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

• Decision Date: 14 June 1965
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Elbert B. SMITH.
• Court: Virginia Supreme Court

Page 562

142 S.E.2d 562

206 Va. 280

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Elbert B. SMITH.

Supreme Court of Appeals of Virginia.

June 14, 1965.

E. Page Preston, Norfolk (Preston & Preston, Norfolk, on brief), for plaintiff in error.

J. Carroll Fears, Jr., Norfolk (Taylor, Gustin, Harris, Fears & Davis, Norfolk, on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

GORDON, Justice.

Elbert B. Smith, who had obtained a judgment for $4,500 against Elaine R. Mellow for injuries sustained in an automobile accident, brought this action against State Farm Mutual Automobile Insurance Company ('State Farm') upon its automobile policy naming Elaine R. Mellow as the insured. ¹

The automobile driven by Elaine R. Mellow and involved in the accident was owned by her sister's husband, Francis J. Frost. Therefore, and because of the policy provisions to be discussed, the questions involved are: (1) Was Elaine R. Mellow both a relative of Francis J. Frost and a resident of the same household? (2) Had the automobile driven by Elaine R. Mellow been furnished to her for regular use? If the answer to either question is yes, State Farm must win this appeal.

The accident happened in Norfolk, Virginia. The circumstances that led to Elaine R. Mellow's presence in Norfolk and her driving the automobile owned by her brother-in-law are most relevant and will be outlined.

Elaine R. Mellow was dwelling ² on December 2, 1962, the day of the accident, in the trailer-home of her sister (Gertrude Marie Frost) and brother-in-law (Francis J. Frost) on Virginia Beach Boulevard. She had come to Norfolk with her two infant sons in October 1962, about eight weeks before the accident, intending to stay with her sister until her baby was born. Elaine R. Mellow's husband had died recently, and, upon her leaving California to travel to Norfolk, she was four months pregnant. ³

Elaine R. Mellow brought her family's clothing with her, when she came to Norfolk, but she did not bring any furniture or furnishings or appliances. The record does not indicate whether she paid for food and lodging or defrayed any of the extra expenses involved in her family's stay with the Frost family. But she did 'put' gas in Frost's automobile, at her expense.

The Mellow family dwelled with the Frost family--which included the husband Francis J. Frost (who, for reasons stated later, was rarely at home), his wife, and their two young children--throughout her stay in Virginia, first in an apartment rented by Frost and, later, in the trailer-home to which the Frost family moved. About one week after the accident or two months after her arrival in Norfolk, and before the baby was born, Elaine R. Mellow left Virginia at the suggestion of her mother-in-law, returning to California to live with the mother-in-law.

When she came to Virginia, Elaine R. Mellow left her Ford automobile, which was described in the insurance policy issued by State Farm as the 'Owned Automobile', in California. The only automobile available to her sister and her, while she was in Norfolk, was an Oldsmobile owned by Frost. It was not covered by insurance, unless covered, when driven by Elaine R. Mellow at the time of the accident, by the State Farm policy now under discussion.

As already indicated, Frost was rarely at home during the stay of his sister-in-law in Virginia. He was an enlisted man in the United States Navy on sea duty, and returned to his home for brief visits while his sister-in-law was there. While at home before the accident, Frost gave permission to Elaine R. Mellow to use the Oldsmobile whenever it was needed; the permission given to use the automobile, according to her testimony, was 'Whenever I needed to or my sister'. Her sister could not drive. The keys to the automobile were left on a table in the Frost home.

The evidence supports the conclusion that only Frost drove the automobile while he was home on leave. Although Elaine R. Mellow was not positive that she did not drive the automobile while he was home for the second time, she expressed the belief that she did not; and there is no testimony that she did. Before using the automobile at any time, she asked and secured her sister's permission for the use.

Elaine R. Mellow drove the automobile on approximately ten occasions. On two or three occasions the automobile was used for her purposes, but on other occasions it was used for the benefit of her sister--for such purposes as transporting the Frost children to or from school, or transporting groceries. She never drove the car without passengers; her sister or a friend of her sister was with her on each occasion. At the time of the accident, Elaine R. Mellow, her sister and their children were going to a friend's apartment to wash clothes and stay over the weekend. (The supply of electricity had been cut off in the trailer-home.)

