Central Manufacturers' Mutual Insurance Company v. Friedman

• Court: Arkansas Supreme Court
• Writing for the Court: Holt, J.
• Citation: Central Manufacturers' Mutual Insurance Company v. Friedman, 209 S.W.2d 102, 213 Ark. 9 (Ark. 1948)
• Decision Date: 08 March 1948
• Docket Number: 4-8475
• Parties: Central Manufacturers' Mutual Insurance Company v. Friedman

209 S.W.2d 102

213 Ark. 9

Central Manufacturers' Mutual Insurance Company v. Friedman

No. 4-8475

Supreme Court of Arkansas

March 8, 1948

Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge.

Affirmed.

Hugh M. Bland, for appellant.

Hill Fitzhugh & Brizzolara, for appellee.

Holt J.

OPINION

Appellee brought this action to recover for loss of personal property belonging to his minor son, Benno S Friedman, in the amount of $ 428.95, on a Floater Insurance Policy issued to appellee by appellant company, on July 20, 1946, in the principal sum of $ 5,000, for which appellee paid a premium of $ 155. Appellant denied liability.

A trial before the court sitting as a jury resulted in a judgment for appellee for the full amount claimed, for attorneys' fees and 12% penalty. This appeal followed.

Appellant says there are only two questions for decision: "1. Was Benno S. Friedman, at the time of the thefts of his personal property, a member of the insured's family of the same household within the terms and provisions of the policy of insurance? 2. Did the court err in permitting the plaintiff to introduce incompetent, irrelevant and hearsay testimony and to consider the same in making its findings of fact and conclusions of law?"

Mr. I. J. Friedman, Benno's father, testified: "My name is I. J. Friedman. I live at 722 South 24th Street, Fort Smith, Ark., and I have a policy of insurance with The Central Manufacturers' Mutual Insurance Company of Van Wert, Ohio. (The policy was produced and introduced in evidence). My son, Benno S. Friedman, was drafted into the Army in the spring of 1946. At that time he was 18 years of age. He is not married and was living at my home at the time he was drafted. He is now 19 years of age."

Over appellant's objection and exceptions, Mr. Friedman was further permitted to testify that his son, Benno, would be discharged from the Army when his 18 months were up, that he did not have a separate home of his own, that he was subject to Army orders wherever he was located, that his son attended Ohio State College three or four months before he was drafted, attended Officers Training School and received a commission, that he was paying his son's expenses at Ohio State, that he intended to send him back to school after his discharge and that his son was coming back home after his discharge.

It was stipulated "that on February 1st to 8th, 1947, there was stolen from Benno S. Friedman, from locked room by picking lock, in Billeting Officers Quarter, No. 804, Room No. 18, at Fort Eustis, Virginia, the following articles," (naming them), of the value of $ 238.45, and "that on January 22, 1947, there was stolen from said Benno S. Friedman, from locked suitcase from Building 2309, Fort Eustis, Virginia, the following articles," (naming them), in the amount of $ 252.50, "and that if the plaintiff is entitled to recover he should recover in the amount of $ 428.95 for the loss of the articles."

The policy in question provides: "Property Covered: 1. Personal property owned, used or worn by the persons in whose name this policy is issued, hereinafter called the Insured, and members of the Insured's family of the same household, while in all situations, except as hereinafter provided. . . . 4. With respect to the unscheduled personal property ordinarily situated throughout the year at residences other than the principal residence of the Insured, the Company shall not be liable in excess of ten per cent of the amount of insurance set forth in Item (a) Paragraph 3," or ten per cent of $ 5,000."

At the time of the property loss here, Benno was a minor and it was the duty of the parent to support and educate him so long as he remained a member of his family. Biggs v. St. Louis, Iron Mountain & Southern Railway Company, 91 Ark. 122, 120 S.W. 970, and Frauenthal & Schwarz v. Bank of El Paso, 170 Ark. 322, 280 S.W. 1001, 44 A. L. R. 871.

The domicile of Benno was with his father, Landreth v. Henson, 116 Ark. 361, 173 S.W. 427. Domicile includes residence and place of abode. Webster defines "domicile": "A place of residence, either of an individual or a family; a dwelling place; an abode, a home or habitation." Residence and place of abode are synonymous. Husband v. Crockett, 195 Ark. 1031, 115 S.W.2d 882. The Constitution of this state provides: Art. XIX, § 7: "Absence on business of the state or of the United States or on a visit, . . . shall not cause a forfeiture of residence once obtained."

The evidence is undisputed that Benno was unmarried, a minor, was living with his father at the time of his induction into the Army, and intended to return to the parental home in Fort Smith when discharged. He did not intend to change his domicile or residence and had made no change unless his military service alone brought about such change. In the circumstances here, Benno's military service did not bring about any change in his domicile or residence.

In the very recent case of Kennedy v. Kennedy, 205 Ark. 650, 169 S.W.2d 876,...