*1 Dist., Aug. 19, 1959.] No. 23789. Second Div. Two. [Civ. JUZEFSKI, Appellant, JOHN v. THE WESTERN CASU- (a ALTY AND Corporation), SURETY COMPANY Respondent. *2 Appellant. and
Lee Freeman Earle K. Stanton for Bespondent. Frank Wickhem for interpretation of the FOX, P. J. This caseinvolves provisions policy extending of an insurance cover- automobile occurring with certain while the age, to accidents exclusions, driving a insured is car other than own. The trial court coverage held that the of the did extend to the ac- question. judgment plaintiff From such adverse cident appealed. has Keyes Seymour November, 1955, was the owner A. car which was with defendant. While Chevrolet insured driving his father’s he was in an Packard involved accident plaintiff. with the The father had insurance on the $5,000. Packard amount Plaintiff recovered $20,000 judgment Seymour Keyes on account paid and sum of on $5,000 accident and costs account company the insurance carried present brought on the father’s Packard. The action was then by plaintiff Seymour’s company, from recover defendant judgment. Recovery carrier, the balance due on the theory exclusionary provisions on the that certain was denied inapplicable provision made to the instant case extending coverage driving to accidents while the insured another car. pertinent provisions read as follows:
“V. Automobiles. Use Other “If the an who owns the auto- named individual ‘pleasure mobile or husband classified as business’ each or both of own such insur- automobile, wife whom said bodily liability, ance injury afforded this property damage spect payments with re- liability, and for medical automobile, applies any sub- said automobile other ject following provisions:... to the “ (b) agreement insuring apply: This does part “To by, frequent owned hired as by, hired automobiles or furnished for use to the named insured or a member of his household other than a private chauffeur or domestic servant of the named insured spouse.” Young Keyes, who was the case, witness testified *3 separated he that was from the in August, 1955, service and parents returned to the home of his in Burbank where he was staying at the time of the He accident. married and estab- following April. lished his home own the September, In after his discharge from the he started to school Army, and also part-time employment. secured He a owned Chevrolet which go he used to to school and work. His father owned a a pick-up Packard and go truck which he used to to and from Keyes, Sr., work. pleasure used the a Packard as car and Keyes the evenings. Seymour Mrs. also used it. drove the Packard on “about four joined Army. occasions” before he the discharge After prior his and to the accident he drove the special Packard “on occasions.” He the used Packard on occasions when he evening girl went out in the with his but every he did he time took her out. He used his own car the purpose. response ques- most of time for this to the per tion as to how week, Seymour often he used the Packard strictly testified “that would have to be an estimate due to that there was set principle no time or no set involved the up use of the ear. It to whether available, my it was or father let me it. might It be one week; time one ’’ might be three times average another week. It would around
121 periods, when he however, There were did not twice week. “even once week.” He did not have his father’s car use any regular arrangement his father for the use of the with Keyes necessary young It for to ask father’s Packard. every Permission, he to use it. how- permission time wanted except granted either the or when father mother had ever, was previous plans the that involved Packard. made trial that the excluded cover- court determined driving: (1) “Any age when he was assured him a regular use or member of his furnished for to” house- (2) any or member house- hold, exclusionary provisions (3) that the hold; and thereupon ambiguous. The that are not held the acci- from was excluded and dent judgment rendered company. for defendant argues Plaintiff decision do not find support in either terms of the evidence. are to be “The of contract understood in their words (Civ. ordinary popular Code, sense.” “The § person understanding ordinary an the standard used in construing (Arenson contract National insurance....” Co., 81, Auto. & Cas. Ins. P.2d Cal.2d [286 Co., Phoenix In Continental Cas. Co. v. Const. Cal.2d 914], 801, 437-438 57 A.L.R.2d stated policy: of an the cardinal rules of construction “It any ambiguity or elementary in insurance law that uncer tainty against in an insurance is to be resolved semantically If permissible, insurer. [Citations.] fairly given such will contract will be construction as achieve securing indemnity object of to the its insured the losses insurance relates. If the in to which the [Citation.] language which uncertain reasonable surer uses doubt against if the doubt relates to extent or it; will be resolved peril whether fact coverage, [cita person liability or the tions], amount [citations] protected language will be persons [citations], the understood sense, most benefit the insured.” in its inclusive exceptions “It rule and exclusions also the *4 liberally in strictly against insurer and favor construed (Arenson National Auto. & Cas. Co. Ins. of the insured. Co., Royal City Indem. supra; Monica v. 157 Cal. Santa Security In Osborne v. App.2d 50, P.2d 54 [320 Co., 94], Cal.App.2d this court stated Ins. policy that: “The of the construing an insurance presumed to be that of the insurer and when ambi- guous provide manner full is to be construed such as to coverage of the indicated rather than to risk narrow ” protection. (P. 207.) inquire
