Cobb v. State Sec. Ins. Co.

• Decision Date: 13 February 1979
• Docket Number: No. 60626,60626
• Parties: Robert Joe COBB et al., Plaintiffs-Respondents, v. STATE SECURITY INSURANCE COMPANY, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 726

576 S.W.2d 726

Robert Joe COBB et al., Plaintiffs-Respondents, v. STATE SECURITY INSURANCE COMPANY, Defendant-Appellant.

No. 60626.

Supreme Court of Missouri, En Banc.

Feb. 13, 1979.

Edward K. Fehlig, Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, for defendant-appellant.

Warren W. Davis, Davis & Davis, Clayton, for plaintiffs-respondents.

JOSEPH J. SIMEONE, Special Judge.

I.

Plaintiffs-respondents, Robert Joe Cobb and Norma Jean House, as parents of an illegitimate child, Rhonda Lynn House, obtained a judgment in the sum of $7,500.00 against defendant-appellant, State Security Insurance Company in the Circuit Court of the City of St. Louis for the wrongful death of Rhonda Lynn under the uninsured motorist clause of an insurance contract. The insurance company appealed to the St. Louis District and the judgment was affirmed. We granted the Insurance Company's application to transfer and now decide the case as an original appeal. Art. V, § 10, Rule 83.03.

For reasons hereinafter stated we affirm the judgment and hold under the circumstances here (1) the father and mother of an illegitimate child, may maintain an action under the insurance contract for the wrongful death of their child, (2) that the child is a "relative" of the named insured, Robert Joe Cobb and (3) the child is a member of the insured's "household". We adopt portions of the opinion of the Court of Appeals, McMillian, J., without quotation marks.

II.

This case involves the story of a young child who was hit by an uninsured motorist and her parents both formerly divorced and who admittedly were never married to each other.

Although it is extremely difficult logically and chronologically to follow the evidence relating to the various divorces, places of residence of the parties, the places of employment, the number of children born in and out of wedlock, as well as other facets of this intriguing case, the jury could reasonably find the following.

Robert Joe Cobb, the acknowledged biological father of Rhonda Lynn House was married to one Ellen Burgess on March 16, 1960. The marriage lasted a very short time "Not even two weeks." On July 2, 1960, he married Wilda Inez Hunter also known as Chris. That marriage, too, ended in divorce in January, 1963.

In July, 1963, Robert met Norma Jean House who had been married to a Mr. Williams. Norma had five children as a result of her marriage to Mr. Williams one of whom was Donna, a witness in this proceeding. When she met Robert, she was divorced from Mr. Williams. Norma also had a child, born in January, 1964, by a man to whom she was not married and who was neither Robert nor her husband. She was pregnant when she met Robert.

When she met Robert in July, 1963, Norma was living on Gravois in the City of St. Louis and Robert was living with his mother Eugenia (Euceba?) Prather, on Victor Avenue. Robert and Norma were introduced by Norma's sister, Ruth Karn. Sometime later, perhaps in 1966, Robert moved to 2307 South Thirteenth Street, where after a series of residential moves, Norma also moved to Thirteenth Street and was a neighbor of Robert's. Her apartment was next to his. By that time, Robert and Norma were spending a great deal of time together and were having sexual relations. Robert "stayed there quite often in her house . . . (and) 'overnight' ". While Robert maintained a residence, although not a mailing address on Thirteenth Street, Norma moved to Louisiana and Winnebago. When Norma lived there, Robert stayed "five and six times a week." Over the years of this relationship four children were born to Robert and Norma a pair of twins born in 1966, Rhonda born in 1969, and Robert born in June 1971. It was while Norma lived on Louisiana and Winnebago that Rhonda was conceived. Robert still resided at 2307 South Thirteenth Street. Rhonda was born in a hospital on June 29, 1969. In the interim between the birth of Rhonda and October, 1970, Norma moved to 3936 Russell. During this time, Robert spent a "lot of nights" with Norma, while still retaining his "house" on Thirteenth Street. He had most of his clothes at "home" but had several outfits at Norma's.

In June, 1970, Robert remarried Wilda Inez (Chris) Hunter ¹, and bought a home in the 3600 block of Oregon. They lived together for about three months until approximately September, with their son of the previous marriage.

