Mission Ins. Co. v. Ward
| Decision Date | 11 December 1972 |
| Docket Number | No. 57937,57937 |
| Citation | 487 S.W.2d 449 |
| Parties | MISSION INSURANCE COMPANY, a corporation, Respondent, v. Mark S. WARD et al., Defendants, Mark S. Ward and Clifford Ward, Appellants. |
| Court | Missouri Supreme Court |
Paul E. Kovacs, Carter, Brinker & Doyen, Clayton, for respondent, Mission Ins. Co.
Klutho & Cody, Edward C. Cody, St. Louis, for appellants.
Plaintiff, Mission Insurance Company, filed this suit seeking a declaratory judgment concerning its obligations under a policy of automobile liability insurance issued to Seth A. Ward. It alleged that it was not obligated to defend or to pay any judgment that might be rendered in a suit that had been filed against Seth by his grandson, Mark S. Ward, and Mark's father Clifford. A trial before the court resulted in a judgment in favor of plaintiff. Mark and Clifford appealed to the Missouri Court of Appeals, St. Louis District. That court, with three judges concurring and two dissenting, adopted an opinion reversing the trial court's judgment. Upon Mission's application, we ordered the case transferred to this court. It will be determined here 'the same as on original appeal.' Mo.Const. Art. V, § 10, V.A.M.S.
On August 15, 1969, Mission issued a policy of automobile liability insurance to Seth A. Ward which contained the following exclusion clause: 'This policy does not apply: (a) under coverage A, to the liability of any insured for bodily injury to (1) the named insured, (2) any relative of the named insured who is a member of the named insured's household.'
On May 22, 1970, Seth, at Clifford's request, drove his (insured) automobile to the school Mark attended in order to pick up Mark and bring him home. After Mark entered the car it was involved in a one-car collision when it struck a bridge abutment and Mark was severely injured. As heretofore stated, Mark and Clifford filed suit against Seth to recover damages resulting from the injuries Mark sustained and this declaratory judgment action followed. Mission contends that its policy is not applicable to Mark's suit because of the quoted exclusion clause and the alleged fact that Mark and Clifford, relatives of Seth, were 'member(s) of the named insured's household.' The trial court's findings, upon which judgment was entered, was that
Seth A. Ward, age 80, testified that he had lived with his wife in a house at 310 Harrison for 35 years; that it was a six-room house with one kitchen, one refrigerator, one bathroom, and one mailbox; that in March 1970 Clifford had stored his furniture and he and Mark moved in with them temporarily; that Clifford bought his own groceries and kept them in the refrigerator but anyone would get anything he wanted from the refrigerator; that Clifford did most of the cooking but they all seldom ate together, although when Clifford was not there Mark would eat with him and his wife; that they all shared the bathroom and kitchen; that Clifford moved in with them because the rent where he was living was too high, but that he was regularly seeking living quarters elsewhere. This witness further testified that the house was not divided into apartments but that Clifford and Mark occupied a bedroom on the second floor and had their own TV set; that Clifford paid rent to his mother.
Clifford Ward testified that his wife had died about 18 months before he moved in with his father; that after her death he moved to a house on Gist Road where he lived for about a year; that he moved in with his father because the rent on the Gist Road house was too high; that he paid his mother $25 a week rent but the arrangement was temporary; that no specified time was stated for him to stay but he was constantly looking for a suitable place to rent at a reasonable rental; that he and Mark would normally go out for the evening meal although if he had time he would cook a meal; that they would eat with his parents only on special occasions, perhaps on Sunday; that he did the laundry; that all the utilities remained in his father's name except the telephone which he had placed in his name for business purposes; that when they moved to his father's home he did not change his voter registration nor Mark's school; that he has since rented a house and moved into it about three weeks before trial; that in addition to Mark, his two stepdaughters now reside with him.
Appellants' points upon this appeal are (1) 'the court erred in finding that the injured minor grandson, Mark Ward, and his father, Clifford Ward, were members of the insured's household, where all the evidence was that Clifford Ward and Mark Ward were only temporarily residing at the same address as Seth Ward, and that Clifford Ward and Mark Ward were not members of Seth Ward's household,' and (2) the court erred in finding the policy inapplicable because 'insurance policies excluding 'members of the same household' should not be interpreted to frustrate and defeat protection, rather they should be construed to accomplish the object of furnishing protection.' Respondent contends that there was ample evidence to support the trial court's findings and that the judgment should not be set aside because not clearly erroneous, and that we should defer to the opportunity of the trial court to judge the credibility of the witnesses.
In this court-tried case we review the record upon both the law and the evidence, determine the weight and value to be given to the testimony, and make our own findings of fact. In arriving at our...
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