Teter v. Corley, 49368

• Decision Date: 15 September 1978
• Docket Number: No. 49368,49368
• Parties: Beverly J. TETER and Insurance Company of North America, Appellees, v. Jerry L. CORLEY and Herbert E. Corley, Defendants, and Ranger Insurance Company, Appellant.
• Court: Kansas Court of Appeals

Page 651

584 P.2d 651

2 Kan.App.2d 540

Beverly J. TETER and Insurance Company of North America, Appellees, v. Jerry L. CORLEY and Herbert E. Corley, Defendants, and Ranger Insurance Company, Appellant.

No. 49368.

Court of Appeals of Kansas.

Sept. 15, 1978.

Syllabus by the Court

In a garnishment proceeding against an automobile liability insurer, it is Held: the insured driver of a temporary substitute automobile was not a "resident of the same household" as the owner of such vehicle.

Michael R. O'Neal, of Hodge, Reynolds, Smith, Peirce & Forker, Hutchinson, for appellant.

Joseph A. Knopp and Herbert R. Hess, Jr., of Hess, Leslie, Berkley & Granger, Hutchinson, for appellees.

Before REES, P. J., and SPENCER and PARKS, JJ.

REES, Judge:

This is an appeal by an insurer ("Ranger") from a determination that it afforded coverage under an automobile liability insurance policy.

On February 2, 1975, a Chevrolet automobile was involved in an accident. Beverly J. Teter, a passenger, was injured. The driver was Jerry L. Corley. The car was owned by Jerry's father, Herbert E. Corley, who had no insurance. There was in effect an automobile liability insurance policy issued by Ranger to Jerry as its named insured. Jerry's Chevrolet van was the "owned automobile" under Ranger's policy.

Beverly and the Insurance Company of North America obtained judgments against Jerry for damages resulting from the accident. They then successfully prosecuted this garnishment proceeding to satisfy the judgments. Ranger contends it afforded no coverage.

Ranger's policy provided coverage for liability arising out of use of a temporary substitute automobile. The latter is defined by the policy as follows:

" 'Temporary substitute automobile' means an automobile not owned by the named insured or any resident of the same household while temporarily used with the permission of the owner as a substitute for an owned automobile when withdrawn from normal use for servicing or repair, or because of its breakdown, loss or destruction."

Ranger has effectively conceded that Jerry's use of the car came under its coverage as use of a temporary substitute automobile but for the definitional element of non-ownership by "any resident of the same household." Accordingly the sole issue is whether Jerry was a resident of the same household as his father on the date of the accident. The trial court held he was not. We are asked to hold as a matter of law that he was.

Review of the record discloses that the following findings of fact by the trial court aptly reflect and summarize the evidence:

"1. On the date of the accident Jerry Corley and his wife were experiencing matrimonial difficulties. On January 5, 1975, they had come to a parting of the ways and both left the matrimonial domicile and went their separate paths. Jerry was sleeping in an assortment of places. First, he started at his sister's house until January 10, and next he slept at a tavern which he owned on South Lorraine until about January 13. Then to his Grandmother's place he went, where he had stored his furniture, leaving Grandma on January 16. The next couple of nights he spent at the tavern and then went back to his sister's home where he remained until January 25th at which time he moved in with his wife in an attempt to effect a reconciliation. This effort lasted until approximately January 31, when he moved to his father's house and spent the following two nights sleeping on the floor.

"2. On the night of the accident, February 2, 1975, Jerry stayed all night at the hospital to which Beverly had been taken, and then he went to his grandmother's place again, staying until the 6th, when he moved to his father's home, where he stayed about a month. On March 7, he moved into a house where a girl friend stayed. Thereafter he went to his father's home until he moved to Wellington.

"3. During his peregrinations, Jerry kept his clothes in the car and ate most of his evening meals with his folks under an arrangement with his mother to pay $2.00 per meal or $65.00 per month, with the understanding he could sleep there when he had no other place to lay his head. During this period of time, Jerry was looking for and answering want ads, looking for a place to rent.

"5. On January 25, Jerry consulted Mr. McKibben, an agent for Ranger Insurance Company. He was accompanied by a woman, apparently his wife. Jerry told Mr. McKibben he wanted to insure his father's car, but was advised he couldn't do this but that if he wanted to insure his own car, a Chevrolet van, he would be covered if he drove his father's vehicle. At this time Jerry's address was in a state of flux and Mr. McKibben suggested he use his tavern's address and then notify him when he acquired a permanent one.