At the conclusion of the plaintiff's evidence in this case, the defendant (State Farm) having offered no evidence, the court discharged the jury and entered summary judgment for the plaintiff. State Farm does not contend that the court erred in failing to submit the issue to the jury. (Counsel for each party had taken the position that his client was entitled to a judgment as a matter of law.) Its contention, in the trial court and here, was that in view of the facts, which are not in dispute, error was committed in holding that Elaine R. Mellow was covered by the State Farm policy issued to her, while driving the Oldsmobile at the time of the accident in question.

State Farm contends, first, that the Oldsmobile driven by Elaine R. Mellow at the time of the accident was not covered by its policy; that coverage was afforded only with respect to an 'Owned Automobile' or a 'Non-Owned Automobile', and the Oldsmobile was neither an 'Owned Automobile' nor a 'Non-Owned Automobile', as those terms are defined in the policy. We agree that, since the Oldsmobile was obviously not an 'Owned Automobile', coverage was afforded only if it was a 'Non-Owned Automobile'. If it was not a 'Non-Owned Automobile' (as defined in the policy) and therefore not covered under Insuring Agreement II--Non-Owned Automobiles, the Oldsmobile fell within a third category not mentioned in or covered by the policy. We must determine, then, whether the Oldsmobile fell within the policy definition of a 'Non-Owned Automobile', under the facts of this case.

Under the definition contained in the policy (see the relevant policy provisions set forth in the footnote ⁴), the Oldsmobile was a 'Non-Owned Automobile', if it was not owned by a 'relative' of the insured, that is, if Francis J. Frost (the owner) was not a 'relative' of Elaine R. Mellow (the insured). Since 'relative', by the policy definition, means 'a relative of the named insured who is a resident of the same household', the question is broken into two parts, whether Elaine R. Mellow and Francis J. Frost were relatives and whether they were residents of the same household.

'(1) to a non-owned automobile * * * (b) hired by or furnished to the named insured or a relative for regular use * * *.'

Turning to the first part of the question, we find that the policy sets forth an idem per idem definition: a 'relative' is defined as a 'relative', with no indication of the sense in which the word is used. The meaning ascribed to the word by dictionaries may usually be a relative by blood or affinity (see Webster's Third New International Dictionary, p. 1916); but this may not be the common-parlance or the legal meaning, particularly when interpreting a policy prepared by the insurer. (See Preferred Accident Ins. Co. v. Onali, 125 F.2d 580 (8th Cir.); Indiana Lumbermens Mutual Insurance Company v. Richard Passalacqua, 30 Misc.2d 626, 211 N.Y.S.2d 62.) We do not intimate, however, any future holding on this point. A holding here is unnecessary since, in our opinion, Elaine R. Mellow and Francis J. Frost were not residents of the same household and, therefore, not 'relatives', as defined in the policy.

The meaning of 'resident' or 'residence', a prolific source of litigation, depends upon the context in which it is used. ⁵ Here, we must interpret the meaning of 'resident', when followed by 'of the same household'. The word 'household', which has been defined as set forth in the footnote, ⁶ connotes a settled status; a more settled or permanent status is indicated by 'resident of the same household' than would be indicated by 'resident of the same house or apartment'. We interpret the language of the policy as excluding coverage if Elaine R. Mellow had assumed a residence and become so intertwined with the Frost family as to become a member of that family, ⁷ and as extending coverage if she was a visitor or sojourner in the Frost home.

The proper conclusion to be drawn from the facts in this case is that Elaine R. Mellow was a visitor or sojourner in the Frost home and, therefore, was driving a 'Non-Owned Automobile' at the time of the accident. She came to Norfolk for a limited period of time, limited to the remaining period of her pregnancy. Her original plan was altered by another invitation; she left the Frost home upon receiving an invitation to live with her mother-in-law. Had she originally intended to be, or subsequently become, a resident of the Frost household, it is unlikely she would have agreed to a change of her settled status upon receiving another invitation. (There is no evidence of a strained relationship between Elaine R. Mellow and Frost or her sister, resulting from the accident.) The evidence as a whole does not support a finding that Elaine R. Mellow was a resident of the Frost household. ⁸

In Goens v. Arinder, 248 Miss. 806, 161 So.2d 509, it was held that a daughter, who, with her husband and child, was living in her father's home until her baby was born and her house completed, was a visitor or sojourner in her ...