*1 Shirley Ann HOLLOWAY and G. HOLLOWAY

v. FARMERS INSURANCE EXCHANGE UNITED STATES FIDELITY AND GUARANTY

COMPANY 481 S.W. 2d 5-5892 Opinion delivered June

[Rehearing July denied 1972.] Murphy, Taylor, appellants. ér Carlisle Ledbetter, Putman, Davis ir Bassett & and Shaw appellees. Conley Byrd, Appellees Farmers Insurance Justice. Exchange Fidelity Guaranty and United States Com- pany declaratory judgment holding ap- obtained a that pellant Shirley Ann was not “a resident of appellant Billy the same household” that her husband G. Holloway occupied injuries at the time the the Mrs. was therefore not an insured under Pay provisions Medical and Uninsured Motorist policies. two Mr. and Mrs. for reversal contend findings contrary are to the law and the Chancellor’s the evidence.

Admittedly be covered if she comes within the definition of “named insured” contained policies. in the Exchange Policy

The Farmers Insurance defines “named insured” as follows:

899-D Declarations in item of the named “If the insured *2 individual, includes ‘named insured’ an term spouse the same household.” if a resident of his policy provides: 8c G. The U.S.F. in individual named means the

“NAMED INSURED his and also includes 1 of the declarations item spouse, household.” if a resident of the same marriage Mrs. of Mr. and that the The record shows marriage “ups Holloway first had and downs.” Their its in One child born resulted divorce. one child was to which moving marriage. to After second was also born to their with Wichita, Kansas, home Bill moved into the Carlisle marriage to his to live there after them. He continued Holloway 1969, in February 15, Mrs. Alicia. On or about Phoenix, go company to to left Wichita of the Carlisles Admittedly in has no realtives Mrs. Arizona. allegedly injured motor uninsured in an Phoenix. She outing 29, 1969, some on an to vehicle on March while motorcycle Yuma, Arizona. races at February 25, 1969, Hollo- Mr.

It is admitted that on way signed complaint divorce, in Kansas on a for filed by warning 10, had order. On March 1969. Service was Fayetteville, April Arkansas, hospital 25, 1969,while still in the separate petition a Mrs. filed parties alleged had in that the maintenance which she separated 50, 1968, had that she been been a resident of Arkansas for since December and days.

more than were her husband that she and Mrs. testified discussion, problems having that after some marital agreed and get go Phoenix and that she would it was away February Bill left on for awhile. She in that she considered wife a and his Chevelle Carlisle present left, her husband was be her car. When she money Including had gave that she $50 $40. they had, hundred had some six and what the Carlisles leaving case, only a suit dollars between them. She took sewing machine, personal things, an a the rest of her understanding There was an accordian and furniture. 899-E go

between her and her husband that the children would arriving grandparents gone. Upon to the while she was motels, in Phoenix she and the lived in different Carlisles taking so after their in restaurants. In week or meals arriving Phoenix, bartender her Chevelle borrowed they pur- just it. for chased a a minute and wrecked Thereafter transportation. long after Not 1950 Ford got they got Phoenix, the of the Bill in trouble with Carlisle placed jail. On week-end authorities accident, pregnancy, Carlisle, had Mrs. because of her gone leaving, however, back to her folks. Before agreed Mrs. Hollo- Carlisle Mrs. way Monday, following Bill contact Carlisle the *3 Holloway after which she explained return to was to Wichita. Mrs. directly had not talked Mr. Hol- she loway while done she was in Phoenix that she had but indirectly through so a mutual asked friend. When why replied: used was the she the mutual friend she “That purpose away going from whole out there be was to each other and not to reference cord shows: to each With talk other for awhile.” long

how she was to in Phoenix the re- be you part When left for Phoenix in the latter “Q. February you Holloway ’69, dis- and Mr. long you stay separated? cussed how “A. Yes. long How was that?

“Q. approximately “A. I was be out there two weeks. you stayed longer, out, As it turned it that cor- “Q. rect?

“A. Yes. necessary why Holloway was it know Mr. Did “Q. longer weeks? stay than two you to Betty “A. Yes. him him that called and told was in trouble.”

