Third Nat. Bank of Ashland v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 25 March 1960
• Citation: 334 S.W.2d 261
• Parties: THIRD NATIONAL BANK OF ASHLAND, Administrator of Estate of Phyllis Darlene McBrayer, Deceased, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 261

334 S.W.2d 261

THIRD NATIONAL BANK OF ASHLAND, Administrator of Estate of Phyllis Darlene McBrayer, Deceased, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

Court of Appeals of Kentucky.

March 25, 1960.

Rehearing Denied May 6, 1960.

Eldon L. Webb, John W. McKenzie, Ashland, for appellant.

H. R. Wilhoit, Grayson, for appellee.

PALMORE, Judge.

This is an action against an insurance company brought by an administrator holding an unsatisfied judgment for wrongful death against the driver of an automobile on which the defendant had issued a policy covering liability for personal injuries and property damage. Since the driver and the victim of the accident were sisters-in-law living in the same home the trial court found for the insurance company as a matter of law under a clause in the policy excluding from its coverage bodily injuries 'to the insured or any member of the family of the insured residing in the same household as the insured.' The plaintiff appeals from a judgment dismissing the complaint as to the insurance company.

The insurance policy was in effect at the time of the accident. It defined the word 'insured' as including both the named insured and any other person using the car with his permission. Its personal injury coverage was made inapplicable to claims of the insured or members of his or her family residing in the same household as the insured. The named insured was Claude Sammons, the owner of the car, who was serving with the U. S. Army in Germany at the time the policy was issued and at the time of the accident. He had left the car with his father, W. T. Sammons, at the Sammons home in Flatwoods, Greenup County, with permission to the father and two brothers to use it. The father seldom, if ever, drove the car himself, but of his own volition he procured the policy in question for the protection of his other two sons, who would be the principal drivers while Claude was away.

On the night of the accident one of Claude's brothers, Tom Sammons, a regular user of the car, had a date with Joyce Sewell. She lived at Raceland in the home of her mother and father, Mr. and Mrs. Sherman McBrayer, as did her brother, Donald McBrayer, and his wife, Phyllis McBrayer (plaintiff's decedent). Tom was to play in a softball game at Ashland, and Phyllis went along with him and Joyce to Ashland. Joyce had not eaten supper, so when they arrived at the ball park Tom got out and let Joyce have the car to go to a restaurant for supper. On the way back to the ball park from the restaurant, with Joyce driving the Sammons car accompanied by Phyllis, the girls had a collision with a car driven by one Woodie Thomas Hill, and Phyllis was fatally injured. Her administrator recovered a $12,500 judgment against Joyce Sewell and Woodie Thomas Hill jointly and collected $5,000 thereunder through Hill's insurance. Executions against Joyce and Hill for the balance of $7,500 were returned unsatisfied.

Joyce Sewell was self-supporting. She and her little daughter had come to live with her father and mother following a divorce from her husband a year and a half before the time of the accident. She had a bedroom and a half-bathroom in their 7-room house, for which she paid $10 per week. Phyllis and Joyce's brother, Donald McBrayer, had married about three years before the accident and had lived in the McBrayer home ever since, except for a period of some four months during the summer of 1953 when Donald had a job in South Bend, Indiana, and Phyllis went with him. Donald and Phyllis also had a small daughter. They had a bedroom of their own...