Southern Farm Bureau Cas. Ins. Co. v. Kimball

• Decision Date: 26 May 1977
• Docket Number: No. 5706,5706
• Citation: 552 S.W.2d 207
• Parties: SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Kenneth C. KIMBALL et al., Appellees.
• Court: Texas Court of Appeals

Page 207

552 S.W.2d 207

SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Kenneth C. KIMBALL et al., Appellees.

No. 5706.

Court of Civil Appeals of Texas, Waco.

May 26, 1977.

Rehearing Denied June 16, 1977.

Sherwin A. Winniford, Haley, Fulbright, Winniford & Bice, Waco, for appellant.

G. Stanley Rentz, Waco, for appellees.

HALL, Justice.

Appellee Kenneth C. Kimball (Kenneth) is the named insured in a family automobile policy issued by appellant, Southern Farm Bureau Casualty Insurance Company. Kenneth's wife, Connie, was killed in an automobile accident with an uninsured motorist when the policy was in force. At the time of her death, she and Kenneth were separated, living in separate residences, and a divorce action filed by her was pending. Appellant brought suit seeking a declaratory judgment as to its responsibilities under the policy for uninsured motorist protection benefits, personal injury protection benefits, and death indemnity benefits. Appellant's suit was consolidated for trial with another brought by appellees for these benefits. On the trial, under stipulated facts, the only issue raised by the parties was whether Connie and Kenneth were "residents of the same household," as that term is used in the policy, at the time of Connie's death. Appellant contended she was not, but it conceded that if she was then it was liable for the benefits in question.

Trial was to a jury. It was asked the single question, "Do you find from a preponderance of the evidence that at the time of the accident in question, Connie Kay Kimball was a resident of the same household as Kenneth Kimball?" The jury was instructed that "by the term 'resident of the same household' is meant: (A) by the term 'resident' (is meant) a member of the same family; and (B) by the term 'household' is meant persons who dwell together as a family." The jury answered the question, "She was a resident of the same household." Judgment was rendered on the verdict in favor of appellees.

It is appellant's contention that the evidence is legally and factually insufficient to support the jury's finding. Particularly, appellant argues that under the court's definitions parties must not only be members of the same family but must also "dwell together under the same roof" in order to be residents of the same household; and that the undisputed proof that Kenneth and Connie were separated and living in separate residences establishes as a matter of law that they were not residents of the same household. We overrule these contentions and affirm the judgment.

The controlling test of whether persons are residents of the same household at a particular time, within the meaning of the policy in question, is not solely whether they are then residing together under one roof. The real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary i. e., whether there is physical absence coupled with an intent not to return. In American States Ins. Co. v. Walker, 26 Utah 2d 161, 486 P.2d 1042, 1044 (1971), the court said that the residence in question "emphasizes membership in a group rather than an attachment to a building"; and that it is "a matter of intention and choice" rather than one of location. Under proper facts, it has been held that separations from the common roof by college students, by members of the military services, and by spouses (albeit with divorce actions pending) did not, per se, destroy their household membership with their families and spouses. See, Crossett v. St. Louis Fire And Marine Ins. Co., 289 Ala. 598, 269 So.2d 869 (1972); Manuel v. American Employers Insurance Company, 228 So. 321 (La.App., 1939); Giese v. Karstedt, 30 Wis.2d 630, 141 N.W.2d 886 (1966); Allstate Ins. Co. v. Jahrling, 12 N.Y.2d 943, 238 N.Y.S.2d 517, 188 N.E.2d 791 (1963); Doern v. Crawford, 36 Wis.2d 470, 153 N.W.2d 581 (1967); American Casualty Co. v. Harleysville Insurance, 238 Md. 322, 208 A.2d 597 (1965); Lumbermen's Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104 (Alaska Sup., 1963). Related annotations are found in 173 A.L.R. 901, 1 A.L.R.2d 557, 78 A.L.R.2d 1395, and 46 A.L.R.3rd 1024.

Three Texas cases cited by appellant which deal with spouses living in separate residences are Firemen's Insurance Company of Newark, New Jersey v. Burch, 426 S.W.2d 306 (Tex.Civ.App. Austin, 1968 ¹; Boon v. Premier Insurance Company, 519 S.W.2d 703 (Tex.Civ.App. Texarkana, 1975, no writ), and Cunningham v. Members Mutual Ins. Co., 456 S.W.2d 216 (Tex.Civ.App. Fort Worth, 1970, no writ). In Burch and Boon divorce actions were pending and there was also direct testimony by a spouse, corroborated by other proof, that the separation was permanent. Findings in both cases that the spouses were not residents of the same household were held supported by proof on appeal. The appellate courts emphasized the proof supporting the findings, concluded fact questions were raised, and refused to hold that the spouses were, as a matter of law, residents of the same household. In Boon, the court pointed to "cases with similar fact situations in which the trier of facts concluded that the wife was a resident of the same household, (and) the appellate courts have affirmed the lower court judgments." In Cunningham, (a venue case), the court emphasized the fact of the spouses' separation in leaving intact a finding that they were not residents of the same household, but stated that they were "in an identical position" as the parties in Burch, and based its ruling on the holding in Burch. If, as appellant says, Cunningham stands for the proposition that the "one roof, dwelling together"...