899-F acquainted became While Phoenix Mrs. suggestion Virginia Virginia Andrews. At the with went with a Arizona. She had Yuma, group motorcycle to the races at group except not met of tbe Vir- Saturday, ginia Yuma, before that time. Enroute to on a injured anything thereafter she was until the and did not remember Tuesday,

following when she saw her husband standing transported over her bed. Mrs. Fayetteville, air ambulance from Arizona to Arkansas. Fayetteville, every week-end, At Mr. her visited —commuting employed. from where On Wichita he was April 25, she learned for the first time that her husband had filed the divorce suit in he wanted Because Wichita. parents’ Fayetteville to take the children from her home in lawyer to Wichita she called her something asked him to do keep being the children from removed separate call, the state. As a result of that maintenance Admittedly suit set out Holloway above filed. Mr. Mrs. 8c living together. are now February Mr. testified that his wife left on taking 1969,with the Carlisles the Chevelle and leaving one suit case. Her had been he was discussed and present gave time, at the fact he Be- $30 $40. —in fore she left he had called her mother and ar- made rangements grandparents keep for the the children *4 gone. while she was Mr. admitted that he and eye eye things his wife had not seen to on a lot of up trip, when asked led to what the Phoenix he stated: “Well, she said she more or to less kind wanted get away just exactly you for awhile and know— see — do, what she wanted to whether to or not wanted go marriage we ahead with her or not or whether trip it, would terminate so where this Phoenix this is come about.”

According Holloway, Holloway left on to Mr. understanding friendly or the more less terms with time in two or three weeks. At the she would be back she wig, leaving left, suitcase, she took one accordion, than the indirect communication etc. Other Betty, with Bill sister Carlisle’s he did not hear 899-G accident,

her until the he flew out to Arizona to be with As accident. soon as he heard the her. He filed the suit gotten divorce before he heard that Bill Carlisle had into filing trouble with the law. With reference the to of the following: divorce the record shows the you lawyer Now when went the to file suit “Q. you divorce, I take it that time at that had made up your you stay mind that did not want to married Shirley? really. Well, divorce, “A. I more or less filed that actually stayed away longer think, I because she’d really planned that what we’d I and was kind of mad. guess my authority something.”

I I wanted to show Appellees, support declaratory the Chancellor’s judgment rely upon Insurance, decree, § 42: Couch on 2d and the case of 78 v. Automobile Ins. Co. of Neidhoefer (7th 1950), Conn. Hartford, Cir. F. Both 2d 269. equate “residing authorities in the same household” and policy provisions referring similar to domicile. See Friedman, also Central Mutual Ins. Co. v. Manufacturer’s 9, (1948). Ark. S.W. Couch Both and the 2d 102 controlling recognize case that the issue in de- Neidhoefer termining policy provisions coverage under such possessed departing family. intent member of the departing spouse words, In other remains a resident departing of the household unless intent of the mem- disrupted ber be that the household be or his domicile therein be terminated. parties separated case, In Septem- Neidhoefer 12, 1946, departing spouse sep-

ber commenced her 3, 1946, arate maintenance action on October time of the up loss on December she had taken making her abode elsewhere—in fact a claim for the losses “My separate she stated: income is from maintenance *5 my separated from husband. . .from whom I have been living apart September from since and 12, since 1946.” holding In that Mrs. Neidhoefer was not of a member family the 9, 1946, household on December the court stated:

899-H perhaps important control- the think “We ling character instant the of situations feature departing of possessed by member the intent the is a family. course, it is not to visualize Of difficult might home leave a wife where a situation for her status still retain time and a considerable household, in- family member away other or for some a visit stance, on if she separation should purpose. In such a situation the husband only the consent with be not but part wife to return. intent on with the however, case, see no reason we the instant In sep- Neidhoefer, she when or infer that think September and home on her husband arated sep- making than such other intention permanent.” aration showing had taken that Mrs. there is no

Here up her husband. had with the one she abode other than an husband with the were left the children The fact that with Holloway’s understanding mother that Mrs. an very cogent gone is a while she was them take care of temporary trip was of a to Phoenix indication that nature. standpoint from this viewed the record is

When testimony husband that of her together purpose trip for the departed to Phoenix on the hold- away awhile, find the Chancellor’s getting* we of ing the the the household not a resident that she contrary law and both the the accident time of evidence.

Reversed. Fogleman dissent.

Brown, JJ., and Jones, dissenting. agree Justice, I cannot Fogleman, A. John that the holding contrary chancellor’s in this case was either the place, law or the In evidence. I do first question not see how a of law is involved. Even if the policy properly strongly against clause is construed as

899-1 it, the question the construes majority insurers as

the the made finding by whether fact this court is before of evi- clearly the the against preponderance chancellor I with the dence. have no the quarrel construction of but I do not the policy, agree, as seems to majority sug- household, that a wife is a resident of her gest, husband’s law, a matter of are parties until the divorced. I also on the the I of think disagree question preponderance. the that the given post-re- has majority post-accident, conciliation, the of interested self-serving testimony par- full given ties no attention to the weight evidence determinative, i.e., that should be the actions and declara- of the parties tions before the unfortunate I collision. submit the chancellor that in find- perfectly justified the actions of ing these parties carry substantially than greater weight testimony which upon major- relies. What ity Holloways did I speaks so loudly, do not see how a court of can equity hear what now they or a say, can chancery court be held in error for not doing so.

