of ment accrued because to the record National. According negligence us, Arkan- before cause became actionable Top’s malpractice in medical cases. changed been has since 1The statute sas National on or after when May forced to bear its own because litigation expense defending transfer of Arkansas National’s failing surance coverage.
Both to this filed motions for litigation summary We conclude that the statute of limitations had not judgment. in run Red favor of Arkansas National when suit against Top 29, 1974, was filed on March the by Midwest but appellant’s the of the secondary argument concerning validity assign- ment from Red to Midwest is another As matter. Top already indicated, we are of the Red have could asserted opinion Top of action breach for of contract against National on 1970, when the breach occurred by failure to reinstate the insurance but Red could not in- Top such of breach contract action into terplead the jury tort action filed property Bratton and damage Lowe Red as the trial court against Top correctly pointed out. words,
In other it would that Red had an Top appear of two election or remedies action causes of separate against National, insurance in It thL case. could agent. have sued for for breach of when the contract breach damages out, as occurred above set sue or it could for in tort damages when the tort occurred and became actionable as set above out. The same three statute of in year applied either the breach of contract the or tort action. It would that in order avoid appear an action in bar statutory contract, the was careful to the suit it did file in lay tort rather than in contract. It is clear that had the suit been for of breach contract it would have been barred statute. Since the suit was in tort it was within the statute but we conclude it was not assignable.
It must be remembered that did assignor Top $6,850 not for Midwest judgment assign this case. Red owed did own Top judgment; Top $6,850 to Bratton and Lowe who were com- judgment plete between Red and its transactions strangers insurance Arkansas National. and Lowe’s Bratton’s agency claims against were liquidated by judgments $6,850 but the of this case was Red subject assignment tort claim its insurance Top’s separate agent. as written assignment appears pertinent part follows: rendered
On judgment September Lee Bratton and Archie Robert A. favor of with $6,850.00 interest total sum together Lowe in the rate of six date until thereon from that paid per- chose in and costs. The action (6%) cent annum per which that cause of action Red Top herein assigned Arkansas National agent, producing as promised provide coverage failing negligently debt against resulting Com- Midwest Mutual Insurance We authorize hereby cost, own to make any in its own name at its pany, demands, and ex- institute and all legal proceedings any which would be ours to en- ercise all and rights powers *8 or all of same to force this claim and receive any our claims forever all own use and hereby relinquish therein. thereto or rights observation that Red
We
with the
court’s
agree
claim
recovery
rights
Top’s assigned
$6,-
to the
National were not
limited
necessarily
judgment
Bratton
Lowe
obtained by
case,
this
As between
litigation
un-
to an
claim
Midwest amounted
actionable
'Lop’s
See
Farm
claim
So.
tort
and was
assignable.
liquidated
Inc.,
Co.,
S.W.
Bur. Cas. Ins.
Oil
Co. Wright
69;
2d
260 Ark.
2d 36 (1976).
Lowrey Lowrey,
Co.,
See also
Fire
Nat’l
Ins. Co.
Pettit-Galloway
333,
I would that the claim was This hold holding, assignable. our that tort would not conflict with my opinion, holdings no are There is claims not assignable. injuries here a claim involved sound such as one reason why under circumstances should not be assignable prevailing.