Kelso v. Kelso
| Decision Date | 12 November 1957 |
| Docket Number | No. 45995,No. 1,45995,1 |
| Citation | 306 S.W.2d 534,71 A.L.R.2d 258 |
| Parties | Earl KELSO, Plaintiff-Appellant, v. William B. KELSO, Defendant, and State Farm Mutual Automobile Insurance Company, a Corporation, Garnishee- Respondent |
| Court | Missouri Supreme Court |
Bloodworth & Bloodworth, Poplar Bluff, for appellant.
Blanton & Blanton, Sikeston, for garnishee-respondent
HOLMAN, Commissioner.
On October 17, 1955, plaintiff, Earl Kelso, obtained a judgment for $15,000 against his brother, William B. Kelso, for injuries alleged to have been caused by William's negligence in the operation of his automobile. In the instant garnishment proceeding, plaintiff sought to collect said judgment from State Farm Mutual Automobile Insurance Company, garnishee. It was admitted by that insurer that it had issued a policy of liability insurance to William, which covered the car in question, but it refused to defend the suit filed against him and sought to escape payment of the resulting judgment (to the extent of $10,000 which was the maximum coverage applicable) because of policy provisions excluding coverage under certain conditions which will be hereinafter more fully discussed. A trial before the court (a jury being waived) resulted in a finding that the garnishee was not indebted to defendant and judgment was entered discharging said garnishee. Plaintiff has duly appealed.
Upon this appeal plaintiff, of course, contends that the garnishee is liable for the payment of the judgment (to the extent of coverage) because the policy was admittedly in force at the time of his injury. Garnishee, however, contends that liability is excluded by policy provisions (1) that the policy should not apply 'to the insured or any member of the family of the insured residing in the same household as the insured,' (2) that the automobile was declared to be 'fully owned by insured,' it being contended that plaintiff was a joint owner with defendant, and (3) that 'No action shall lie against the company unless * * * the amount of the insured's obligation to pay shall have been finally determined by judgment * * * after actual trial,' it being stated that the defendant defaulted in the instant case and hence there was no actual trial. In this connection it may be stated that the trial court did not file any memorandum indicating the grounds for its decision and we therefore do not know which one or more of the foregoing contentions formed the basis of its judgment.
Franck Bros., Inc., v. Rose, Mo.Sup., 301 S.W.2d 806, 811. In this connection it should perhaps be noted that while it may be stated generally that plaintiff had the burden of proving the facts essential to the garnishee's liability, in the instant case, where garnishee seeks to escape coverage solely because of policy exclusions, the burden was upon it to prove facts which would make those provisions applicable. Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615.
On the first point briefed our task is to determine whether plaintiff resided in the same household as the insured. The word 'household' has been generally defined as 'those who dwell under the same roof and compose a family.' Webster's New International Dictionary, Second Edition. We are not asked to construe the policy provision. It has been held, however, that the instant provision would exclude liability where the insured and the claimant are unmarried brothers living together in the home of their parents. Senn v. State Farm Mutual Automobile Insurance Co., Ky., 287 S.W.2d 439. The issue before us is one of fact. If, as contended by garnishee, plaintiff and defendant were both residing in the home of their parents at the time of the injury, there was no coverage under the policy. On the other hand, if, at that time, defendant resided in his parents' home and plaintiff elsewhere, garnishee may not avoid liability by reason of the provision in question.
Plaintiff's father and mother lived on a farm about two miles from Pine, in Ripley County, Missouri. Plaintiff and defendant were both single and at the time of his injury plaintiff was 23 and defendant was 25 years of age. Prior to September 1, 1954 (with the exception of three months spent in St. Louis in 1952) they had always lived in the home of their parents. Plaintiff testified that in September 1954 he had been employed by Comer Hicks to work on his farm located near Risco, in New Madrid County, Missouri, and at that time had moved to the Hicks farm where he had resided until trial time; that on November 2, 1954, he went with his employer and Lowell Tanner to Ripley County and set up a deer hunting camp in the woods; plaintiff stayed at the camp and helped with the cooking; that while there he visited in the home of his parents for a little while but did not 'stay' there. Plaintiff was injured on November 4, 1954, while on a trip to Doniphan with defendant. He stated definitely that on the date of the accident he was living near Risco and that he and the defendant were not residing in the same household.
Comer Hicks testified that plaintiff began working for him at his farm near Risco in September 1954 and had continued to work for him until the date of trial; that when he came to work for him plaintiff moved a stove, bedding, and perhaps other household belongings, and since that time had lived in a trailer house located 'two miles north of Risco on 8 ditch'; that he was residing there on November 4, 1954, although temporarily staying at the deer camp.
Plaintiff's testimony was also corroborated by that of Lowell Tanner, a school teacher. Tanner stated that he had taught at Pine during the 1953-1954 school year and at Risco the following year; that he became acquainted with Mr. Hicks who was president of the school board at Risco; that Mr. Hicks had asked him to recomend some young man to work for him on his farm; that he had suggested Earl Kelso, who was thereafter employed by Hicks and moved to the Hicks farm approximately the first of September 1954; that he had been in the small trailer house occupied by plaintiff and had seen his belongings there; that plaintiff went to the deer camp to help cook, and took his cot along and stayed with the others at the camp; that plaintiff was still living in the trailer house at the time of trial and defendant had not resided with him at that place.
Garnishee, in its effort to prove that plaintiff was residing in the same household as defendant, relied upon the following evidence: (1) an admission by plaintiff that when he entered the hospital on November 4, 1954 (shortly after receiving serious injuries) he had given his address as Pine; (2) a written statement given by plaintiff (while in the hospital) to garnishee's claims adjuster in which it was recited that plaintiff resided with his father, mother, sister and brothers on a farm about two miles from Pine, and that he and William were members of the same household on November 4, 1954, when he was involved in an accident; and (3) a written statement signed by defendant which contained substantially the same recitals as that given by plaintiff. The objection was made that this statement was not admissible because it was hearsay. Garnishee contends that it constituted an admission against interest and hence was properly admitted. We will assume for the purpose of our decision (but do not decide) that it was admissible.
We find from the evidence that plaintiff, on the date of his injury and for several weeks prior thereto, had resided in the trailer house on the farm of Comer Hicks and hence was not 'residing in the same household as the insured.' Plaintiff and two apparently disinterested witnesses gave positive, affirmative testimony to that effect. There was no testimony to the contrary. Hicks and Tanner appeared to be substantial citizens in the community where they lived. As stated, the former had been chosen as president of the school board and the latter had been employed as a school teacher. We find nothing in the transcript which would tend to indicate that they were not testifying truthfully.
On the other hand, we do not attach any great significance to the admissions upon which garnishee relies. To an ordinary layman, the important facts detailed in the two statements were the description of the manner in which plaintiff received his injuries, and the extent thereof. The recitals heretofore noted were likely considered by these brothers as formal preliminary statements which were of no particular importance. The unreliability of recitals of that kind is demonstrated by the following sentence appearing in William's statement, 'None of us have resided anywhere else but at home with our parents all our lives,' when it is conceded that William and Earl lived in St. Louis for three months in 1952. ...
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