Goens v. Arinder

• Decision Date: 09 March 1964
• Docket Number: No. 42838,42838
• Citation: 248 Miss. 806,161 So.2d 509
• Parties: Elwood GOENS et al. v. H. C. ARINDER et al.
• Court: Mississippi Supreme Court

Page 509

161 So.2d 509

248 Miss. 806

Elwood GOENS et al. v. H. C. ARINDER et al.

No. 42838.

Supreme Court of Mississippi.

March 9, 1964.

William V. Murry, Hattiesburg, for appellant.

Lipscomb & Barksdale, Jackson, for appellee.

McELROY, Justice:

This case originated in the Circuit Court of Marion County, Mississippi. Plaintiffs filed their declaration against Mr. and Mrs. H. C. Arinder and their daughter, Sylvia, under the wrongful death statute seeking damages for the wrongful death of Donald Ray Goens, 13-year-old son of plaintiffs, Mr. and Mrs. Elwood Goens.

The plaintiffs dismissed as to Mr. and Mrs. H. C. Arinder and proceeded to trial against Sylvia Arinder, sole defendant. The matter was presented to the trial judge without a jury, and he found for plaintiffs in the amount of $10,000. No appeal was taken and judgment became final.

The defendant being insolvent, a writ of garnishment was sued out against State Farm Mutual Automobile Insurance Company, carrier of the insurance on the automobile of H. C. Arinder. Interrogatories were submitted to the garnishee defendant, who answered admitting coverage of the Arinder vehicle but denying liability, alleging that the vehicle involved in the accident belonged to W. E. Stogner, son-in-law of Mr. and Mrs. H. C. Arinder, a relative and member of the Arinder household within the exclusion contained in the policy relating to non-owned vehicles.

The trial court found for the garnishee defendant.

On October 20, 1958 Mrs. W. E. Stogner had asked her young sister Sylvia to drive the Stogner automobile down the highway (U. S. 98) to a store about one-half mile away and purchase supplies for a birthday party she was giving for her little daughter. On the way Sylvia struck and killed Donald Ray Goens.

At the time of the tragedy the H. C. Arinder family lived on U. S. Highway 98, approximately six miles northeast of Columbia, Marion County, Mississippi, and Mr. and Mrs. Stogner, their daughter and son-in-law, were building a home for themselves a short distance down the highway. At this time the new house had its roof on and walls up, and the Stogners had moved some of their furniture into it. Mr. Stogner was a member of an oil well drilling crew and his father-in-law, H. C. Arinder, the insured, was the driller. His job in Louisiana was completed, and they began a new drilling operation in Smith County, Mississippi. Mr. Stogner and his family spent some time in the home of his parents near Tylertown, Mississippi, but since their new home was nearing completion they set up their bed in one of the bedrooms of the Arinder home so Mr. Stogner could have more time after his regular job to put the finishing touches on the new house. At this time Mrs. Stogner was pregnant and unable to do all of her work, and by being in her parents' home her mother and sister assisted her. The Stogners and Arinders each bought groceries as needed, used the same kitchen, and when convenient took their meals together. Each used their own washing machine and their own automobile. The Arinder family never used the Stogner automobile except at the request of Mrs. Stogner, and then to perform a mission for her. It was not available to the Arinder household to be used at will or for regular use.

Appellee answered the writ of garnishment denying liability, and in answer to interrogatories propounded by appellant predicated its denial upon its assumption that the Stogner automobile was furnished to the named insured, H. C. Arinder, and/or a relative for regular use; and the further assumption that Mr. and Mrs. W. E. Stogner and their small daughter were residents of the Arinder household.

Appellee does not deny the existence of a valid judgment against Sylvia Arinder, daughter of assured, who at the time of the tragedy was a member of her father's household and a resident thereof. Appellee admitted that the Arinder automobile was covered by its Policy #311 236C13-24 at the time of the fatal accident, and in this connection appellee in its answer to Interrogatory No. 4 quoted from the policy as follows:

'INSURING AGREEMENT II NON-OWNED AUTOMOBILES

'Such insurance as is afforded by this policy under coverages A, B, C, D, D-50, F, G, H and M, with respect to the automobile, applies to the use of a non-owned automobile by the named insured or a relative, and any other person or organization legally responsible for the use by the named insured or relative of an automobile not owned or hired by such other person or organization.

