Dressler v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 20 July 1963
• Citation: 376 S.W.2d 700,52 Tenn.App. 514
• Parties: Esther DRESSLER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. William DRESSLER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
• Court: Tennessee Court of Appeals

Page 700

376 S.W.2d 700

52 Tenn.App. 514

Esther DRESSLER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

William DRESSLER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

Court of Appeals of Tennessee, Eastern Section.

July 20, 1963 Certiorari Denied by Supreme Court Dec. 5, 1963.

Roberts, Weill & Ellis, Chattanooga, for appellants Esther and William Dressler.

Spears, Moore, Ribman & Williams, Chattanooga, for appellee State Farm Mutual Automobile Ins. Co.

McAMIS, Presiding Judge.

Mr. and Mrs. William Dressler obtained separate judgments at law, in the amount of $7500.00 in each case, against Mrs. Gail Dressler as a result of personal injuries sustained by Mrs. Dressler while riding in an automobile owned by her son, Dr. Stanley Dressler, and operated by his wife, Mrs. Gail Dressler. Mrs. Gail Dressler was an additional insured under defendant's public liability policy, issued to Dr. Dressler, and these consolidated suits were insituted to recover the amount of the two judgments.

The insuring clause obligates the insurer:

'To pay all damages which the insured shall become legally obligated to pay because of bodily injury sustained by other persons, and caused by accident arising out of the ownership, maintenance or use, including loading or unloading of the automobile.'

Complainants have appealed from the Chancellor's decree holding the insurer exempt from liability under a subsequent policy provision that the insurance afforded by the policy does not apply:

'To bodily injury to the insured or any member of the family of the insured residing in the same household as the insured.'

Complainants have assigned as error the Chancellor's holding that complainants were members of Dr. Stanley Dressler's family and residing in the same household with him on June 27, 1959, the date of the accident in which complainant, Mrs. William Dressler, was injured.

Since 1949, complainants have owned a two-story residence at 2412 East Fourth Street in Chattanooga. A number of years prior to the accident this residence was converted into three apartments, the one on the ground floor consisting of six rooms, including a kitchen. The second floor consisted of a three-room apartment and a one-room apartment. The three-room apartment was rented and occupied by strangers and is not here involved. The one-room apartment with an attached bath room was furnished with two beds and a refrigerator but no cook stove. Each apartment had a separate entrance through a hallway.

On December 15, 1958, Mr. and Mrs. William Dressler were living in the large down-stairs apartment with their son Ronald who was 20 years of age. In that month their son, Dr. Stanley Dreeler, graduated from medical school in Memphis where he had been living with his wife and their infant child. Upon graduation, Dr. Dressler moved to Chattanooga to accept an internship at Erlanger Hospital.

Although Dr. Dressler and his wife later looked for other living quarters they apparently moved to Chattanooga without attempting in advance to find an apartment, expecting to live with the elder Dresslers and their son Ronald who moved out of the down-stairs apartment and into the one-room up-stairs apartment. Dr. Dressler, his wife and child then moved into the large apartment. The elder Mr. Dressler was away from home most of the time but when he was at home Ronald slept in the downstairs apartment.

The Chancellor found:

'Mrs. Stanley Dressler and Mrs. William Dressler planned the cooking together and shared the household food and maid expenses. Except for sleeping, the downstairs apartment was always open to and used by Mrs. William Dressler as though it were her home. At no time prior to the accident had Dr. Dressler actually rented other quarters, though he was on the lookout for a suitable apartment. * * * The two Dressler women planned and cooked the meals that the members of the family ate. Except for sleeping, they enjoyed in common for family purposes the downstairs apartment.' The Chancellor also found that this arrangement was regarded by all of the parties as temporary.

There is no assignment of error directed to these findings and we concur therein.

We do not have a case in Tennessee directly in point. Complainants rely upon the unreported decision of this Court in State Farm Mutual Automobile Insurance Company v. Zimmerman (Eastern Section 1960), where the exclusionary clause here involved was held not applicable and the insurer liable. In that case Zimmerman, the insured, and the Gants occupied the same house until the Gants could move into a...