Home Ins. Co. v. Pettit

• Decision Date: 16 June 1932
• Docket Number: 8 Div. 420.
• Citation: 225 Ala. 487,143 So. 839
• Parties: HOME INS. CO. v. PETTIT.
• Court: Alabama Supreme Court

143 So. 839

225 Ala. 487

HOME INS. CO. v. PETTIT.

8 Div. 420.

Supreme Court of Alabama

June 16, 1932

Rehearing Denied Oct. 27, 1932.

Appeal from Certiorari to Court of Appeals.

Petition of the Home Insurance Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Home Ins. Co. v. Marvin J. Pettit, 143 So. 837.

Writ awarded; reversed and remanded.

Eyster & Eyster, of Decatur, for appellant.

A. J Harris and Julian Harris, both of Decatur, for appellee.

KNIGHT J.

The appellee, plaintiff in the court below, brought suit in the circuit court, and recovered judgment against the Home Insurance Company on a contract of insurance, whereby the company had insured the plaintiff against loss or damage caused by theft, robbery, or pilferage of a certain automobile owned by the plaintiff.

From the judgment in favor of the plaintiff, the defendant company prosecuted its appeal to the Court of Appeals, which resulted in an affirmance, by that court, of the judgment of the circuit court. Petitioner, dissatisfied with the conclusion reached in the case by the Court of Appeals, has now applied to this court for writ of certiorari to review and revise the decision of the Court of Appeals. From the opinion now before this court, the Court of Appeals found, and so holds, that there is no dispute but that appellee owned the automobile which was stolen; that appellant had duly issued its policy of insurance covering any loss that appellee might have sustained by reason of the theft of the car, provided such loss was not excepted by a clause inserted in the policy; and "that all preliminary prerequisites to maintaining the suit had been complied with by the plaintiff prior to the institution of the suit."

In the circuit court, the jury were instructed to find the issue in favor of the plaintiff, if they believed all the evidence and the court refused a like instruction in favor of the defendant.

The contract of insurance protected the insured (plaintiff) against theft, robbery, and pilferage, "excepting by any person or persons in the assured's household or in the assured's service or employment, whether the theft robbery or pilferage occurs during the hourse of such service or employment or not."

With reference to the evidence offered on the trial, the opinion of the Court of Appeals states: "The undisputed testimony showed that appellee (assured) was in business for himself; that he spent a part of his time-'over week ends'-with his father, at his father's home; that said father owned the said home, residing there with his family; that appellee was a salesman, and that that occupation required his traveling around; that the automobile, at the time it was stolen, was kept by appellee, locked, etc., in a garage about 75 yards from where appellee was staying, at the home of his father; that upon the occasion of the theft of the car it was stolen by an uncle of appellee, who was temporarily in the home of appellee's father, as a guest of the family, sleeping, at nights, in the room of appellee; that appellee, in addition to his business as a salesman, was, at the time in question, engaged in the business of farming, there at his father's home, in association with his father; that appellee did not invite said uncle into the said home, and, for aught appearing, had no authority to ask him to leave."

The Court of Appeals then propounds the following question: "Was the uncle, referred to above, a person 'in the assured's household,' in the sense contemplated by the quoted portion of the policy?" This question, the Court of Appeals, in its opinion now before us, has answered in the negative. This conclusion we now are asked to review and revise.

It is the duty of this court, in exercising its supervisory jurisdiction, to review the conclusion of the Court of Appeals for the purpose of determining if that court has misapplied the law to the facts stated in its opinion, and which superinduced its ruling. Rochester-Hall Drug Co. v. Bowden, 218 Ala. 242, 118 So. 674; Lancaster v. State, 214 Ala. 2, 106 So. 617; Fairbanks-Morse & Co. v. Dees et al., 220 Ala. 41, 126 So. 624.

This court, in a number of cases heretofore decided, has held that, where the provisions of a policy of indemnity are reasonably susceptible of two constructions, consistent with the object of the obligation, one favorable to the assured, and the other favorable to the insurer, that will be adopted which is favorable to the assured. Illinois Auto. Ins. Exch. v. So. Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A. L. R. 734; Illinois Surety Co. v. Donaldson, 202 Ala. 183, 79 So. 667.

The case now under consideration is one of first impression in this court, and we have been unable to find any authoritative expression of this court directly in point. Nor have the labors of counsel for the respective parties brought to our view any authority in which a similar case has received the attention of other courts. The nearest case in point is that of Rydstrom v. Queen Ins. Co., 137 Md. 349, 112 A. 586, 14 A. L. R. 212, to which we shall have occasion presently to advert.

The word "household" has a well-known legal meaning. In 30 C.J. p. 474, the author speaking of the word "household" as a noun, gives this definition: "The definition of the Latin word 'familia,' a family living together; a number of persons dwelling under the same roof and composing a family; and by extension, all who are under one domestic head; persons who dwell together as a family; the place where one holds house, his home."

The word "family" and "household" are often used interchangeably. Pearre, Ex'r, v. Smith, 110 Md. 531, 73 A. 141. Webster defines the word "family" to be "a collective body of persons who live in one house and under one manager," and that meaning has been approved in many cases cited in the footnote found on page 866 of volume 12, Am. & Eng. Encycl Bouvier's Law Dictionary, vol. 2, p. 1186, says that in common parlance the family "consists of those who live under the same roof with the pater-familias," and also cites different cases as authority for the definition of the word family taken from Webster. In the case of People v. Tait, 261 Ill. 197, 103 N.E....