Insuring Agreement II does not apply:

(1) to a non-owned automobile (a) registered in the name of the named insured or a relative, (b) hired by or furnished to the named insured or a relative for regular use, or (c) while used in the business or occupation of such named insured or relative except a private passenger automobile operated or occupied by such named insured, relative, or by his private chauffeur or domestic servant; * * *'

Under 'DEFINITIONS--INSURING AGREEMENTS I AND II', a relative is defined as 'a relative of the named insured who is a resident of the same household.'

Appellee relies upon the exclusions set out in the policy to support its contention of no coverage. However, we have concluded that the above quoted exclusion clause does not exclude coverage of appellants under the State Farm liability policy; and that the policy covered the Stogner car. The automobile being driven by the judgment debtor was a non-owned automobile. But under clause (1)(b) the evidence shows that it was not furnished to 'a relative for regular use.' Under the definitions clause, Mrs. Stogner was not a 'resident of the same household,' but only temporarily sojourning or visiting there pending completion of her new home. The pertinent evidence on this issue is examined subsequently in this opinion, and reflects and supports that conclusion.

The word 'resident' means one having more than physical presence. The transient visit of a person for a time to a place does not make him or her a resident while there. The word 'resident' imports a fixed abode for the time being, as distinguished from a place of temporary abode or a temporary sojourn. 77 C.J.S., pp. 305-307. In the instant case the Stogners were building a home into which they had already moved part of their furniture, and were simply visiting or sojourning for the time being in the Arinder house, until Mrs. Stogner could have a baby and their house was completed. Hence she was not a resident of the Arinder household within the meaning of exclusion clause (1)(b). State Farm's contention to this effect is contradicted by the facts.

Furthermore, exclusion (1)(a) does not operate to preclude coverage under the policy. The definition clause similarly limits the meaning of the word 'relative' in this case to 'resident of the same household.' And the above observations as to the word 'resident' are applicable to preclude application of this exclusion. Hence the insurer's argument that this latter exclusion applies also is without merit.

The record discloses the following facts about the Arinder household. Mr. Arinder had two daughters. Sylvia, sixteen, lived in the home and was provided for and sent to school by her father. Calva Mae, the older daughter, had been married since 1955 to William Earl Stogner and had one child, and she and her family were staying in the Arinder home temporarily while their new house was being built. She and her husband had set up housekeeping about one month after their marriage, and they had lived in several places, including Mr. Stogner's father's home. At the time of the accident they were building a house about 200 yards from the Arinders' house. They had been making numerous trips from the Stogners' home, about 16 miles away, to the new house to work on it. At the suggestion of Mr. Arinder, the Stogners moved into the Arinder home, so Mr. Stogner and Mr. Arinder would have more time to work on the house and so Calva Mae, who was pregnant, would have assistance from her mother and sister in caring for her family. They moved their bed, washing machine and refrigerator into the Arinders' house, and other articles of furniture such as stove, dinette, and bed, and clothing into the partially built new home. The Stogners paid all their own expenses, performed their own household duties, and cooked their own meals. Mrs. Stogner spent most of her time during the day at the new house directing workmen. The Stogners were on their own, going and coming as they wished. Sylvia had driven the Stogner car two or three times before the date of the accident, but only with the Stogners' permission, and the Stogner car was never at the disposal of the Arinder family. Either the Arinder automobile or Stogner automobile was left at the Arinder home at all times, but only because of Mrs. Stogner's condition and to be used in the event she needed to get to a doctor. Both families considered the Stogners' stay in the Arinder home temporary. The lower court held that the Stogners constituted a separate family, and just happened to be living in the same house as the Arinders.

We now examine whether, under the provisions of the policy, relative Mrs. Stogner was at the time of the accident a member of the insured's household within the purpose and purview of the policy, which defines a relative as 'a relative of the named insured who is a resident of the same household.' Our conclusion that Mrs. Stogner was not a 'resident' of the Arinder household within the terms of the exclusion decides this case, but the authorities defining a 'household' are pertinent to describing further a 'resident' and to construing the meaning of the exclusion.

The only relevant case in Mississippi other than Caldwell v. Hartford Acc. & Indem. Co., 1962, Miss., 160 So.2d 209, is Fleming v. Travelers' Ins. Co., 206 Miss. 284, 39 So.2d 885. Fleming was separated from his wife and was living in New Orleans with another...