Ferguson v. Employers Mut. Cas. Co.

• Decision Date: 26 May 1970
• Docket Number: No. 19057,19057
• Citation: 254 S.C. 235,174 S.E.2d 768
• Court: South Carolina Supreme Court
• Parties: Frank FERGUSON, Respondent, v. EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant.

Page 768

174 S.E.2d 768

254 S.C. 235

Frank FERGUSON, Respondent, v. EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant.

No. 19057.

Supreme Court of South Carolina.

May 26, 1970.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellant.

Kenneth C. Porter, Greenville, for respondent.

MOSS, Chief Justice.

It appears from the record that C. C. Corbett, Sr., was the owner of a Ford pickup truck and that on August 1, 1967, the said truck, while being operated by one David Watson, his employee, collided with a truck owned by one Frank Ferguson, the respondent herein. Thereafter, the said respondent obtained a default judgment on November 11, 1967, against C. C. Corbett and David Watson in the amount of $7,000.00 for property damage sustained.

The present action was commenced by the respondent against Employers Mutual Casualty Company, the appellant herein, to enforce the payment of said judgment to the extent of $5,000.00, under a policy of liability insurance issued by it on April 21, 1967, to the said C. C. Corbett, Sr., pursuant to the Assigned Risk Plan of the State of North Carolina.

The appellant, by answer, denied that the policy provided coverage and alleged that such had been rescinded as of the date of its inception. As a further defense, the appellant alleged that misrepresentations were made in the application by the insured as to the state of licensing and registering and place of principal garaging as to the truck covered in said policy, which were material to the risk and willfully made. As a further defense, the appellant alleged that the policy was issued pursuant to the Assigned Risk Plan of the State of North Carolina, and that the insured was not a resident of North Carolina at the time of the application for insurance and the Plan was not available to him. The appellant demands that the complaint of the respondent be dismissed and that the court rescind and declare null and void the contract of insurance.

By agreement, this case was tried before The Honorable James H. Price, Jr., Judge of the Greenville County Court, without a jury. After hearing the testimony, the trial judge filed an order holding that the policy issued by the appellant was in full force and effect at the time of the collision between the trucks of the respondent and C. C. Corbett, Sr., and that the policy in question provided coverage to the said Corbett. This appeal followed.

The first question for decision is whether the policy in question was void Ab initio for the reason that it was issued to one not a resident of North Carolina and afforded coverage to a vehicle not registered and garaged in North Carolina; hence, not entitled to coverage under the North Carolina Assigned Risk Plan. The appellant urges that it was error for the trial judge to find that C. C. Corbett, Sr., was a resident of North Carolina at the time of the issuance of its policy.

The North Carolina Assigned Risk Plan was set up under the provisions of Section 20--279.34 of the General Statutes of said State. This section provides Inter alia, as follows:

'The provisions of this article relevant to assignment of risks shall be available to nonresidents who are unable to obtain a motor vehicle liability insurance policy with respect only to motor vehicles registered and used in this State.'

The question of a person's place of residence is largely one of intent to be determined under the facts and circumstances of each case. The act and intent as to domicile, not the duration of the residence, are the determining factors. Miller v. Miller, 248 S.C. 125, 149 S.E.2d 336. The finding of the trial judge is conclusive thereon unless there is a total failure of testimony to support it. St. Clair v. St. Clair, 175 S.C. 83, 178 S.E. 493. In the case of Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284, it was held:

'To effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last acquired residence a (permanent) home.'

The insured testified that he was a resident of Tabor City, North Carolina, during the first few months of 1967, and at the time of the application for and the issuance of the liability policy covering the truck in question. He said he maintained an office in Tabor City for the purpose of selling canned vegetables, fruit and fresh produce. He had maintained such office for twelve or fourteen years prior to the issuance of the policy. In 1963 he purchased a peach farm in Spartanburg County, South Carolina, and during the years 1964--1966 he and his wife lived in a rented house near the farm and supervised the operation thereof during the peach growing season and on other occasions during the years. He testified that he went on business trips which involved a few days or a week and at the end of such trips he returned to the house in Spartanburg County in which he and his wife were living. He further stated in his testimony that he spent his time between Spartanburg, South Carolina, and Tabor City, North Carolina, there living in the home of his daughter where a room was kept for his occupancy. He further testified that he had taxable property in both the states of North Carolina and South Carolina. He admitted that a cannery owned by him was destroyed by fire in 1965 and was never rebuilt. This cannery was located just across the line from Tabor City...