Opinion
April 11, 1966. —
May 10, 1966.
APPEAL from two judgments of the circuit court for Shawano county: ANDREW W. PARNELL, Circuit Judge. Reversed.
For the appellant there was a brief by Everson, Whitney, O'Melia, Everson Brehm of Green Bay, and oral argument by Philip R. Brehm.
For the respondent there was a brief by Lehner, Lehner Behling of Oconto Falls, and oral argument by Howard N. Lehner.
Frederick Karstedt, the only child of Theodore Karstedt and his wife, was born and raised in Cecil, Wisconsin. He graduated from high school in the spring of 1957 and purchased a 1951 Ford shortly after that. Frederick continued living with his parents, while working on an area farm, until September of 1958 when he enrolled at the Milwaukee School of Engineering. He attended this school for the full nine-month school year, staying first at an all-male residence house and then at a hotel. He spent the summer of 1959 with his parents in Cecil and again was employed on a farm.
In September of 1959 Frederick reenrolled at the Milwaukee School of Engineering and once more lived at a hotel. When financial difficulties forced him to quit school in April or May of 1960, he returned to Cecil and lived with his parents. He obtained employment of an engineering nature and traded in the 1951 Ford and bought a 1954 Buick on a conditional sales contract. He went back to school in September but further monetary difficulties compelled him to drop out within two weeks. Frederick stayed with his parents until voluntarily entering the service about February 22, 1961, on a three-year enlistment. He was twenty-two years old at the time. Before leaving he told his father, who was a mechanic, to run the Buick occasionally to keep it in good condition.
Frederick had never taken either car to Milwaukee while attending school, had parked whichever vehicle he owned at the time in a barn owned by his father utilized as a garage. The Buick was also kept in the garage after Frederick enlisted in the service. When he was at school Frederick left some clothing and personal belongings in his room at his parents' home. Virtually all of his possessions were kept there during his service tour. He spent some weekends and holidays with his parents during the school years. He did not pay board and room at any time and helped with chores when at home. Theodore Karstedt financed part of his son's education and also made a payment on the Buick when Frederick was in the service. Frederick had an allotment of his military pay sent to his mother, and she used a portion of this money to make payments on the conditional sales contract. He maintained a bank account in Cecil after entering the service, and both his driver's license and the Buick registration papers showed a Cecil address. He never notified the post office or the motor vehicle department of any change in address. First-class mail addressed to him at Cecil was forwarded by his parents to his military camp. Frederick registered and voted in Milwaukee for either the primary or final 1960 presidential election.
The father testified that he started the Buick at least every other week and sometimes once a week between February 23 and April 2, 1961. On April 2d he drove the car to a local gasoline station and had the tank filled. He was then either returning home or taking the car for a ride to loosen the bearings (the testimony is in dispute) when he collided with a vehicle in which the respondents were riding. The collision was allegedly caused by Theodore Karstedt's negligence. This trip was only the first or second time he had taken the automobile out of the barn, and he had never driven either the 1951 Ford or the Buick prior to February 23, 1961.
The Buick was uninsured, but a policy issued by appellant, Iowa National Mutual Insurance Company, to the elder Karstedt covering a 1957 Ford owned by him had a "Drive Other Car" provision which extended coverage to other cars driven by Karstedt except as to:
". . . any automobile owned by or furnished for regular use to either the named insured or a member of the same household . . . .
Trial was to a jury, but after the evidence had been presented the trial court, on agreement of the parties, made findings on the issues and decided that the exclusion did not apply. Hence, there was coverage under the policy with appellant. Appeal is taken from the judgments to that effect.
The issues presented on this appeal are whether the following findings by the trial court are against the great weight and clear preponderance of the evidence: First, that Frederick Karstedt did not furnish his automobile to his father for regular use prior to and on April 2, 1961.
Boehck Construction Equipment Corp. v. O'Brien (1966), 29 Wis.2d 649, 139 N.W.2d 650; Huber Glass Co. v. First Nat. Bank (1965), 29 Wis.2d 106, 138 N.W.2d 157.
Second, that Frederick Karstedt was not a member of his father's household on April 2, 1961.
According to the policy terms, appellant Iowa National will succeed on this appeal if either question is answered in the affirmative.
Although respondents do not argue this point, it should be noted at the onset that the exclusion clause in the policy is not ambiguous. Therefore, this is not an occasion to invoke the rule of strict construction against the insurance company in regard to the policy provisions.
Lontkowski v. Ignarski (1959), 6 Wis.2d 561, 95 N.W.2d 230.
Regular Use.
The policy in question excludes coverage in the event that Frederick Karstedt's car was furnished for the regular use of his father, the named insured in the Iowa National insurance policy.
