Hardware Mut. Cas. Co. v. Home Indem. Co.
Citation | 50 Cal.Rptr. 508,241 Cal.App.2d 303 |
Court | California Court of Appeals |
Decision Date | 01 April 1966 |
Parties | HARDWARE MUTUAL CASUALTY COMPANY, a corporation, Plaintiff and Appellant, v. HOME INDEMNITY COMPANY, a corporation, Thomas E. Gee, Marian Gee, Frederick Bowens, Lonnie Madden, Cornelius Jones, Defendants and Respondents. Civ. 22427. |
W. W. Kitchel, Oakland, for appellant, D. W. Brobst, Oakland, of counsel.
Hagar, Crosby & Rosson, Justin M. Roach, Jr., Oakland, for respondents The Home Indemnity Co., Thomas E. Gee and Marian Gee.
Joseph Landisman, Berkeley, for Frederick Bowens and Lonnie Madden.
Joseph W. Jay, Jr., Oakland, for Cornelius Jones.
In this action for declaratory relief we are called upon to determine whether defendant Frederick Bowens was an additional insured under the automobile policy issued by plaintiff to Bowens' aunt and uncle. As will appear we have concluded that he was and that the judgment of the trial court declaring plaintiff's obligations to Bowens under said policy should be affirmed.
The background facts are not in dispute. On June 25, 1961 Bowens, while driving a 1940 Chevrolet owned by his counsin Lonnie Madden, was involved in a collision in Berkeley with an automobile driven by Thomas Gee in which Marian Gee was riding. As a result of the collision, the Gees were injured.
At the time of the above accident there was in effect a family automobile policy issued by plaintiff Hardware Mutual Casualty Company (Hardware) on which Cornelius Jones and Carrie Etta Jones, his wife, were the named insureds. 1 Carrie Etta was Bowens' aunt. In pertinent part this policy provided in Part I thereof that among the persons insured were: '(b) With respect to a Non-owned automobile, * * * (2) any Relative, but only with respect to a private passenger automobile or trailer, provided the actual use thereof is with the Permission of the Owner; * * *' (Emphasis added.) In the 'Definitions' under Part I the policy stated that "relative' means a relative of the Named insured who is a Resident of the same household.' (Emphasis added.)
On June 25, 1962 Thomas and Marian Gee commenced an action in the Superior Court of Alameda County naming Bowens and Madden as defendants and seeking damages in the sum of $55,000. On February 1, 1963 said defendants tendered the defense of said action to Hardware upon the ground that Bowens was a relative and resident of the household of the named insured. Hardware refused the tender of defense and on April 1, 1963 commenced the instant action for declaratory relief which is the subject of the appeal at bench. 2
The trial court found, so far as is here pertinent, that Hardware's policy was in full force and effect at the time of the aforementioned accident; that the defense of the action filed by the Gees had been tendered and refused as stated above; that at all times material Bowens was a nephew of Carrie Etta Jones and as such was a relative of the named insured under the terms of the policy; that on June 25, 1961 Bowens was a resident of the household of Carrie Etta Jones and Cornelius Jones under the terms of the policy; and that at the time of the collision on said day the actual use by Bowens of Madden's Chevrolet was 'with the permission and consent' of Madden. The court concluded that Bowens was an additional insured under the policy and that Hardware was obligated to pay on behalf of Bowens all sums recoverable against him by the Gees and to defend and pay all costs incurred by Bowens in the defense of action filed by the Gees. Judgment was entered accordingly. This appeal followed. 3
Hardware contends before us that Bowens was not an additional insured under the terms of the policy because (1) he was not a resident of the household of Mr. and Mrs. Jones and (2) he was driving a nonowned automobile without the permission of the owner Madden. Basically these contentions present questions on the sufficiency of the evidence.
To resolve the first question we must first determine what is meant by the phrase 'resident of the same household.' On this subject, the parties take divergent positions. Hardware argues that the evidence must show that Bowens 'was a member of the family living at that home permanently as one unit headed by Cornelius Jones for the promotion of their mutual interest and social happiness.' Justification for this position is sought in Island v. Fireman's Fund Indemnity Co. (1947) 30 Cal.2d 541, 184 P.2d 153, 173 A.L.R. 896. Defendants 4 argue that the critical phrase has a broader meaning than merely 'member of the family' or 'member of the household.' As defendants see it, Hardware's policy merely requires that the relative reside in the household, not that he live there permanently as a member of the family. We agree.
Essentially, therefore, we face a two-fold problem. Initially, it is one of interpreting the particular provision of the insurance contract; secondarily, it is one of determining whether there is sufficient evidence in the record to make operative the policy provision as thus interpreted. On the first phase of the problem we are not unmindful of the following rule of construction set forth in Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 437--438, 296 P.2d 801, 809, 57 A.L.R.2d 914: (In accord: Southwestern Funding Corp. v. Motors Ins. Corp. (1963) 59 Cal.2d 91, 94, 28 Cal.Rptr. 161, 378 P.2d 361; Continental Cas. Co. v. Zurich Ins. Co. (1961) 57 Cal.2d 27, 32, 17 Cal.Rptr. 12, 366 P.2d 455; Exchange Cas. & Surety Co. v. Scott (1961) 56 Cal.2d 613, 619, 15 Cal.Rptr. 897, 364 P.2d 833; Prickett v. Royal Ins. Co. Ltd. (1961) 56 Cal.2d 234, 237, 14 Cal.Rptr. 675, 363 P.2d 907, 86 A.L.R.2d 711; Wildman v. Government Employees' Ins. Co. (1957) 48 Cal.2d 31, 35--36, 307 P.2d 359; Continental Cas. Co. v. Hartford Acc. & Indem. Co. (1963) 213 Cal.App.2d 78, 89, 28 Cal.Rptr. 606.) Under the foregoing principles we must therefore construe the policy provision under examination so as to give Bowens 'the benefit of any reasonable interpretation that may bring him within its coverage.' (Cal-Farm Ins. Co. v. Boisseranc (1957) 151 Cal.App.2d 775, 781, 312 P.2d 401, 404.) To paraphrase our observation in Cal-Farm, the precise question which we face in the instant case is whether or not under any reasonable interpretation of the policy Bowens was a resident of the household of Mr. and Mrs. Jones at the time of the accident.
In Moore Shipbuilding Corp. v. Industrial Acc. Com. (1921) 185 Cal. 200, 207, 196 P. 257, 259, 13 A.L.R. 676, it was said: (Emphasis added.)
In Island v. Fireman's Fund Indemnity Co., supra, 30 Cal.2d 541, 547, 184 P.2d 153, 156, 173 A.L.R. 896 the court said: The court thereafter quoted from Moore Shipbuilding the except set forth by us above.
In Cal-Fram Ins. Co. v. Boisseranc, supra, 151 Cal.App.2d 775, 312 P.2d 401, this court had occasion to interpret the terms 'resident' of the 'household' as used in a comprehensive liability policy extending coverage to such a person. It was there said: (P. 781, 312 P.2d p. 404, citing Inter alia both Moore Shipbuilding and Island.) We also pointed out in that case that (P. 782, 312 P.2d p. 405.) Finally, after a discussion of a number of cases, our opinion concluded: (P. 783, 312 P.2d p. 406.)
The evidence in the instant record viewed in the light most favorable to the respondents (Marshall...
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