Holloway v. State Farm Mut. Auto. Ins. Co., 4 Div. 91

• Decision Date: 04 April 1963
• Docket Number: 4 Div. 91
• Citation: 275 Ala. 41,151 So.2d 774
• Court: Alabama Supreme Court
• Parties: Ouida I. HOLLOWAY, Adm'x, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

Page 774

151 So.2d 774

275 Ala. 41

Ouida I. HOLLOWAY, Adm'x, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

4 Div. 91.

Supreme Court of Alabama.

April 4, 1963.

Lee & McInish, Dothan, for appellant.

J. Robt. Ramsey, Dothan, for appellee.

PER CURIAM.

Appellant, acting as the administratrix of the estate of Mrs. Ada Drew, deceased, filed suit in the circuit court of Houston County, Equity Division, against Mrs. J. H. Glover, who was the sister of deceased, alleging that Mrs. Drew received injuries in an automobile accident on March 15, 1960, from which she later died and for which, according to the complaint, Mrs. Glover was legally liable.

Appellee, the liability insurance carrier of Mrs. Glover, filed its complaint in the equity division of the circuit court of Houston County, making Mrs. Glover and appellant parties respondent, seeking a declaratory judgment on its contractual obligation vel non under its policy to defend this suit filed by the administratrix; and also, to determine whether or not Mrs. Glover is entitled to protection under the terms of the policy against the claims of the administratrix arising out of the alleged accident.

The trial judge, on submission of the cause on testimony taken before a commissioner, rendered a decree absolving complainant (appellee here) from any liability to defend the suit and also from any liability for 'any claims arising out of the accident which occurred on or about March 15, 1960, resulting in the death of Mrs. Ada Drew, for which suit has been brought against Mrs. J. H. Glover by Ouida I. Holloway, etc., in the Circuit Court of Houston County, Alabama, at law * * *.'

Appellant, in her fiduciary capacity, complains here on appeal that the trial judge erred in rendering its decree, and seeks its reversal.

The policy contains an exclusionary provision, as follows:

'This insurance does not apply under: * * * 'g', coverage A, (1) to any obligation for which the insured or his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law: or (2) to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured.' [Emphasis supplied.]

The pivotal and sole question before this court, as was before the trial court, is whether or not, under the evidence and the law applicable thereto, the deceased was a member of the family of the insured, Mrs. Glover, residing in the same household as the insured at the time of the accident causing her death.

The facts pertinent to a judicial determination of the applicability of the foregoing exclusionary clause and not essentially in dispute. Mrs. Glover and the deceased were sisters of mature age. The husband of Mrs. Drew died in 1919, after which she went back to the home of her father and mother and there remained until her untimely death from injuries inflicted in the accident. After the parents died, Mrs. Glover, sometime soon after or during 1949, purchased the homestead of the parents from the heirs at law. She, a widow without children, moved into the home where she and her sister, Mrs. Drew, roomed together and equally shared the grocery expense. Mrs. Drew paid some on the utilities service. Each bore her own personal expenses. Mr. Drew had some money which was supplemented by a monthly welfare check of $58. They cooked and ate together. Mrs. Glover furnished Mrs. Drew a place to live in her home free of rent. Each preserved her own personal independence and was not under control of the other. We observe parenthetically here that there is no assignment of error by appellant challenging the evidence of Mrs. Glover above set forth.

The Court of Appeals of Alabama in the case of Shinn v. Family Reserve Ins. Co., 33 Ala.App. 281, 33 So.2d 741(3), certiorari denied, 250 Ala. 194, 33 So.2d 743, observed that in the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability, and to impose whatever conditions they please upon their obligations not inconsistent with public policy; and the courts have no right to add anything to their contracts, or to take anything from them. 14 R.C.L. pp. 928, 929.

Attention was called in the above case to the case of Life & Casualty Ins. Co. of Tennessee v. Tollison, 223 Ala. 78, 134 So. 805, 807, wherein it approved the rule that insurance contracts may be, and often are, made with very limited coverage, a premium fixed on careful calculation of the hazards assumed; and they should be enforced, not on a new or enlarged contract for the parties.

We further approved an observation of the Court of Appeals in the case of National Life & Accident Ins. Co. v. Davies, 34 Ala.App. 290, 39 So.2d 697(2), certiorari denied 252 Ala. 107, 39 So.2d 703, that:

'The provisions of a policy of instant concern are not to be given a narrow or a technical interpretation which would defeat the intention of the parties, but rather a rational and practical construction.'

In ascertaining intent of the parties, language of the policy will be given its common interpretation, and only clauses which are uncertain, will be construed favorably to the insured. The Praetorians v. Hicks, 234 Ala. 451, 175 So. 258(3).

In Franklin Life Ins. Co. v. Lewis, 36 Ala.App. 313, 55 So.2d 518(4), the court observed:

'* * * 'It is the duty of the courts to take the words of an insurance policy as they are found in it, and as persons with usual and ordinary understanding would construe them when used to express the purpose for which they were employed * * *.' Equitable Life Assurance Society of U. S. v. Adams, 259 Ky. 726, 83 S.W.2d 461, 464.'

We are unable to find, nor has counsel for either the appellant or appellee cited us, any Alabama case with facts parallel or on all fours with those here under consideration. Many cases have been diceded in the several states that depend on different purposes of the definition of 'family' and 'household'.

We think, as did the trial court, that the case of Tomlyanovich v. Tomlyanovich, 239 Minn. 250, 58 N.W.2d 855, 50 A.L.R.2d 108, contains logic and reasoning, differentiations and conclusion, that are applicable to the case at bar and should in its essentials be followed by this court as decisive of this appeal.

A summary of the decision is that a judgment for damages sustained in an automobile accident having been recovered against the owner and operator thereof, garnishment proceedings were brought by the judgment creditor against the insurer, who defended on the ground, in addition to another, of exemption from coverage under an exclusionary clause with respect to an injury to 'any member of the family of the insured residing in the same household as the insured.' It appeared that the injured person was an adult brother of the insured, both of whom were unmarried and lived in the family home of their father, making contributions to their parents for board and room. The court found that the exclusionary clause precluded coverage of liability for injury to the insured's brother. The exclusionary clause there is the same as the one now before us on this appeal.

The opinion in the case of Tomlyanovich v. Tomlyanovich, supra, is quite elaborate in its treatment of the exclusionary clause, which, as we have said, is identical with the one here under consideration. A transcription of its taxt into this opinion would be very informative, but we feel that such transcription would unduly lengthen this opinion beyond practical necessity. The opinion contains an observation which, we think, is the crux of the case and supports the view we take of the case at bar. The observation is...