684 WESTERN CASUALTY & SURETY CO. V. • [190 INDEPENDENT ICE CO. WESTERN CASUALTY & SURETY COMPANY V. INDEPENDENT • ICE COMPANY. 4-3809
Opinion delivered April 1, 1935. 1. INSURANCE—LIABILITY FOR PERSONAL INJURY.—Where an indemnity policy insured a person named therein against loss arising from the maintenance or use, among others, of a certain described truck, it is immaterial that the truck was owned by a third person, -where it was engaged in the delivery of ice for insured at the time of the accident. 2. TORTS—WHAT LAW GOVERNS.—The law of liability for personal injuries is governed by the law of the State in which the injury occurred. 3. INSURANCE—LIABILITY FOR PERSONAL INJURY.—Where the driver of a truck, while delivering ice for insured, stopped his truck to permit a six-year old child to alight opposite his home and under his direction the child got out and ran across the road and was injured by a rapidly moving car, held that the truck was engaged in "commercial purposes" within the indemnity policy insuring against loss by reason of the use of such truck for commercial purposes. 4. INSURANCE—CASUALTY INSURANCE.—Where insurer in a personal injury action against insured assumed the defense of the case, it thereby admitted that the casualty was W -ithin the terms of the policy issued by it, and waived all defenses. 5. JUDGMENT—COLLATERAL ATTACK.—Where it did not •appear on the face of a judgment that the case had been compromised, an allowance of an attorney's fee is not subject to collateral attack. 6. INSURANCE—LIABILITY INSURANCE—ATTORNEY'S FEB.—In a suit by insured in an indemnity policy against insured to recover the amount of a judgment and costs incurred by insured in defending a personal injury action wherein plaintiff sued for $30,000 and recovered $500, allowance of $500 as fee of insured's attorneys held reasonable. Appeal from Miller Circuit Court; Dexter Bush, Judge ; affirmed. A. L. Burford and B. E. Carter, for appellant. Arnold & Arnold, for appellee. HUMPHREYS, J. This suit was brought in the circuit court of Miller County by appellee against appellant on an indemnity insurance policy issued by said appellant to it to recover the amount of a. judgment and costs obtained against it and L. -C. Johnson by A. J. Anthony for himself and the benefit of his minor son in said court.
• ARK.] • WESTERN CASUALTY & SURETY CO. V. 685 INDEPENDENT ICE CO. on the 4th day of June, 1934, together with an attorney's fee of $500 expended in defending tbe Anthony suit, on account . of bodily injuries suffered by the minor, alleged .fo have been eaused•hy. an automobile described in the policy, which was in use 'for commercial purposes by appellee. arid L. C. Johnson'when the injuries . were re-' ceived. The automobile insurance policy, made the basis of this suit, insured appellee against loss from liability imposed by law upon the assured by reason of the ownership of or maintenance or use of any of the automobiles described therein; for bodily injuries received by any person (not excepted) . as the result, of an accident caused by said 'automobiles: _The, truck alleged to have caused • the injitry . to said minor was described in the policy aS the "L. C. Johnson, 1931,'Chevrolet 1 1/9 . ton truck," and, on the day the child received. his bodily . injuries, L. C. Johnson Was engaged in delivering iee purchased frem appellee and sold. by him to customefs on a regular- route in the State of Texas, running out of Texarkana -toward Shreveport. , The snit in the Anthonf 'ease against appellee and L. C. Johnson was brought for $30,000, and the final judgment rendered therein was for $500 and costs. The jtidgnient therein' was set out and made : a part Of the complaint in the- instant , case. The judg'metit Con---tains;a recital that the, ease was tried:upon the pleadings and , the 'oral evidence adduced therein. • It was also alleged in the complaint in the ,instant case that the appellant's -attorney -defended the Anthony case for appellee .until after Anthony's attorney filed a substituted amended complaint*; . that; during the. time said attorney repreSented appellee . in. the Anthony-. case, he ;filed-a motion for a cOst bond and a - deiturier, and 'took statementS 'of practically all' the witnesses in -the' caSe. When appellee employed Arnold '86. Arnold to defend the 'Anthony suit' for it, appellant's -attorney 'sent. them . all the data in . his -files pertaining to said snit withOut .any explanation, so far as the reeord shows, as to why he was • withdrawing from the case. Thecomplaint in the instant case also set out and made the cOmplaint in the Anthony case a part thereof:
686 WESTERN CASUALTY & SURETY CO. v. [190 INDEPENDENT ICE CO. It was alleged in the Anthony. suit that L. C. John-son, while acting :within the scope of his authority, invited the child, a minor six years of age, to accompany him on his route ; that the child did so, and rode in said truck for approximately one miie; . that Johnson turned around and proceeded north in the direction from whence he came to a point on.the much traveled highway,, across the road and opposite the child!s home and stopped the truck so the child might alight and cross the road to his home; that, under his direction, the child got out and ran across the highway ; that, in doing so, a rapidly moving car coming from the north and• being operated by one Moore ran over, and seriously injured" it ; that the point at which the child was allowed and directed:to alight and • run across the.highway was a. place of great . danger .on :account . of : being a much. traveled thoroughfare, Which danger could not ,be appreCiated . by a child of that age.:. . . Appellant contends for a reVersal of the judgment because, according to the undisputed evidence; the.,truck alleged to have caused the injury was owned by- L. C. Johnson and not by appellee. This ..can • make no difference because appellee was the one assured in the policy, and the only one indemnified therein for injuries result-ing- to third .persons by automobiles described in the policy.. The truck alleged to have caused the injury was particularly described in the policy, and was in use for commercial business of appellee and L: C. Johnson on the day of the injury. • • Appellant also- contends for a reversal of the judgment because the trnck was 'standing still, and did. not trike tlie child, and that therefore no .liability was imposed by the law on appellee. It was alleged in the An-thony complaint that the injuries to the child occurred in the State of Texas, and thaundisputed proof shows this to be true. The . gravamen of the complaint :in the An-thony case was the alleged' negligence on the part of appellee and its employee, L. •. Johnson, acting within the scope of his authority, in taking a child sik years of age and. without sufficient knowledge and discretion' to save himself .from bodily injury into the truck, and debarking him therefrom in a place of danger, where it was
ARK.] WESTERN,CAS6ALTY & SliliETY CO. v. 687
INDEPENDENT ICE CO. hit and injured by a paSsing motorist. The question of liability must be governed by.the law of Texas, and under the law of that State, in the case of Texas Company v. Blackstock, 'Court of 'Civil Appeals of Texas, 21 S. W. (2d) 13, the . Texas Company was held. liable for the act of its truck driver, under facts- similar• to the case at •bar. Under the rule announced* in the . case of 'Texas Com,Pany v:• Bläckstock, Auprd; the truck in the instant case was in cominercial use at the time of the accident, and comes clearly within theprovisions of the indemnity policy insuring:appellee .against `.`loss from liability imposed by law upon the assured'* . * -* by reason of the Use of any of the automobiles described therein for , commercial purPoSes." . , . NfOreoVer, appellant sassumed , the. defense Of the . An-thony. case, thereby admitting' that thercasualty, was within the terms of the .pOlicy issued . by it, and waived all defenses it might have had and cannot he heard to say that the policy did not cover the child's injuries. It is also contended that the judgment allowing an attorney's fee of $500 , should be reversed because the suit was compromised.. The Anthony suit was for . $30,- 000, and the judgment rendered ,theiein recited that it was tried *upon the pleadings and* evidence . adduced. 'There is nothing in the face Of the jUdgment tending•to show *a compromiSe, so it cannot be ' collaterally attacked. Appellant agreed in the indemnity polick to defend the suit on behalf of the assured and tO pay all the 'expenses incurred by the . aSshied in any suit brought againSt it to enforde- a claim covered by the policy. * ApPellant assumed this burden and defended the *suit -Until Anthony filed an amended and substituted complaint,-after . which, appellant's attorneywithdrew*froni the casb and turned over his files to Arnold & Arnold, who were employed by appellee to defend the- Suit: It was defended by them to a . very Successful cOnchision, as the Anthonys recovered only $500 for a very serious injury to the_ child. We think $500 a very reasonable fee for the Services rendered. No error . appearing; the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.