Tomlyanovich v. Tomlyanovich

• Decision Date: 01 May 1953
• Docket Number: Nos. 35969,35973,s. 35969
• Citation: 58 N.W.2d 855,50 A.L.R.2d 108,239 Minn. 250
• Parties: , 50 A.L.R.2d 108 TOMLYANOVICH v. TOMLYANOVICH (two cases).
• Court: Minnesota Supreme Court

Page 855

58 N.W.2d 855

239 Minn. 250, 50 A.L.R.2d 108

TOMLYANOVICH v. TOMLYANOVICH (two cases).

Nos. 35969, 35973.

Supreme Court of Minnesota.

May 1, 1953.

Syllabus by the Court.

1. Where a policy of automobile indemnity insurance exempted the insurer from liability for personal injuries to any member of the family of the insured, an adult brother of the insured living in the same household was within the exclusionary clause.

2. Whether the insured under a policy of automobile indemnity insurance failed to co-operate with the insurer is a question of fact, and the findings of the trial court will not be disturbed on appeal if there is evidence to sustain the finding.

Hunt, Palmer, Hood & Crassweller, Duluth, for State Farm Mut. Automobile Ins. Co.

Gannon & Morton, Hibbing, for Tony Tomlyanovich.

E. T. Binger, Hibbing, for George Tomlyanovich.

KNUTSON, Justice.

This action was commenced by plaintiff to recover damages for personal injuries alleged to have been sustained when an automobile owned and driven by defendant, in which plaintiff was riding as a passenger, left the highway. The defense of the action was undertaken by State Farm Mutual Automobile Insurance Company, insurer of defendant, under a reservation of rights, it being the contention of the insurer that it was not liable under a family exclusionary clause contained in the policy which will hereinafter be discussed. After the trial had proceeded a short time, the insurer, claiming that defendant was not co-operating with it as the policy required, denied liability on that ground also but offered to proceed with the trial if defendant so desired, reserving its rights to deny liability if it proceeded with the defense, or to step out and permit defendant to procure counsel of his own. At defendant's request, counsel for the insurer continued with the defense, and the case proceeded to completion. Plaintiff recovered a verdict, and thereafter judgment was entered in his favor for $7,105.12. The insurer having refused to pay, garnishment proceedings were instituted against it. The trial court found that the insurer was not liable under the family exclusionary clause and found against the insurer on the issue of co-operation. The garnishee and plaintiff each moved for amended findings or a new trial, and, all motions having been denied, both parties have separately appealed. The two appeals have been considered together here.

On Plaintiff's Appeal

The policy of insurance involved contains the following coverage and exclusion:

'I. Coverage A--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.

'Exclusions

'This policy does not apply:

'(e) Under coverage A, to any obligation for which the insured or any company as his insurer may be held liable under any workmen's compensation law; or to the insured Or any member of the family of the insured residing in the same household as the insured;' (Italics supplied.)

The facts pertinent to a determination of the applicability of the exclusionary clause are not in dispute. Plaintiff and defendant are brothers. At the time of the accident out of which the litigation arose defendant was 29 years of age and plaintiff was 27 years of age. Both were unmarried and resided in the family home at Leetonia Location, near Hibbing. The home and all furnishings were owned by the father of plaintiff and defendant. Also living at home were two other unmarried brothers, aged 20 and 25, and the father and mother, each 59 years of age. The mother prepared the meals, and all members of the family ate at the same table when they were home on time. The mother did the housework and laundry for all members of the family. They all received their mail in a common mailbox. At the time of the accident defendant was employed by the Great Northern Railway Company as a brakeman. Plaintiff was then unemployed. While there was no set arrangement for payment of board and room, both plaintiff and defendant did pay their mother and father. Defendant paid $60 to $70 per month during the summer months and plaintiff paid $50 per month for board, room, and laundry. Plaintiff and defendant each had a separate bedroom, but otherwise had free use of the house.

1. We are committed to the rule that, inasmuch as the language of an insurance policy is that of the insurer, any reasonable doubt as to its meaning must be resolved favorably to the insured. 3 Dunnell, Dig. & Supp. § 4659; Cement, Sand & Gravel Co. v. Agricultural Ins. Co., 225 Minn. 211, 30 N.W.2d 341.

Words used in contracts of insurance, however, like any other contract, must be given the meaning they ordinarily convey to the popular mind.

