State Farm Mut. Auto. Ins. Co. v. Gazaway

• Decision Date: 25 January 1980
• Docket Number: No. 58571,58571
• Citation: 152 Ga.App. 716,263 S.E.2d 693
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. GAZAWAY et al.
• Court: Georgia Court of Appeals

Page 693

263 S.E.2d 693

152 Ga.App. 716

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. GAZAWAY et al.

No. 58571.

Court of Appeals of Georgia.

Argued Sept. 26, 1979.

Decided Dec. 5, 1979.

Certiorari Denied Jan. 25, 1980.

John F. Daugherty, Michael L. Wetzel, Atlanta, for appellant.

Joseph R. Cullens, Arnold Wright, J. Fred Ivester, Robert H. Cleveland, John H. Moore, Marietta, for appellees.

McMURRAY, Presiding Judge.

This case involves a wrongful death action wherein the plaintiffs' decedent, Mrs. Cecelia Catherine Stoker, the wife of plaintiff Roy Allen Stoker and the mother of the other plaintiffs, was killed as a result of the collision of three automobiles. As alleged in the petition, two other automobiles collided, causing one of the vehicles to strike an automobile allegedly owned and operated by the plaintiffs' decedent. The action was served on the resident defendant; and second originals were served on two non-resident defendants and upon State Farm Mutual Automobile Insurance Company and Progressive Casualty Insurance Company.

In addition to the answers of the defendants, State Farm Mutual Automobile Insurance Company filed an answer with defenses of failure to state a claim upon which relief can be granted and other defenses implying the uninsured motorist coverage by it to plaintiff Roy Allen Stoker would not apply in this case. It contends that the plaintiff Roy Allen Stoker was not entitled to any relief in that the decedent, his wife, was not a resident of the same household as this plaintiff; hence she was not insured under the policy of insurance issued by the insurer to plaintiff Roy Allen Stoker, and since she must be a resident of the same household of a named insured (in this case plaintiff Roy Allen Stoker) at the time of the incident in question it should be dismissed without cost as to it.

The Progressive Casualty Insurance Company answered contending that it had provided no uninsured motorist coverage whatsoever in regard to the incident in question in which the plaintiffs' decedent was killed, hence it should be discharged as a party without any interest in this action.

After considerable discovery, in which there is some evidence that other insurance companies may be involved as insurers, State Farm Mutual Automobile Insurance Company moved for summary judgment. It contended there was no genuine issue as to any material fact with reference to it as an insurer with uninsured motorist coverage to plaintiff Roy Allen Stoker, and it was entitled to judgment as a matter of law in its favor as to all issues of liability inasmuch as the plaintiffs' decedent was not, as a matter of law, a named insured or "other insured" in Roy Allen Stoker's policies of insurance. Its claim is that the decedent was not a resident of the named insured's household at the time of her fatal accident.

After a hearing and after consideration of the argument of counsel, the pleadings and "discovery of the case," the trial court was of the opinion that a genuine issue as to material facts remained to be resolved by a jury, that is, as to whether plaintiffs' decedent "was a resident of the same household as the named insured, Roy Allen Stoker," at the time of the automobile collision in which she was killed.

By order of this court, upon application for an interlocutory appeal, State Farm Mutual Automobile Insurance Company was allowed to file a notice of appeal. Held :

The insurer contends from the uncontradicted facts that the decedent was not a resident of her husband's household at the time of the collision, based, more or less, upon the decision of Cotton States Mut. Ins. Co. v. McEachern, 135 Ga.App. 628, 218 S.E.2d 645. The uncontested facts appear to be that while husband and wife were married at the time that she was killed they were residing apart in separate trailers and had been for about seven years. However, they were never divorced, were not legally separated, and neither of these legal conditions were under any consideration. The separate mobile homes were approximately 15 miles apart. Their children stayed with the mother during the week and would stay with the husband almost every weekend. The trailer where the wife lived was titled in the name of the husband, he having financed the trailer and helped the wife to make payments on it, providing her $60 per week for her own support and for the support of their children. Often the utility bills and telephone bills for Mrs. Stoker's trailer would come to him in the mail, as well as doctor and hospital bills for the children which he always paid. They filed joint income tax returns together each year. Mr. Stoker's hospitalization insurance listed Mrs. Stoker as his wife. When he was asked the question as to whether or not he considered his residence to be at his trailer and his wife's trailer to be her home, his answer was: "Well, I considered both of them her home or mine, either one. I didn't look at it like that. I figured anything I had was theirs."

We are not concerned here at this time with whether or not other insurers are involved which would relieve State Farm from liability. Here State Farm admits it has in existence two policies containing uninsured motorist coverage, although the policies do not appear in the record. However, the policies would be controlled by Code Ann. § 56-407.1, as amended (Ga.L.1963, p. 588; 1964, p. 306; 1967, pp. 463, 464; 1968, pp. 1089, 1091; 1968, pp. 1415, 1416; 1971, pp. 926, 927; 1972, pp. 882, 883; 1973, p. 487; 1975, p. 1221; 1976, pp. 1195, 1196; 1978, pp. 1895, 1896, eff. July 1, 1978, and applicable with respect to motor vehicle liability insurance policies issued or delivered in this state on or after January 1, 1979). Therein, the term "insured" includes the spouse of a named insured (plaintiff admitted here to be the named insured) "while resident of the same household." (Emphasis supplied.) Consequently, we have for determination the meaning of the word "resident" and the words "same household." A number of decisions have interpreted language in policies "residing in the same household as the insured." Thus the language is the same, although the same words are not used.

It has long been held by the numerous decisions of our appellate courts that the questions of domicile and residence are mixed questions of law and fact and are ordinarily one for a jury to determine. See in this connection Campbell v. Campbell, 231 Ga. 214, 215(1), 200 S.E.2d 899 and the various cases cited therein; Patterson v. Patterson, 208 Ga. 7, 13, 64 S.E.2d 441; Williams v. Williams, 226 Ga. 734(2), 736, 177 S.E.2d 481. Of course, residence and domicile are not synonymous and convertible terms, although one's domicile would be one's residence. "A man may have several residences, but only one place of domicile." Avery v. Bower, 170 Ga. 202, 204(1), 152 S.E. 239, 241.

We also have for consideration here the doctrine of continuity. That is: a state of things once existing is presumed to continue until a change or some adequate cause of change appears, or until a presumption of change arises out of the nature of the subject. Bass v. Bass, 222 Ga. 378, 381-382, 149 S.E.2d 818. Here there were two residences but only one domicile. While it is possible that the recent case of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 may in many unknown degrees change our domestic relations law in this state, nevertheless this court is bound by Code Ann. § 53-501 which has been the law of this state since 1855, which reads as follows: "The husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit . . . " They became a family unit upon marriage which would remain until dissolved.

The issue, therefore, is not whether plaintiff husband's decedent had a right to set up a separate household nor even whether she did set up a separate household, but for the jury to determine under various facts of this case whether she had set up her own household or was still a part of her husband's household. Under the facts here it was for the jury to determine the intention of the parties. From plaintiff's testimony it is clear that his family was still intact even though there was definitely evidence of marital discord. There was an establishment of at least two residences although there had been no steps taken to end the legal relationship of marriage. Under all the facts and circumstances the family was still intact inasmuch as the husband was still supporting his wife and children...