Simon v. Milwaukee Auto. Mut. Ins. Co.
| Decision Date | 27 April 1962 |
| Docket Number | No. 38268,38268 |
| Citation | 262 Minn. 378,115 N.W.2d 40 |
| Parties | Theodore SIMON and James J. Simon, Respondents, v. MILWAUKEE AUTOMOBILE MUTUAL INSURANCE COMPANY, Appellant, Sigmund F. Lehrke, as trustee for Marina A. Lovaas, deceased, et al., Respondents, General Fire and Casualty Company, Respondent, Karl Bird and Lena Bird, Respondents. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. A 'drive other automobiles' provision in an automobile insurance policy excepting the insurer from liability with respect 'to any automobile owned by or furnished for regular use to either the named insured or a member of the same household' is not ambiguous.
2. The rule that if a provision in an insurance contract is ambiguous it must be construed against the insurer, who prepared the contract, is limited by the rule that where the contract is unambiguous the language used must be given its ordinary and usual meaning the same as any other contract.
3. The meaning ascribed to the word 'household' as used in such exclusionary provisions of an insurance policy in Engebretson v. Austvold, 199 Minn. 399, 271 N.W. 809, and Tomlyanovich v. Tomlyanovich, 239 Minn. 250, 58 N.W.2d 855, 50 A.L.R.2d 108, is followed in this case.
4. The evidence in this case conclusively establishes that at the time of the accident involved plaintiff Theodore Simon was a member of the same household as plaintiff James J. Simon and, as a result, the exclusionary clause in the policy precludes any liability on the part of the insurer.
Rich & Johnson, Minneapolis, for appellant.
John M. Fitzgerald, New Prague, Ray G. Moonan, Moonan & Moonan, Thompson, Hessian, Fletcher & McKasy, Minneapolis, Young, Kunz & Mueller, New Ulm, Hottinger & Schmidt, Le Sueur, for respondents.
This is an appeal from an order denying a motion of defendant Milwaukee Automobile Mutual Insurance Company 1 for amended findings of fact, conclusions of law, and order for judgment or, in the alternative, for a new trial, and also from a judgment entered pursuant to the court's order.
The present action is brought for a declaratory judgment to determine the liability of defendant insurer under a policy of automobile insurance.
The action stems from suits in which verdicts were recovered against plaintiffs as the result of an automobile accident which occurred on September 7, 1958. On that date and for some time prior thereto, Theodore Simon was the owner of a 1957 Chevrolet automobile insured by defendant with policy limits of $50,000 for injury to one person and $100,000 for one accident. Theodore's father, James J. Simon, owned a 1951 Chevrolet automobile insured by General Fire & Casualty Company with policy limits of $10,000 on one person and $20,000 on one accident.
In the original actions brought by representatives of parties injured or killed as a result of the accident, verdicts considerably in excess of the policy limits of the insurance carried on the automobile owned by James Simon were recovered. General Fire & Casualty Company paid these verdicts up to the amount of the policy limits, and plaintiffs now seek to compel defendant in this action to pay the balance of the verdicts.
On the day of the accident, through arrangements made with his mother, Theodore and his father exchanged cars for the day, and the accident happened while Theodore was driving the automobile owned by his father, James Simon.
The defense of the original actions was tendered to defendant in this action, but it refused, claiming that the policy covering the automobile of Theodore did not cover the liability involved in the original actions. Defense was thereupon undertaken by General Fire & Casualty Company, the insurer on the policy issued to James Simon.
The policy covering the automobile owned by Theodore Simon contained provisions for coverage while the insured was driving other automobiles, with exceptions. The pertinent provisions of the policy read:
'(d) This insuring agreement does not apply: (1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household * * *.'
Inasmuch as the determination of the present appeal involves a question as to whether Theodore Simon was a member of the same household as James Simon, it is necessary to state the facts relating to the manner in which the two plaintiffs lived at and prior to the time of this accident. The record is voluminous, but the facts may be somewhat condensed.
James J. Simon had lived and raised his family on a farm of 160 acres about 6 miles southeast of New Prague, in Rice County, Minnesota. He also owned a farm of 160 acres about 9 miles northeast of New Prague, in Scott County. These farms will be referred to hereinafter as the Rice County farm and the Scott County farm.
James Simon and his wife had three daughters and four sons, James, Jr., Norbert, Bernard, the Theodore. From 1951 to 1953, James, Jr., and Theodore lived at and took care of the Scott County farm. Theodore was then about 19 to 21 years of age. From 1953 to 1955, Theodore was in the armed services, and Norbert lived on the Scott County farm. In 1956, James, Jr., was married, and his father set him up on a third farm near New Prague that is not involved in this action. Norbert was married in 1957. He had then been living on the Scott County farm for some time. About 2 months after his marriage, he met his death in an automobile accident. He had been operating the Scott County farm under a crop-share lease with his father.
In 1955, Theodore was discharged from the army and returned to his father's Rice County farm and lived there much as he had done before. When Norbert met his death, Theodore looked after the Scott County farm. He had been planning to marry a young lady as soon as she finished high school in June 1958. When Norbert died, his widow left the farm and went back to her parents, and Theodore then made arrangements to buy the furniture on the Scott County farm in anticipation of his forthcoming marriage. He actually paid for it in October 1958. It was their plan that as soon as they were married he and his wife would live on the Scott County farm. They were in fact married on September 23, 1958, 16 days after this accident occurred.
On the Scott County farm were 20 head of milch cows, some hogs, and from 275 to 300 laying chickens. On March 5, 1958, Theodore and his father entered into a written lease of the Scott County farm on a fifty-fifty basis, Theodore to manage and control the farming operations and his father to furnish the farm and equipment. Theodore was then enrolled in a GI Bill of Rights farm training program which had the prerequisite that he have a farm under his control.
Theodore continued to live at his father's home until his marriage. Routinely, he would have breakfast at home and leave for the Scott County farm early in the morning to take care of the chores and do the other work required there. He customarily spent all day at the Scott County farm. He usually returned to his father's home for dinner and, for the most part, spent his nights there. He did spend a few nights at the Scott County farm from time to time. The testimony is that he spent 9 or 10 nights each in the months of July and August and 3 or 4 nights each in the months of April, May, and June of 1958. He spent no nights on the Scott County farm during the month of the accident. During the winter of 1957--1958 he spent some nights there looking after cows that were about to freshen or sows that were about to farrow.
The evidence shows that, except for the heavier work such as plowing, Theodore completely maintained the Scott County farm in the spring of 1958. He took care of the house and the grounds and did all the chores. He had some of his clothes there and some of them at his father's home. His mother did his laundry, and he received his mail at the Rice County farm.
After the accident, Theodore signed a written statement on September 11, 1958, in which he said:
* * *
On September 16, 1958, Theodore Simon signed a sworn application for a marriage license in which he stated that his home was in Rice County. The license to marry was issued by the clerk of District Court of Rice County. The certificate of marriage issued by the priest who performed the ceremony states that he 'did join in the Bonds of Matrimony * * * Theodore J. Simon of New Prague Route #2 a resident of the County of Rice State of Minnesota.'
Depositions of Theodore Simon and James Simon were taken under oath on March 30 and 31, 1959. In these it was stated unequivocally that Theodore lived at his father's home. Characteristic of the testimony of the parties at these depositions and at the original trial is the following:
'A. Theodore and his brother and one sister.'
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