Before Frederick left on his service hitch he told his father to "Keep the gas tank filled so moisture wouldn't get in it" and to "occasionally run it on the road." The father also understood these to be his instructions. It cannot be said that a direction to "occasionally run" a car is equivalent to permission to use the car regularly. Nor did Theodore Karstedt carry out his son's wishes in such a way as to regularly use the car. Between February 23 and April 2, 1961, he started the automobile at most once a week and drove it on either one or two occasions. The trial court found that:
"The use of the car was very sporadic and definitely restricted."
Citing Le Mense v. Thiel (1964), 25 Wis.2d 364, 130 N.W.2d 875.
Our conclusion is that the trial court's finding that there was no regular use of Frederick's car by the father must be affirmed.
Household.
In Raymond v. Century Indemnity Co., a case not cited in the trial court's opinion, a twenty-two-year-old, who had previously lived with his mother all his life, entered the army. Whether or not there was insurance coverage on the particular facts depended on the underlying question of whether the son was still in his mother's household. It was held that nothing had happened to destroy his status as a member of the household. Although there is authority to the contrary, this appears to be the general rule in most jurisdictions. Raymond was cited in the very recent case of Doern v. Crawford, where this court, after considering it and two other "household" cases, said:
(1953), 264 Wis. 429, 59 N.W.2d 459.
Shapiro v. Republic Indemnity Co. of America (1959), 52 Cal.2d 437, 341 P.2d 289.
Central Manufacturers' Mut. Ins. Co. v. Friedman (1948), 213 Ark. 9, 209 S.W.2d 102; Senn v. State Farm Mut. Automobile Ins. Co. (Ky. 1956), 287 S.W.2d 439; Mississippi Benefit Asso. v. Majure (1947), 201 Miss. 183, 29 So.2d 110; Allstate Ins. Co. v. Jahrling (1962), 16 App. Div. 2d 501, 229 N.Y.Supp.2d 707; American Universal Ins. Co. v. Thompson (1963), 62 Wn.2d 595, 384 P.2d 367; Detroit Automobile Inter-Insurance Exchange v. Feys (D.C. Cal. 1962), 205 F. Supp. 42; American Service Mut. Ins. Co. v. Pugh (8th Cir. 1959), 271 F.2d 174.
Ante, p. 206, 140 N.W.2d 193.
National Farmers Union Property Casualty Co. v. Maca (1965), 26 Wis.2d 399, 132 N.W.2d 517, and Lontkowski v. Ignarski, supra, footnote 2.
"The holdings of these three cases demonstrate that the controlling test of whether persons are members of a household at a particular time is not solely whether they are then residing together under one roof. Living together under one roof is a factor to be considered and must have occurred at some time. When not occurring at the time in question, the absence from the family roof must be of a temporary nature with intent on the part of the absent person to return thereto."
Doern v. Crawford, supra, footnote 7, at page 213.
and
"Whether the absence from the household is of long or short duration is immaterial except as it may give rise to an inference of intent to remain away permanently or only temporarily."
Doern v. Crawford, supra, footnote 7, at page 214.
Aside from the time spent in school and service, Frederick had always lived in Cecil. He had never established a permanent residence elsewhere. While away from Cecil he left unneeded personal belongings in his parents' home. After enlisting in the armed forces, he continued banking in Cecil, used a Cecil address for mailing and automobile-licensing purposes, and had a portion of his pay sent there. True, he apparently voted in the national elections while at school in Milwaukee in 1960. But after that date he returned to Cecil. In short, these and other factors demonstrate, with no inferences to the contrary, under the holding of Raymond and the test promulgated in Doern, that young Karstedt had not completely severed the "household" umbilical cord as of April 2, 1961.
The trial court's finding that:
". . . his [Frederick's] voluntary enlistment and entry into the service took him out of the household and he was no longer a member of it."
is against the great weight and clear preponderance and is in error.
That Frederick should be deemed to remain as a member of his father's household and that coverage should not be extended under the father's insurance policy where he is involved in an accident while driving his son's automobile (not specifically covered by the father's policy) is perfectly consistent with the basic purpose of provisions excluding from coverage liability arising out of the use of other automobiles owned, hired, or regularly used by a member of the insured's household. By the Court. — Judgments reversed.
As stated by Mr. Justice FAIRCHILD in National Farmers Union Property Casualty Co. v. Maca, supra, footnote 8, at page 405, the purpose of the "drive-other-car" provisions like the one in the Iowa National policy here "is to avoid coverage of several vehicles owned by members of the same family, who, by their close intimacy, might be expected to use each other's cars without hindrance and with or without permission."