The us decree before contains this recitation: defendant, That Shirley Ann Holloway, defendant, resident the household of the G. Holloway, also known as Bill on March Holloway, 29, 1969, and was not on said date an insured under No. Policy issued Farmers Insurance nor under Exchange Policy No. issued AF8608S67 by United States Fidelity Guaranty Company. The chancellor made specific in- of fact. findings They clude the following:

I have no difficulty in under of- finding, proof fered, that Mrs. Holloway was not a resident household of Mr. time the wreck took and this place casualty occurred. I’m not un- mindful the deposition testimony both of Mr. and they weren’t serious really about their actions, respective divorce and the separa- tion awas friendly sort of and more for thing,

899-J simmering problems working than purpose out they get genuine breach; cannot still of a evidence complaints. respective Mr. Hol- divorce around their days *7 complaint loway some for divorce filed his Holloway left, evi- other and absent after Mrs. dence, proper, I assuming would be that evidence good cause it stated a to assume that constrained am of the laws of Kansas. action under Holloway file her suit didn’t Mrs. true that It’s very accident, close at and a after the divorce until period Mr. of time coincident with what Still, April reconciliation, says was their actual 25th. alleges separation in complaint either divorce part December, early Dec- January the latter of or stated 30th, recitations ember and contains which Arkansas. laws under of action cause fact, them, Now, one of after I don’t think either really say, “Well, didn’t mean and we can look back really really separated. weren’t weren’t We that. We really other, weren’t serious mad at each about these divorce fact, and we in cases”; and because truth question they living apart. There is some were complaints how as to the two divorce as between says they separate apart. long from She lived and says April 25th, he December 30th to February days 10th, difference. to 60 15th to March respective they according were, event, to their In apart, separate living statements, each sworn proved, alleging grounds which, entitle if during period before, both to a divorce subsequent of, to, time the automobile accident. say, problem you stop there, So, no there is as I if findings, and I do Mrs. about find that in the lan- the same household was not a resident of language guage policy, and the same of the USF&G policy, the same house- in the Farmers a resident of * * * hold. * ^[*] ^[*] respective But with the definition policies, which is carried relative down in Parts into I section, I motorist think makes uninsured it finding dear, it was not a resident a factual Mrs.

of her husband’s household at the time of the accident. I feel that was not “In- an coverage. sured” under the uninsured motorist preponderance I a clear submit that the evidence actually supports findings findings, the chancellor’s and that the certainly against clearly preponder-

were ance of the evidence. Arkansas, was a native of

left the state when she and her husband moved to Wichita February they 1968.Almost as soon were established there, Holloway, Carlisle, a friend of Mrs. moved brought into their home and later a bride there. The *8 Holloways larger even moved into a to house order him. accommodate arose Difficulties soon between the Holloways, and, satisfactorily reason, for some ex- plained, she decided that needed a vaca- approximately tion from her husband of two weeks which company was to be taken in of the Carlisles in Phoe- According Holloway, nix, proposed Arizona. to Mr. she up during mind, absence, that each make to his her whether stay automobile, married or not. She took an which money hers, she and considered a sum of had which been augmented by her husband’s contribution of to $30 $40 taking left, February Carlisles, and sometime about enough, Strangely Billy Holloway 15, 1969. testified that Dodge a on automobile which one of the insurance policies had involved been should issued have been “titled” Carlisle’s name. Mrs. admitted possibility that there was then a she would that divorce During Bill when she left. this brief vacation hopping and while she and the two were Carlisles Billy looking one motel to another was for Carlisle employment, acquainted she became so well with a bar- tender at bar a and restaurant which she and her com- frequented that loaned her panions she car to him for “justa during completely minute,” which time he wrecked bought it. She testified “we” then model transportation. Ford automobile It in late Feb- ruary early got March 1969 that Carlisle into authorities, with the Arizona as a result of which trouble forced to leave the motel where his he was wife Shirley staying. why required were this Just Shirley Holloway to extend "vacation” from two mystery. weeks remains a We are not favored six with Shirley Holloway proposed did, information as to what help do, or could do to Carlisle extricate himself particularly law, from the toils of the after Carlisle’s pregnant stayed home, wife had to come back get “squared away.” any rate, him At she was not so undertaking involved in this that she was unable on March motorcycle Yuma, 29, 1969, to attend the races at whither newly acquired friends, bound male and she female, tragic date of the accident. on Billy Holloway Meanwhile, had taken in another single male roomer two weeks after his wife left. Because employed of the lawyer marital difficulties he had also Holloway’s verifying to file a divorce suit. affidavit his complaint February 25, 1969, was dated but the suit was 10, 1969, not filed until March at which time either a two- or-three-week “vacation” should have been terminated. Billy Holloway Shirley said he filed the suit because stayed away longer planned. than verified, He under allegation oath, Shirley his had left his home on February that, He concerned, 15. said as far he as was he he had done all he could do and it was all over when lawyer’s only remained, left the It said, office. he *9 lawyer pursue necessary procedures the to the and advise him that, when he was a divorced man. He admitted re- gardless present intentions, of his he was serious about filing the of the suit.

