Boston Mfrs. Mut. Ins. Co. v. Fornalski, 69--198

• Decision Date: 10 April 1970
• Docket Number: No. 69--198,69--198
• Citation: 234 So.2d 386
• Parties: BOSTON MANUFACTURERS MUTUAL INSURANCE COMPANY, Appellant, v. W. H. FORNALSKI, as father and natural guardian of Wanda Fornalski, a minor, Appellee.
• Court: Florida District Court of Appeals

Page 386

234 So.2d 386

BOSTON MANUFACTURERS MUTUAL INSURANCE COMPANY, Appellant, v. W. H. FORNALSKI, as father and natural guardian of Wanda Fornalski, a minor, Appellee.

No. 69--198.

District Court of Appeal of Florida, Fourth District.

April 10, 1970.

Rehearing Denied May 21, 1970.

John W. Thornton, of Stephens, Demos, Magill & Thornton, Miami, for appellant.

Arthur B. Parkhurst, of Parkhurst, Hayes & LaHurd, Fort Lauderdale, for appellee.

OWEN, Judge.

Seventeen-year old Wanda Fornalski sustained bodily injury while on the premises of a neighbor, Akers. Wanda's father sought recovery of medical expenses under the medical payments coverage of the Akers' homeowner's insurance policy. The non-jury trial having resulted in a judgment in favor of Mr. Fornalski, the insurer brings this appeal.

The material portions of the policy provision relating to coverage for medical payments is set forth in the margin. ¹ Appellant's defense in the trial court was, and its contention in this court is, that the medical payments coverage did not apply to the bodily injury sustained by Wanda for two reasons: (1) the bodily injury which Wanda sustained was not caused by accident; and (2) at the time Wanda sustained the bodily injuries she was on the premises without the permission of an Insured.

The material facts stated most favorably to the plaintiff are as follows: Mr. Fornalski resided with his wife and daughter Wanda in a residential neighborhood in Plantation, Florida. Don Waldron, a friend of Wanda's lived across the street. The Akers family lived adjacent to the Waldrons. On September 17, 1967, one Geraldine (Gerry) Johanscik, a girl friend of Don Waldron, had been reported missing. Wanda attended a party on the evening of September 17 at the home of a friend of Gerry's at which time Wanda learned that Gerry was missing. Wanda left the party near midnight. When she arrived at home Wanda and her mother talked about the fact that Gerry was missing. Upon looking out the window, Wanda observed a group of ten to fifteen boys gathered in the street. In the meantime, Don Waldron was looking around his house for Gerry. As he entered the garage, the door of the utility room opened and Gerry ran out. Seeing this from the window, Wanda exclaimed, 'There is Gerry', and ran out of the house and across the street. Wanda grabbed Gerry's hand in which she held a knife, causing Gerry to say to Wanda, 'If you don't leave me alone * * * I am going to kill Don, he needs to be killed. If you don't leave me alone, I am going to stab you.' However, Wanda continued to hold onto Gerry, the two struggling or tussling together. This melee continued down the sidewalk and over onto the lawn of the home owned by the Akers family, where Wanda was stabbed by Gerry and fell down on the Akers' lawn.

There was no proof of any expressed permission on the part of Akers for Wanda to be on the Akers' premises at the time of her injury. The issue is thus narrowed as to whether there was any proof of implied permission.

Permission to come upon one's premises may be implied from custom, usage or conduct. Prior v. White, 1938, 132 Fla. 1, 180 So. 347. Such implied consent is necessarily limited, however, to those acts that are within a fair and reasonable interpretation of the terms of the grant. 32 Fla.Jur., Trespass, § 9.

The evidence relative to custom, usage or conduct from which it might be implied that Wanda had permission to come upon the Akers' premises was extremely limited. On one occasion some months before the injury, Wanda had spoken to Mrs. Akers while the latter was standing in her yard. Occasionally, Wanda's younger sister visited one of the Akers' children. From time to time younger children in the neighborhood, in the course of their daytime play, came into the Akers' yard. The neighborhood was a typical suburban residential area.

It is conceivable that this evidence would sustain an inference of implied permission for Wanda to come upon the Akers' premises at reasonable times for some normal and proper purpose, such as having a social visit with Mrs. Akers or retrieving a younger sister for mealtime. It would not be inconceivable to infer that neighborliness customary in such a residential area would imply permission to come upon the premises in the middle of the night to seek assistance of an emergency nature. But there is no evidence here that Wanda went on the Akers' premises at 12:30 in the morning to seek emergency assistance or to conduct any of those social amenities which might be said to be customary in a suburban residential neighborhood. The evidence is clear that Wanda became engaged in a tussle with Gerry on or in front of the Waldron property, and that as the two of them continued the scuffling and tussling on the sidewalk they moved fortuitously in the direction of and onto the Akers' premises where the stabbing occurred. There is not a scintilla of evidence of any custom or usage in the neighborhood, or prior conduct on the part of Akers, from which it could be lawfully inferred that teenagers engaged in scuffling and tussling on the sidewalk in front of the property at 12:30 in the morning have the property owner's implied consent or permission to come upon the property to conduct such activities.

At the time Wanda sustained bodily injury she was on the Akers' premises without the permission required under the policy...