{
  "id": 1672663,
  "name": "THE HOME INSURANCE COMPANY v. Nellie HARWELL et al",
  "name_abbreviation": "Home Insurance v. Harwell",
  "decision_date": "1978-07-03",
  "docket_number": "78-38",
  "first_page": "884",
  "last_page": "888",
  "citations": [
    {
      "type": "official",
      "cite": "263 Ark. 884"
    },
    {
      "type": "parallel",
      "cite": "568 S.W.2d 17"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "76 S.W. 2d 87",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1934,
      "opinion_index": 0
    },
    {
      "cite": "189 Ark. 986",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1425612
      ],
      "year": 1934,
      "opinion_index": 0,
      "case_paths": [
        "/ark/189/0986-01"
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    {
      "cite": "243 Ark. 789",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8724187
      ],
      "weight": 2,
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/ark/243/0789-01"
      ]
    },
    {
      "cite": "254 Ark. 387",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1624098
      ],
      "weight": 3,
      "year": 1973,
      "opinion_index": 0,
      "case_paths": [
        "/ark/254/0387-01"
      ]
    },
    {
      "cite": "245 Ark. 735",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1606740
      ],
      "weight": 3,
      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/ark/245/0735-01"
      ]
    },
    {
      "cite": "259 Ark. 696",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1619118
      ],
      "weight": 2,
      "year": 1976,
      "opinion_index": 0,
      "case_paths": [
        "/ark/259/0696-01"
      ]
    }
  ],
  "analysis": {
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    "char_count": 6331,
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    "simhash": "1:37cc84c5a24ccd80",
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  "last_updated": "2023-07-14T19:12:30.639178+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Harris, C.J., and George Rose Smith and Fogleman, JJ."
    ],
    "parties": [
      "THE HOME INSURANCE COMPANY v. Nellie HARWELL et al"
    ],
    "opinions": [
      {
        "text": "Frank Holt, Justice.\nA jury awarded appellee Nellie Harwell damages in the amount of $12,000 for her personal injuries and approximately $413 for property damage arising out of an automobile accident involving a vehicle driven by appellee John Hinman and owned by appellee Donald Eoff. The jury assessed the damages against Hinman and appellant. Eoff was exonerated of any liability on the asserted theory of his negligent entrustment. The court awarded an attorney\u2019s fee of $4,000 and assessed a 12% penalty and interest upon the judgment against appellant, which had issued its automobile insurance policy, including uninsured motorist coverage, to appellee Harwell. Home Insurance Company appeals. It first contends the trial court erred in refusing to direct a verdict in its favor because there was no substantial evidence that Hinman was an uninsured motorist within the meaning of the uninsured motorist provisions of her policy and Ark. Stat. Ann. \u00a7 66-4003 (Supp. 1977). We must agree.\nUnder the uninsured motorist statute, \u201cthe burden of showing the other vehicle is uninsured is on the plaintiff.\u201d Ward v. Consolidated Underwriters et al, 259 Ark. 696, 535 S.W. 2d 830 (1976); and South. Farm Bur. Cas. Ins. v. Gottsponer, 245 Ark. 735, 434 S.W. 2d 280 (1968). Here the parties stipulated that Hinman himself did not have in effect at the time of the accident a liability insurance policy as required by Arkansas law and Hinman so testified. Also, according to the evidence, Hinman was driving Eoff\u2019s car without his permission. Even so, appellant argues, appellee Harwell adduced no evidence whatsoever as to whether Eoff, the owner of the vehicle driven by Hinman, had insurance coverage on his automobile when Hinman was driving. In Southwestern Underwriters Ins. v. Miller, 254 Ark. 387, 493 S.W. 2d 432 (1973), the appellee was injured in a collision with an automobile driven by one defendant and owned by another defendant. The driver of the vehicle admitted that he, himself, did not have insurance coverage. We said: \u201cThere was no evidence the vehicle was uninsured.\u201d\nHere, by Mrs. Harwell\u2019s insurance policy, the appellant was obligated to pay all sums which she was entitled to recover as damages from the owner or operator of an \u201cuninsured highway vehicle.