In Lohstreter v. Federal Life Ins. Co., 182 Minn. 298, 300, 234 N.W. 299, in construing the word 'lifeguard' as used in an insurance policy we said:

'* * * the court instructed the jury that 'a life guard, as the term is used in this policy of insurance, is an expert swimmer, employed (or stationed) at a public bathing beach or resort, to save those in danger of drowning.' This is the lexicographer's definition of the word 'life guard.' It is perhaps doubtful whether it is applicable in its strictness to the policy if in the common and prevailing understanding it has a different meaning. Williamsburgh City Fire Ins. Co. v. Willard, 9 Cir., 164 F. 404, 21 L.R.A.,N.S., 103. Imperial Fire Ins. Co. v. Coos County, 151 U.S. (452) 463, 14 S.Ct. 379, 38 L.Ed. 231, holds that the language in insurance contracts are to be given the meaning it ordinarily and usually conveys to the popular mind.'

In Elton v. Northwestern National Life Ins. Co., 192 Minn. 116, 121, 255 N.W. 857, 860, we quote with approval the following from Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 492, 52 S.Ct. 230, 231, 76 L.Ed. 416, 419:

'Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense."

See, also, Konschak v. Equitable Life Assur. Society, 186 Minn. 423, 243 N.W. 691; Gershcow v. Homeland Ins. Co., 217 Minn. 568, 15 N.W.2d 88; 3 Dunnell, Supp. § 4659, note 97a.

Similarly, a policy of insurance, like any other contract, is to be construed so as to give effect to the intention of the parties as it appears from the entire instrument. Dawes v. Brotherhood of Locomotive Firemen and Enginemen, 216 Minn. 411, 13 N.W.2d 28.

Having in mind these rules of construction, the question before us is: What do the words 'any member of the family of the insured residing in the same household as the insured' mean as used in this policy of insurance?

Many legal definitions of the word 'family' can be found, the meaning depending to a large extent on the field of law in which the word is used. See, for instance, Black, Law Dictionary (4 ed.) p. 727; Webster's New International Dictionary (2 ed.) (1947) p. 916; Funk & Wagnalls New Standard Dictionary (1945) p. 894; The Century Dictionary and Cyclopedia; 35 C.J.S., Family, pages 737 to 740; 16 Words and Phrases, Family, p. 186; Et seq.

It would be useless to attempt to base decision here on any definition of the word 'family' along without reference to the purpose intended to be accomplished by the exclusionary clause in which the word is used.

Most authorities hold that 'family' as used in indemnity insurance contracts is synonymous with 'household,' except possibly that it is limited to those members of a group having some blood relationship.

In Collins v. Northwest Casualty Co., 180 Wash. 347, 352, 39 P.2d 986, 989, 97 A.L.R. 1235, the Washington court said:

'* * * The word 'household' is defined by the dictionaries and the courts as the members of a house collectively; a domestic establishment, including servants and attendants. The word has been considered as synonymous with the word 'family.' The word 'family' is defined by Webster to be: 'The body of persons who live in one house, and under one head or manager.' While in a restricted sense the word 'family' may be used interchangeably with 'household,' there is a difference in the ideas suggested by the two words. The word 'family' conveys the notion of some relationship, blood or otherwise. In its most common use, the word implies father, mother, and children, immediate blood relatives; but the word is also used to designate many other and extended relationships.' (Italics supplied.)

In Home Ins. Co. v. Pettit, 225 Ala. 487, 488, 143 So. 839, 840, the Alabama court said:

'The word 'family' and 'household' are often used interchangeably. * * * Webster defines the word 'family' to be 'a collective body of persons who live in one house and under one manager,' and that meaning has been approved in many cases cited in the footnote found on page 866 of volume 12, Am. & Eng. Encycl. Bouvier's Law Dictionary, vol. 2, p. 1186, says that in common parlance the family 'consists of those who live under the same roof with the pater-familias,' and also cites different cases as authority for the definition of the word family taken from Webster. In the case of People v. Tait, 261 Ill. 197, 103 N.E. 750, the Illinois Supreme Court held that the word 'household' is equivalent to the word 'family."

In Rydstrom v. Queen Ins. Co., 137 Md. 349, 353, 112 A. 586, 587, 14 A.L.R. 212, cited by us with approval in Engebretson v. Austvold, 199 Minn. 399, 271 N.W. 809, infra, in holding that a nephew was a member of the insured's household the Maryland court said:

'The general definition of 'household,' it will be seen, when used as a qualifying word, is pertaining or belonging to the house or family.'

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