"6. Mr. McKibben gave Jerry a receipt for the premium he paid, but no policy was delivered to the insured until demand was made after the insurance company had denied coverage."

An obvious reason lying behind Ranger's denial of coverage was that on various occasions when Ranger contacted Jerry in its investigation of the accident and the question of coverage, Jerry gave Ranger his parents' address as his address as of and at other times after the accident date. In this general regard, the trial court found:

"4. Jerry used his father's address, RFD 4, as a place for receiving mail and a place through which he could be contacted, in as much as he was taking his evening meals there."

In the trial court and before us, Ranger has taken upon itself the burden of proof to establish that Jerry and his father were residents of the same household. Having failed to do so, in the judgment of the trial court, it was held as a conclusion of law that:

"3. It has not been established that on February 2, 1975, Jerry Corley was a resident member of his father's household within the meaning of the exclusionary clause of the policy issued by Ranger Insurance Company."

The trial judge gave the parties the benefit of comments concerning his consideration of the case. He had taken into account, among other matters, statutory definitions of "residence" and "householder" (K.S.A. 77-201, Twenty-third and Twenty-fifth ) as well as Vaughn v. American Alliance Ins. Co., 138 Kan. 731, 27 P.2d 212 (1933), and General Leasing Corp. v. Anderson, 197 Kan. 327, 416 P.2d 302 (1966). Most directly he said:

". . . I believe it cannot be said that on February 2, 1975, Jerry Corley had become a 'resident member' of any household. His pattern of living was peripatetic at best: he was a foot loose wanderer, going from relative to relative, taking root nowhere.

"Nor am I able to infer an intention on his part to return habitually to his father's home. Neither before nor subsequent to February 2d, is a pattern of stability discernible."

Although not automobile liability insurance cases, Estate of Schoof v. Schoof, 193 Kan. 611, 612, 396 P.2d 329 (1964); Buehne v. Buehne, 190 Kan. 666, 676, 378 P.2d 159 (1963); Irvin v. Irvin, 182 Kan. 563, 566-567, 322 P.2d 794 (1958); Gleason v. Gleason, 159 Kan. 448, Syl., 155 P.2d 465 (1945), are authority for the rule that a determination of residence by a trial court is generally a question of fact which will be upheld on appeal when supported by substantial competent evidence. We discern no reason for the rule to be otherwise here.

The law concerning the establishment and continuance of a "residence" is well stated in Estate of Schoof v. Schoof, supra, as follows:

"The establishment of residence requires the concurrence of two factors: one physical, the other intellectual. There must be bodily presence at a location coupled with intent to remain there either permanently or for an indefinite period, before residence can be said to have been acquired. A residence once established is presumed to continue until the same has been abandoned. (Keith v. Stetter, 25 Kan. 100; Palmer v. Parish, 61 Kan. 311, 313, 59 P. 640.) To effect a change of residence, there must be transfer of bodily presence to another place coupled with an intent to abide in the new location either permanently or indefinitely. (Ford, Adm'x, v. Peck, 116 Kan 74, 225 P. 1054.) The length of the stay in the new abode is not of controlling importance, for no stated period of time is required to complete a change of residence; the change may be effectuated on the first day of arrival in the new location provided the requisite intent to establish residence therein be present. . . ." (193 Kan. at 614, 396 P.2d at 331.)

In reality, two separate intentions are involved; one to abandon the old location and one to abide in the new. If the last intention be formed, it necessarily includes the first. Arnette v. Arnette, 162 Kan. 677, Syl. 4, 178 P.2d 1019 (1947).

We believe the definition set forth in Estate of Schoof v. Schoof, supra, is controlling, that is, "residence" requires two elements: (1) bodily presence at the location, and (2) intent to remain there either permanently or for an indefinite period.

A case similar to the one before us is State Farm Mutual v. Smith, 206 Va. 280, 142 S.E.2d 562 (1965). The insured had moved from California to Virginia to live with her sister and brother-in-law. The insured intended to live with her relatives only until her baby was born. Some eight weeks after moving to Virginia, the insured was involved in an accident while driving her br...