Engebretson v. Austvold
| Decision Date | 12 March 1937 |
| Docket Number | 31057. |
| Citation | 271 N.W. 809,199 Minn. 399 |
| Parties | ENGEBRETSON v. AUSTVOLD (STATE FARM MUT. AUTOMOBILE INS. CO., Garnishee). |
| Court | Minnesota Supreme Court |
Appeal from District Court, Pope County; S. A. Flaherty, Judge.
Action by Julia Engebretson against Evelyn Austvold, wherein the State Farm Mutual Automobile Insurance Company was garnished by plaintiff. From an order denying its alternative motion for amended findings or for a new trial, for garnishee appeals.
Reversed with directions.
Insured who had been living with her parents after returning from foreign state following death of her husband, held to be a member of same household as her mother, so as to preclude mother's recovery under automobile liability policy which excluded liability for injury to persons in same household as insured.
Syllabus by the Court .
On facts stated in the opinion, held as matter of law that defendant was a member of plaintiff's household within the meaning of clause in insurance policy excluding liability in such event.
Murphy, Johnson & Winter, of Wheaton, for appellant.
Frank J. Zima, of Glenwood, for respondent Austvold.
John I. Davis, of Benson, and Joe McNitt, of Glenwood, for respondent Engebretson.
Plaintiff, mother of defendant, claiming to have been injured by her daughter's negligence in the operation of an automobile, sued defendant, and after trial without a jury, got judgment for $2,500 and costs. State Farm Mutual Automobile Insurance Co., of Bloomington, Ill., had insured defendant against public liability. For the reason hereinafter considered, among others, it declined to defend the action brought by plaintiff. Garnished by plaintiff on account of its supposed indebtedness to defendant, the issue of its liability was tried, the decision went against it, and the garnishee appeals from the order denying its alternative motion for amended findings or for a new trial.
The insurance policy issued by the garnishee excluded liability for injury to ‘ persons in the same household as the assured [defendant], or those in the service or employment of the assured, whether occurring during the hours of such service or employment or not.’
Condition precedent to the decision was the finding of fact that ‘ there is no evidence to sustain the claim of said garnishee that at the time of said accident [April 23, 1933] * * * the said plaintiff was a person in the sale household as the said defendant.’ The only basis for that finding, assigned in argument for respondent here or disclosed by our own search of the record, is that at the trial, as a witness in her own behalf, and under the lash of self interest, defendant testified that she did not ‘ intend to make the home’ of her father and mother the place of her own ‘ residence’ or to become ‘ a member of the household.’ She also testified that during the summer of 1933, she intended to go back to Montana.
Defendant Evelyn is one of nine children, born and raised on the farm home of her family near Glenwood. In June, 1931, she married Edwin Austvold and removed with him to Montana, where he had a responsible position with the State Agricultural College. Although residents of Montana during their married life there, the Austvolds had established no separate home of their own. Mr. Austvold met sudden and untimely death February 14, 1933. His remains were returned to Glenwood for interment. His widow, defendant Evelyn, immediately ceased to be a resident of Montana and resumed her residence in Minnesota. Of that there can be no question because she so declared at the time in solemn and unquivocal fashion.
To the probate court of Pope county she applied for appointment as special administratrix of the estate of her deceased husband. In her petition, she declared herself ‘ a resident of Glenwood Twp. in the county of Pope, State of Minnesota.’ That petition she verified personally February 25, 1933. Thereon she invoked and procured judicial action. Letters of special administration were issued to her, as a resident of Pope county, on that petition.
Under date of March 13, 1933, she applied to the secretary of state for an automobile license in her own name in which she declared: ‘ I reside in the County of Pope.’ What is more, she then had to ‘ affirm under oath’ that the family automobile was brought to Minnesota February 17, 1933, as of which date she came to Minnesota ‘ intending to remain here permanently.’
In September, 1933, defendant matriculated at the University of Minnesota, giving her home address and legal residence as Glenwood, in Pope county. December 19, 1933, she...
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