Then in about October, 1970, Robert went to live with Norma on Russell Avenue "permanently". After Robert moved from Oregon to Russell, he testified that he did not keep "any other place (he) might call a residence." From October, 1970, except for about three or four weeks prior to April, 1972, when Robert went to Patricia Thornberg's (his younger sister), at 311 Eichelberger, he lived with Norma and was still living with her at another address at the time of trial held in March, 1976.

In April, 1972, Robert obtained a "Family Combination Automobile Policy" effective April 27, 1972 to April 27, 1973. At the time of taking out the policy, Robert gave as a mailing address 7618 Tennessee and as a residential address 311 Eichelberger apparently the address of his sister, Patricia.

Under Part IV of the policy "Family Protection Coverage", the insurance company agreed:

"To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . including death resulting therefrom . . . sustained by the insured caused by accident and arising out of ownership, . . . or use of such uninsured automobile, . . .."

Under the "Definitions" in Part IV, "insured" means:

"(a) the named insured and any relative; . . . ." and "Relative" is defined in Part I to mean:

"a relative of the named insured who is a resident of the same household."

The policy was in force on January 6, 1973. On that fateful day, Rhonda Lynn who was now three and one-half years old was hit by an automobile driven by one Virgil Earls, the uninsured motorist between 39th Street and Lawrence in St. Louis. ² An eyewitness, Jack Regh, saw the accident. He saw the vehicle strike the child. Earls was traveling about twenty-five miles per hour; he did not slow down, or sound any warning or swerve. Mr. Regh flagged Earls down. Robert Joe Cobb came out of "his house and put a blanket" over the child. An ambulance was called and Robert went with the child in the ambulance. Mr. Regh saw Robert "maybe several times . . .."

Rhonda was taken to the hospital and died on January 18, 1973.

Within a few days, January 25, 1973, the appellant insurance company received a notice from a firm of attorneys concerning Rhonda's death. An investigation was made by representatives of the company and some letters were written concerning the investigation. One letter dated March 13, 1973, indicated that ". . . I believe we have to prove, even though Robert Cobb admits to being the father of the deceased, he was married to Chris at that time, and contributed to her support, which should not be too difficult . . .. At the moment things do not look too good . . .."

On April 9, 1974, a petition was filed by Robert Joe Cobb and Norma House for damages against the defendant. An amended petition was later filed in two counts. Count I sought damages from Virgil Earls and Count II sought damages against State Security Insurance Company for $10,000. Because Virgil Earls was never served, he was dismissed from the cause. Trial commenced in March, 1976.

At trial the following additional facts were adduced.

From and after October, 1970, Robert lived with Norma Jean. Several witnesses testified at trial relating to their living together on Russell, and several witnesses testified as to Robert's acknowledgement that Rhonda Lynn was his child. Norma's sister testified that prior to Rhonda's birth when Robert and Norma were living together Robert acknowledged several times that he was the father of the child; that Robert visited Norma and the child in the hospital, and that he was living with Norma when Rhonda was brought home from the hospital. Witnesses indicated that Rhonda referred to Robert as "Daddy", and that he played with the children, disciplined Rhonda, etc. When Rhonda was hit by the automobile, the witness, Mr. Regh stated that Robert came out of the Russell house and put a blanket over the child and went to the hospital. Some days before the accident Regh saw Robert on the porch on Russell.

Joseph Eveland, a long time friend of Robert, testified that prior to Rhonda's birth Robert acknowledged that he was her father. He was present "many times" at the Russell house where Norma, Robert and Rhonda lived.

Robert's mother, Mrs. Prather, stated that Robert acknowledged to her that he was the father of Rhonda, "many times" prior to birth. She was present when Robert "(gave) directions" to Rhonda, that Rhonda called Robert "Daddy".

Norma's daughter, Donna, by her former husband testified that she knew Robert since she was eight years old when Robert "started going" with Norma. She recalled that Robert went to the hospital at Rhonda's birth, that he lived on Russell, that after he left Chris, Donna helped him move to Russell in 1970; she also stated that Robert acknowledged the paternity of Rhonda, before and after Rhonda's birth. According to Donna, Robert played with Rhonda, gave her "love and affection" and "discipline(d)" her.

In their testimony, Robert and Norma corroborated many of the above facts. In open court he acknowledged that he was the father of Rhonda Lynn, he testified he "supported" her, and "contributed" all he could, gave love and affection to her, and that Rhonda called him "Daddy". After he moved to Russell he had no other "residence". He acknowledged that his name did not appear on Rhonda's birth or death certificates but indicated, as to the birth certificate that the hospital would not permit it. While the funeral bill had...