\u201d In the circumstances, we are of the opinion the evidence adduced was insubstantial to qualify the vehicle as an \u201cuninsured vehicle\u201d within the meaning of appellant\u2019s policy and \u00a7 66-4003.\nNext appellant asserts error in the court\u2019s failure to include in its instruction to the jury the bracketed portion of AMI 901 (B) which provides:\nWhen the driver sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout (or if he is warned of approaching imminent danger) then he is required to use ordinary care to have his vehicle under such control as to be able to check its speed or stop it, if necessary, to avoid damage to himself or others.\nAppellant argues that the fact situation presented here warranted the giving of this instruction. Mrs. Harwell testified that she was traveling north on Highway 7. She had just crossed the Arkansas River bridge and was approaching a \u201cT\u201d intersection where Highway 247 runs into Highway 7 on her right. She was driving at a \u201cvery slow pace\u201d due to road construction and speed limit signs on Highway 7. She first noticed Hinman\u2019s vehicle when she was ten or twelve car lengths from the intersection and \u201cjust before he entered the intersection.\u201d Hinman ran a stop sign, \u201ccame out of the intersection and crossed the Highway 7 in front of [her] vehicle.\u201d Hinman cleared her lane and made it to the lefthand side of the road. She did not know whether or not he was going to make a left hand turn onto Highway 7, but her lane was \u201cfree and clear\u201d and there was no other traffic coming from her right off Highway 247. She then looked out and saw Hinman\u2019s car backing across the road coming directly at her. She did not have room to stop.\nHinman testified that he started into the intersection and failed to make a right hand turn and ended up on the left hand side of the road. He saw a truck coming over the bridge heading north on Highway 7. \u201cI ran out too wide, and a diesel was coming straight . . . over the overpass there.\u201d He did not see him when he first pulled out, but \u201cI looked back and there he come.\u201d He put his car in reverse and backed up. He did not see Harwell\u2019s car until he hit it. \u201cI just panicked and tried to get out of the way.\u201d \u201cI didn\u2019t have no choice to either hit him or hit the car behind me, so I just put it in reverse and backed up.\u201d\nThe court instructed the jury as follows:\nIt is the duty of the driver of a motor vehicle to keep his vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case.\nThe instruction proffered and refused imposes a duty on the driver to have the vehicle under such control as to be able to check its speed or stop it whereas the instruction given requires the driver to control the vehicle as a reasonably careful driver would in the circumstances. Here Mrs. Harwell was faced with an unexpected emergency which she could not reasonably anticipate. In the circumstances, we are of the opinion that the instruction given by the court was sufficient and the requested instruction was properly refused. See Reed v. McGibboney, 243 Ark. 789, 422 S.W. 2d 115 (1967); and Coca-Cola Bottling Co. of Blytheville v. Doud, 189 Ark. 986, 76 S.W. 2d 87 (1934).\nIt is our practice in cases such as the one at bar to reverse and remand rather than dismiss since it is possible that the deficiency in the proof, as previously discussed, can be further developed upon a retrial. South. Farm Bur. Cas. Ins. v. Gottsponer, supra; and Southwestern Underwriters Inc. v. Miller, supra. Therefore, we deem it unnecessary to discuss appellant\u2019s contention that the award of damages and attorney\u2019s fees are excessive.\nReversed and remanded.\nWe agree.\nHarris, C.J., and George Rose Smith and Fogleman, JJ.",
        "type": "majority",
        "author": "Frank Holt, Justice."
      }
    ],
    "attorneys": [
      "Tom Forest Lovett, P.A., for appellant.",
      "Williams & Gardner and Laser, Sharp, Haley, Young & Huckabay, P.A., for appellees."
    ],
    "corrections": "",
    "head_matter": "THE HOME INSURANCE COMPANY v. Nellie HARWELL et al\n78-38\n568 S.W. 2d 17\nOpinion delivered July 3, 1978\n(Division I)\nTom Forest Lovett, P.A., for appellant.\nWilliams & Gardner and Laser, Sharp, Haley, Young & Huckabay, P.A., for appellees."
  },
  "file_name": "0884-01",
  "first_page_order": 916,
  "last_page_order": 920
}