Becklin v. Travelers Indem. Co., O--437

• Decision Date: 20 June 1972
• Docket Number: No. O--437,O--437
• Citation: 263 So.2d 629
• Parties: Harold BECKLIN, Jr., Appellant, v. The TRAVELERS INDEMNITY COMPANY, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 629

263 So.2d 629

Harold BECKLIN, Jr., Appellant, v. The TRAVELERS INDEMNITY COMPANY, a foreign corporation, Appellee.

No. O--437.

District Court of Appeal of Florida, First District.

June 20, 1972.

Rehearing Denied July 12, 1972.

Thomas F. Woods, of Woods & Johnston, Tallahassee, for appellant.

Harry L. Michaels, of Hall, Hartwell, Michaels & Hall, Tallahassee, for appellee.

PER CURIAM.

Appellant seeks reversal of a final judgment denying him damages under a homeowner's insurance policy. The appellant's mother was the owner of the policy which defined an insured as follows:

'Insured: The unqualified word 'Insured' includes (1) the Named Insured and (2) if residents of his household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of an insured . . .'

Appellant was visiting at his mother-in-law's home when it burned and destroyed his porperty. Appellant, although married, was solely supported by his parents and had never held a job. At the time of the fire, appellant had just returned from school in Oklahoma and was going on to school in Missouri after the Christmas holidays.

The trial court held that on the basis of the criteria set forth in General Guaranty Insurance Co. v. Broxsie, 239 So.2d 595 (Fla.App.1970), the appellant had failed to prove by a preponderance of the evidence that he was a resident of the same household as his mother at the time of the fire. We do not agree.

This court in Broxsie enunciated the elements which go to prove residency under an insurance policy as follows:

'. . . (1) close ties of kinship; (2) a fixed dwelling unit; and (3) enjoyment of each of part of the living facilities.'

This court in Broxsie also distinguished a resident from a nonresident in that:

'. . . The resident is more than a mere visitor or transient, but lives at a place with additional attachments of such significance as to render that person a more or less consistent part of the community.'

It cannot be denied that appellant met the first three requirements stated above. We feel he also had the requisite attachment to render him a consistent part of the community. The evidence shows that appellant, his wife, and close friends considered appellant a member of his mother's household. The address of his mother's house was on all his legal documents. Appellant kept personal belongings in the house; maintained a phone listed in his name; and received his mail there. Appellant considered his mother's home as his residence even though he was married and on occasion lived elsewhere while attending school. We are not unmindful of the rule that an appellate court will not reweigh the evidence and substitute its findings of fact for the findings of the trier of fact in the lower court. Ross v. Florida Sun Life Ins. Co., 124 So.2d 892 (Fla.App.1960). However, where the trial court has misconceived the legal effect of the facts, the appellate court is required to take cognizance thereof. Gaer v. Gaer, 168 So.2d 789 (Fla.App.1964); and Lee Construction Corp. v. Newman, 143 So.2d 222 (Fla....