Jamestown Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 282

• Decision Date: 04 February 1966
• Docket Number: No. 282,282
• Citation: 146 S.E.2d 410,266 N.C. 430
• Parties: JAMESTOWN MUTUAL INSURANCE COMPANY, a corporation, v. NATIONWIDE MUTUAL INSURANCE COMPANY, a corporation, William Clark Hamrick and Mrs. Willie Bowles Lovelace Defendants, and Frances Sisk Holland, Dale Steven Lovelace and Edwin Eli Lovelace, Additional Defendants.
• Court: North Carolina Supreme Court

Page 410

146 S.E.2d 410

266 N.C. 430

JAMESTOWN MUTUAL INSURANCE COMPANY, a corporation, v. NATIONWIDE MUTUAL INSURANCE COMPANY, a corporation, William

Clark Hamrick and Mrs. Willie Bowles Lovelace Defendants,

and

Frances Sisk Holland, Dale Steven Lovelace and Edwin Eli

Lovelace, Additional Defendants.

No. 282.

Supreme Court of North Carolina.

Feb. 4, 1966.

Hamrick & Hamrick, by J. Nat Hamrick, Rutherfordton, Joyner & Howison, by R. C. Howison, Jr., Raleigh, for defendant appellants Frances Sisk Holland, Dale Steven Lovelace, and Edwin Eli Lovelace.

Craighill, Rendleman & Clarkson, by Hugh B. Campbell, Jr., Charlotte, for plaintiff appellee.

LAKE, Justice.

We have considered each of the exceptions of the respective defendants to findings of fact made by the court. There is ample evidence to support each of these findings. They are, therefore, conclusive on appeal. Mitchell v. Barfield, 232 N.C. 325, 59 S.E.2d 810; First National Distributing Corp. v. Searvell, 205 N.C. 359, 171 S.E. 354.

Likewise, there was no error in the refusal of the court to make the findings of fact tendered by Nationwide. Insofar as these differ from the findings made by the court, the proposed findings are not material and, as to each of the proposed findings which do differ somewhat from the findings made by the court, there is conflicting evidence and the court's determination of the fact is binding on appeal.

By undertaking the defense of the actions brought and the other claims made against William Clark Hamrick, the plaintiff did not admit or represent that the policy issued by it afforded insurance coverage to him with reference to this collision. It is not thereby estopped or barred to assert the defenses which it raises in this action. It undertook such defense after Nationwide had denied liability under its policy and after giving full notice to William Clark Hamrick and to Nationwide of its reservation of all of its rights and defenses and of its denial of any liability upon it by virtue of its policy issued to Tedder Motor Company.

We come, therefore, to the two questions: (1) At the time of the collision, was William Clark Hamrick 'a resident of the same household' with his father, W. F. Hamrick, within the meaning of the Nationwide policy? (2) At the time of the collision, was William Clark Hamrick using the automobile owned by the Tedder Motor Company 'in the automobile business' within the meaning of the Nationwide policy?

Insurance policies must be given a reasonable interpretation and where there is no ambiguity they are to be construed according to their terms. Huffman v. Occidental Life Insurance Co., 264 N.C. 335, 141 S.E.2d 496. Where there is ambiguity and the policy provision is susceptible of two interpretations, of which one imposes liability upon the company and the other does not, the provision will be construed in favor of coverage and against the company. Mills v. State Life & Health Insurance Co., 261 N.C. 546, 135 S.E.2d 586.

The words 'resident,' 'residing' and 'residence' are in common usage and are found frequently in statutes, contracts and other documents of a legal or business nature. They have, however, no precise, technical and fixed meaning applicable to all cases. As was said by Higgins, J., in Barker v. Iowa Mut. Insurance Co., 241 N.C. 397, 399, 85 S.E.2d 305, 306:

'Residence has been variously defined by this Court. The definitions vary according to the purposes of the several statutes referring to residence and the objects to be accomplished by them. Definitions include 'a place of abode for more than a temporary period of time;' in other cases the word residence is construed to mean 'domicile,' signifying a permanent and established home. The definitions of residence range all the way between these extremes.'

Similarly, Ervin, J. said, in Sheffield v. Walker, 231 N.C. 556, 58 S.E.2d 356:

'[T]he word 'residence' * * * has many shades of meaning, ranging all the way from mere temporary presence to the most permanent abode. * * *

'Residence' is sometimes synonymous with 'domicile.' But when these words are accurately and precisely used, they are not convertible terms. Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307. 'Residence' simply indicates a person's actual place of abode, whether permanent or temporary; 'domicile' denotes a person's permanent dwelling place, to which, when absent, he has the intention of returning. * * *

'[U]nder these [registration] statutes 'residence' means something more than a mere physical presence in a place, and something less than a domicile. The term clearly imports a fixed abode for the time being.'

In Watson v. North Carolina R. R., 152 N.C. 215, 67 S.E. 502, Clark, C. J., speaking for the Court, said:

'The word 'residence' has, like the word 'fixtures,' different shades of meaning in the statutes * * * and even in the Constitution, according to its purpose and the context. * * *

'Probably the clearest definition is that in Barney v. Oelrichs, 138 U.S. 529, 11 S.Ct. 414, 34 L.Ed. 1037: 'Residence is dwelling in a place for some continuance of time and is not synonymous with 'domicile', but means a fixed and permanent abode or dwelling, as distinguished from a mere temporary locality of existence; and to entitle one to the character of a 'resident' there must be a settled, fixed abode, and an intention to remain permanently, or at least for some time, for business or other purposes.' To same effect Coleman v. Territory, 5 Okl. 201, 47 P. 1079. "Residence' indicates permanency of occupation as distinct from lodging or boarding or temporary occupation. 'Residence' indicates the place where a man has his fixed and permanent abode, and to which, whenever he is absent, he has the intention of returning."

Again, in Chitty v. Chitty, 118 N.C. 647, 24 S.E. 517, 32 L.R.A. 394, Faircloth, C. J., said:

"Residence' and 'domicile' are so nearly allied to each other in meaning that it is difficult sometimes to trace the shades of difference, although in some respects they are distinct; and the definitions of 'residence' are sometimes apparently conflicting, owing mainly to the nature of the subject with which the word is used, the purpose being always to give to it such meaning and force as will effectuate the intention of that particular statute. The great bulk of cases in the books are cases of statutory residence, as applied to the subjects of voting, eligibility to office, taxation, jurisdiction in divorce proceedings, probate and administrations, limitations, attachments, and the like cases. The word is frequently used in the sense of bodily presence in a place, sometimes, a mere temporary presence, and sometimes the most settled and permanent abode in a place, with all the shades of meaning between these extremes, and also with reference to the distinction between an actual and legal residence. So it seems entirely proper to consider its meaning in connection with the subject-matter and the purpose of the statute in which it is found, as well as the relation of the citizen to the subject matter.'

In 17A Am.Jur., Domicile, § 9, it is said:

"Residence' has many shades of meaning--from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more than mere physical presence, in which event intent is material. 'Residence,' as a legal term, is something more than the mere actual presence in a locality, even where it is not equivalent to domicile. * * *

'Any place of abode or dwelling place constitutes a residence, however temporary it may be, while the term 'domicile' relates rather to the legal residence of a person or his home in contemplation of law.'

In 77 C.J.S. Resident p. 305, it is said:

'The word 'resident' is in common usage, and many definitions of it are to be found in the decision. It is, nevertheless, difficult to give an exact, or even a satisfactory, definition, for the term is flexible, elastic, slippery, and somewhat ambiguous.'

When an insurance company, in drafting its policy of insurance, uses a 'slippery' word to mark out and designate...