Opinion
No. 28561.
July 14, 1953.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, EUGENE J. SARTORIUS, J.
Goldenhersh Goldenhersh and Samuel J. Goldenhersh, St. Louis, for appellant.
Sluggett Sluggett and John T. Sluggett, III, St. Louis, for respondent.
This is an action on a fire insurance policy which covered the household and personal property belonging to the insured and members of her family. Some of the contents of plaintiff's residence were destroyed by fire and she brought this suit on the policy to recover for the loss. There was a verdict and judgment for her in the sum of $1,560, from which judgment the defendant prosecutes this appeal.
Catherine Brown lived at 2332 Chestnut Street, in the City of St. Louis. With her there resided a man named James Hubbard and a boy, two and a half years of age, named James Hubbard, Jr. The child was the illegitimate son of Hubbard and Catherine Brown. She had lived with Hubbard for over three years at the time of the trial. Catherine Brown had no income of her own and did not work, but Hubbard, who was a bartender and earned $100 a week, supplied the money for furnishing the house in which they lived.
In 1950, the defendant company issued to the plaintiff a fire insurance policy. She was named as the insured and the policy covered loss of household and personal property situated in her dwelling and belonging to her and any member of her family. On May 13, 1951, while this policy was in force, a fire destroyed some of the contents of the house, and this suit was brought to recover the value of the property destroyed.
The plaintiff testified that the value of the contents destroyed was $2,485, of which amount $1,023.50 was for the destruction of clothing belonging to Hubbard.
The case was submitted to the jury with an instruction to find for the plaintiff if they found that the insured and a member of her family were owners of the property destroyed. This was followed by a definition of the word "family", which is as follows:
"The Court instructs the jury that by the term `family' as used in these instructions, the Court means, any number of persons more than one, living together under the same roof with some one of their number as head who controls the affairs of the household, and upon whom the others or some of them, are by reason of some legal or moral obligation dependent."
The only question before us is whether or not Hubbard was a member of Catherine Brown's family under the terms of the policy. We are cited to a number of cases, by the respondent, which seek to define the word "family" and employ about the same general terms used by the court in the above instruction. Dalton v. Poinsett, Mo.App., 164 S.W.2d 124; Birch v. Birch, 112 Mo.App. 157, 86 S.W. 1106; Elliot v. Thomas, 161 Mo.App. 441, 143 S.W. 563; Ridenour-Baker Grocery Co. v. Monroe, 142 Mo. 165, 43 S.W. 633; Cieslinski v. Clark, Mo.App., 223 S.W.2d 139; Manning v. Driscoll's Estate, Mo.App., 174 S.W.2d 921. Some of these cases have to do with the Homestead Exemption Statutes, but most of them relate to claims for services rendered during the lifetime of a decedent. In such matters, involving a claim made for services rendered to a person of the same family against the estate of that person after death, the services are presumed to have been gratuitous in the absence of proof to the contrary, and under such a situation the word "family" has been given a very broad meaning. But, as stated in 35 C.J.S. p. 737, it is a word of "great flexibility and is capable of many different meanings according to the connection in which it is used". No case has been called to our attention where a meretricious relationship has been graced by the name of "family", and the word as used in the policy in its most liberal interpretation must have meant persons of the insured's household bearing some kinship to her. It cannot be construed to mean those in illicit cohabitation, and Hubbard's belongings were not covered by the policy.
It is said by the respondent that when there is any doubt about a family relationship, it is a question for the jury, and we are cited to the same cases. On this point the cases refer to situations where an issue of fact is to be determined before as a matter of law the relationship is established. The present case presents no such problem. The plaintiff was continually addressed by her lawyer as Miss Brown. She said she was not married to Hubbard. There was no issue of fact and since Hubbard was as a matter of law not a member of her family within the meaning of the policy there were no doubts for the jury to resolve.
It was, of course, incumbent upon plaintiff to make affirmative proof of the loss that she claimed to have sustained. As to those articles belonging to her she did this, but the court erred in not restricting her claim to her own property.
For the reasons stated, the judgment must be reversed and the cause remanded for a new trial. However, Section 512.160 RSMo 1949, V.A.M.S., provides that no new trial shall be ordered as to issues in which no error appears. May v. Hexter, Mo.App., 226 S.W.2d 383, loc. cit. 388. Since the fact that the policy was in force when the fire occurred and proof of loss was made by the insured has been properly determined the cause should be retried only upon the question of the amount due the plaintiff for the loss of her own property covered by the policy.
It is the recommendation of the Commissioner that the judgment be reversed and the cause remanded for a new trial solely upon the issue of the plaintiff's loss.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed and the cause remanded for a new trial in accordance with the recommendation of the Commissioner.
BENNICK, P. J., ANDERSON, J., and DEW, Special Judge, concur.