Kelso v. Kelso, No. 45995

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PER CURIAM
• 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
• Docket Number: No. 45995,No. 1
• Decision Date: 12 November 1957

Page 534

306 S.W.2d 534 71 A.L.R.2d 258 Earl KELSO, Plaintiff-Appellant,
v.
William B. KELSO, Defendant,
and
State Farm Mutual Automobile Insurance Company, a
Corporation, Garnishee- Respondent. No. 45995. Supreme Court of Missouri, Division No. 1. Nov. 12, 1957.

Page 535

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

Page 536

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.

'In a case of this nature it is our duty to review the case de novo, weigh the competent evidence, and reach our own conclusions as to the facts, but 'due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Section 510.310(4), RSMo. 1949, V.A.M.S.' 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

Page 537

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...