Barrett v. Commercial Standard Ins. Co.
| Decision Date | 15 November 1940 |
| Docket Number | No. 14135.,14135. |
| Citation | 145 S.W.2d 315 |
| Court | Texas Court of Appeals |
| Parties | BARRETT v. COMMERCIAL STANDARD INS. CO. |
Appeal from County Court at Law No. 1, Tarrant County; David McGee, Judge.
Action by James R. Barrett against the Commercial Standard Insurance Company to recover on a policy of insurance alleged to cover the loss of an automobile from theft, wherein the Sun Auto Finance Company was made a party. The court sustained defendant's motion for judgment notwithstanding the verdict, and entered judgment accordingly, and James R. Barrett appeals, and defendant cross-assigns error.
Judgment, in so far as it denied recovery to plaintiff, reversed, and judgment rendered for plaintiff, and judgment as against the mortgagee left undisturbed.
Fay W. Prescott, of Fort Worth, for appellant.
Buck & Knapp, of Fort Worth, for appellee.
James R. Barrett sued Commercial Standard Insurance Company on a policy of insurance alleged to cover the loss of an automobile from theft. The parties will carry the same designation here as in the trial court.
Plaintiff owned an automobile and purchased from defendant a policy of insurance against theft. The contract was in evidence and provides, among other things, that the defendant would pay to plaintiff such loss as he should sustain, caused by theft of the car, excepting, however, a theft committed by a person or persons in the insured's household, or by one acting under express or implied authority of the insured. The obligation provides for payment as insured's interest may appear.
Plaintiff's contention was that the automobile was stolen by Cramer Lee Payne on August 19, 1939. The policy contract was effective at that time. The Sun Auto Finance Company was made a party plaintiff under an allegation that it held an interest, as mortgagee, in the insured car. The Sun Auto Finance Company appeared and alleged that it held a chattel mortgage lien on the car to secure an unpaid balance of $16.36 owing by plaintiff Barrett.
The case was tried to a jury on special issues. Along with the issues submitted, the court defined the words "Family" and "Household". These explanations were: "By the word `family' as used in this charge, is meant, all of the individuals who live under the authority of another, including the servants of the family." And, "The word `Household' as used in this charge, means, those who dwell under the same roof and constitute a family." In response to the special issues submitted, the jury found that, (1) Cramer Lee Payne, the nephew of Barrett (insured), was not a member of the household of Barrett at the time of the taking of the car by Payne; (2) Payne did not have implied authority to take the car at the time and place he took it; (in connection with the foregoing issue an explanation was made of what was meant by "implied" authority); and (3) the value of the car, when taken, was $200.
After the verdict was received by the court, defendant filed its motion for judgment non obstante veredicto, based upon the grounds that the verdict was contrary to the undisputed and uncontradicted evidence which established as a matter of law that Cramer Lee Payne was a member of the insured's household, within the meaning of the contract, when he took the automobile on August 19, 1939. The court sustained defendant's motion for judgment notwithstanding the verdict, and entered judgment accordingly. The Sun Auto Finance Company did not appeal, but from the judgment entered plaintiff has perfected his appeal and now brings the record before us for review.
That part of Article 2211, Vernon's Texas Civil Statutes, applicable to this appeal is as follows: "Provided, that upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper." It is always true that if a plaintiff fails to produce sufficient evidence to raise an issue of his right to recover, the court should instruct a verdict for the defendant. It is equally true that if such evidence is produced, the court should not summarily instruct a verdict, but leave the matter to a determination by the jury, who are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. It logically follows that when a jury question is thus presented, the court should not sustain a motion for judgment non obstante veredicto, for obviously a "directed verdict" would not be proper.
If it could be said that Payne, who took plaintiff's car, was a member of his "household", then there was no coverage by the terms of the policy sued on. We have seen no case by the courts of this State which construes the word "household" when used as in this case. The trial court's definition, quoted above, was not objected to by defendant, and it is deemed to have approved what the court said. Article 2185, R.C.S.
Provisions in insurance contracts similar to the one before us have been construed by courts of other jurisdictions. In those cases the words "family" and "household" seem to be treated as if meaning the same. Rydstrom v. Queen Ins. Co., 137 Md. 349, 112 A. 586, 14 A.L.R. 212, was a suit on a contract of insurance against theft. Insured's car was stolen by his nephew, who at the time was visiting in his uncle's home. The nephew resided in a distant state and was a temporary guest in the home where the car was stolen. The insured testified that his nephew had the freedom of the household at the time; while living for the short time in his uncle's home, the theft was committed. The court held that the nephew was a member of insured's household and no liability was incurred by the insurance company. In such circumstances the court in that case held that the meaning of the word "household," when used as a qualifying word, pertained to the house or family.
"Household" is defined by Webster's New International Dictionary as: "Those who dwell under the same roof and compose a family; a domestic establishment; family." Murray's Oxford Dictionary says: "The members of a house collectively; an organized family, including servants or attendants dwelling in a house; a domestic establishment." To the same effect is the Century Dictionary. The foregoing definitions were relied upon by the court in Ocean Accident & Guaranty Co., Ltd., v. Schmidt, 6 Cir., 46 F.2d 269. That court also cites Arthur v. Morgan, 112 U.S. 495, 499, 5 S.Ct. 241, 243, 28 L.Ed. 825, wherein it is said: "Persons who dwell together as a family constitute a `household.'"
The evident purpose of placing an exception, such as the one here, in a policy of insurance, was to guard against liability when the theft is committed by one who has unrestricted access to the home and its contents, including the keys to the car in the instant case. In its most common acceptation, the word "family" includes father, mother and all the children, wherever they may reside. A servant is an employee, but if his duties are such that he does not have freedom of the home as would a member of the immediate family, certainly such employee would not be classed as a member of the "household"; but if his employment was such as to make it his duty to go in and out of the family home and exercise watch over its contents, he would be embraced within the word "household". We think this is what was meant by the parties to the contract under consideration.
Bearing in mind that the trial court sustained defendant's motion for judgment notwithstanding the verdict, upon the theory that the undisputed testimony showed the alleged thief was a member of the insured's "household" as a matter of law, and that an instructed verdict would have been proper, let us look at the testimony in the record.
James R. Barrett, the plaintiff, Cramer Lee Payne, the alleged thief, and the witnesses Birdie Lee Brown and Helen Dickson are negroes. Plaintiff testified substantially that Payne was his nephew, about nineteen years old, had no home...
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