Billy Holloway go did to Phoenix when he learned Shirley’s injuries. Still she did not return to his domi- cile, hospital even after her release from the in Phoenix. Washington residence, She went to her native first to Hospital Fayetteville, General in where she had lived going parents’ Wichita, home, before to and then to her Fayetteville. place also in children This was also the where her pursuant agreement

were, par- to between their proposed ents at the time the “vacation” was Billy Holloway. Shirley patient told while she was a Fayetteville hospital the that he had suit. filed divorce appear any It does not that there had been serious dis- marriage cussions relative to the its deteriorated Billy rehabilitation that until time. visits made weekend Fayetteville during period, to this the and thereafter Shirley two discussed the situation. first referred to her by saying together,” return to Wichita and the “we were back between discussions her and her husband were talking they go referred to as about whether back together. say admitted, least, She to there uncertainty still about the until matter after she filed her Billy Holloway divorce suit. in described conversations go the same terms. Even when she did to Wichita with him, it reconciliation, was on the basis a trial accord- ing Billy. to Holloways reconciliation,

Before this trial both had separation to dismiss divorce suits in which been had alleged. Shirley Holloway Billy testified that as soon as lawyer suit, told her of his she called him asked particularly it, what to do about view the that taking fact Billy planning she was convinced that on the children back to She Wichita. testified told that she lawyer represent that she wanted him to her in the suggested pos- lawyer pending divorce suit and sibility of a if countersuit that was what she wanted do. Surely alleged it was no mere coincidence that resi- she period requisite place dence in the lived place Wichita, until the removal to where her children had been since the commencement of the “vacation” and place being injured. to which she returned after significant Holloway only

It also seems that Mrs. conveyed through word of her whereabouts her husband sister, Carlisle’s but an never intimation of intention return to his domicile. many have, given pro- occasions, We on the ancient speak judicial verb “actions louder than words” sanction. recently

As as Charisse Eldred, v. Ark. S.W. 480, we said: 2d *10 question It is true that the of intention is one of fact.

903 supra.[1]Appellant places great Melton, Phillips v. upon own his intention. The reliance declarations of however, question intention, to be ascertained is of by person only by of the involved not statements “voting” concerning Phil residence. his his conduct recognized lips supra. Melton, that cir We have protestations v. may purpose cumstances belie accept claims finder not bound to that the fact is contrary point to a of intent when the circumstances conclusion. 440, Dent, Williams 181 S.W. v. Ark. 207 person The declarations of the whose domicile 2d 29. self-serving dispute may or residence purpose for a is be species and are sometimes called lowest * * * subject. [Citing quality of or cases.] evidence on the by They prevail borne out acts. cannot unless Hogan 412; Davis, 763, See v. Ark. S.W. 2d 243 422 County County District Pike Board Pike School v. 72; Education, 9, 444 Ark. S.W. 2d 28 247 C.J.S. Domicile, 45, 18. acts are inconsistent § When person’s declarations, control, will the acts yield to to be drawn declarations must the conclusions * * proved. *[Citing from the facts and circumstances cases.] place is The exercise one’s elective franchise necessarily as to one’s intent on the conclusive voting pur- question of domicile residence for poses, certainly important, may but it be the * * * subject. [Citing important most evidence on the Hogan supra, Davis, In v. we said that cases.] executing registration in another voter affidavit registrant state the had left the matter of his resi- open seriously dence” not to doubt. principles applying above

We had little trouble Hogan David, stated in such v. Ark. cases 243 why they applicable I do not see are not S.W. 2d 412. here. I would affirm the decree. I Brown and am authorized state that Mr. Justice opinion. join in this

Mr. Justice Jones [1] 222 Ark. S.W. 2d