We shall first whether there is substantial support to evidence the trial court’s determination that the regular Packard was “furnished use to the named in ’’ sured, i.e., young to for if Keyes, finding adequately supported question the accident in would be excluded from and the should be affirmed. evidence The discloses son owned a Chevrolet that he drove to and from school and work and most of the time for social occasions. He used his father’s special Packard on girl occasions to take his out in evening. During some he weeks would once; use the Packard during might others it times, be three while in still others he ; it at not use all . . principle “. there was no set time or no set involved in the any the ear.” He did not standing arrangement have with his father for the Packard; necessary use of the it was permission to obtain his father’s each time he drove it. This support evidence does not trial court’s determination that regular Packard was furnished for use to the son. The use here obviously regular. described is It rather a casual special permission and occasional had be secured each (Travelers time the car was driven. Indem- nity Pray, Co.v. 204 F.2d necessary Next, determine whether the ex clusionary provisions ambiguous. in are For provisions again: out these we set convenience insuring agreement apply: “(b) This does not part by, frequent hired “To as by, automobiles or furnished for use to hired insured or member of his other than named household private chauffeur or domestic of the servant named ’’ spouse. Indemnity Pray, supra, Travelers Co. v. court was upon interpret language. called this identical exception “the clause in the held that undoubtedly ambiguous.” opinion in the re- Later provisions “quite ambiguous.” ferred to these A mere exclusionary reading provisions quoted of the above demon- strates the correctness the court’s characterization of them. They obviously unclear. ambiguity exclusionary provisions Illustrative *5 coverage apparently denies which aspect of the is that he or a member a vehicle which operating is the insured if or one the insured (other vehicle), than owns of his household regular regular or the for his furnished which is mean “his household” household. Does of his member to a house- part, does refer he is a or of which household hold of which he coverage varies extent of ? The is the head assigned meaning is upon the considerably depending trial court concluded “his household.” The phrase to accident the instant Seymour’s insurance did not cover being furnished alia, that the was reason, inter Packard for son’s) (the his mother, his a member of regular use of for the by that it owned and for the further reason household, Sey- son’s) As (the household. a member of his father, household, must the trial court not head of the mour was of which to mean household have construed “his household” unreasonable, the part. While this construction he is susceptible construction, phrase equally a more limited to exclusionary provisions under consideration do that the viz., not become by operative is owned the automobile unless the insured is to a of a household which furnished the head. This member refer- ambiguity, authorities which under the against the already made, be ence has been must resolved exclusionary provisions under considered, the insurer. So The apply of the instant cáse. do to the facts discussion company. It insurance was that of the clearly simple have stated have been a matter for it to being made. the household to which reference was is reversed. J., Ashburn, concurred. HERNDON, J. I dissent. regard I as a close and debatable whether the evidentiary
record support discloses substantial for the trial finding court’s that the Packard “furnished use to the named insured.” I incline to the view finding adequately supported. that this However, my primarily I upon base dissent the view that coverage in this case is clear un- excluded ambiguous provisions policy. reaching con- accepted entirely general clusion I have as correct the canons majority of construction opinion. as stated in the IAs read they contract, giving instant meaning words them generally ordinary popular understood “in their sense,” only interpretation. room one I find reasonable respect The added extended with specifically apply
vehicles other than that
insured does not
“any
the named insured or member
...
my
mind,
To
rea
household.”
natural and
sonable construction of the words “his
household”
they mean
“In
the household of which he is member.
normal
one’s
is the familial
speech,
household
or residential
*6
group
lives;
with which one
or child,
a wife
as well as the
pater familias,
(Farm
has a household.”
Bureau Mut. Auto.
Violano, Cir.,
695.)
2
692,
Ins. Co. v.
123 F.2d
“One of the
of
given
definitions
the
in
word ‘household’
Webster’s New
Dictionary is,
International
‘Those who dwell under the same
compose a family;
roof and
a
.”
domestic establishment.’ . .
Indemnity Co.,
(Island
541,
Fireman’s Fund
v.
30 Cal.2d
153,
896].)
547
173 A.L.R.
the term
“Whether
[184
‘family’
used,
‘household’
the term embraces a collection
single
persons
head,
of
as a
living together,
with one
group,
permanent
roof;
a unit of
character,
and domestic
under one
body
persons living together
a
of
‘collective
within one cur
tilage, subsisting
directing
in common and
their
to a
attention
promotion
object,
common
the
of their mutual
interests and
”
happiness.’
(Lumbermen’s
Casualty
social
Mutual
Co. v.
F.Supp.
Pulsifer,
249, 251-252;
41
Island v. Fireman’s
cf.
Indemnity Co., supra,
548.)
Fund
541,
30 Cal.2d
“Persons
together
family
dwell
as a
who
constitute a ‘household’
.”
. .
(Arthur Morgan,
495,
112
v.
U.S.
500
28
241,
S.Ct.
L.Ed.
living
parental
“We
do
doubt that
son
under the
though
roof is member of the household even
he has reached
majority
supports
(Ocean
himself
Accident &
...”
Guaranty
Schmidt,
270.)
46
269,
Co. v.
F.2d
Indemnity
Pray,
Travelers
Co.
125 ‘‘ robably leading particu [p] the on the case comments frequently involved, here and the case most problem lar narrow Indemnity Co., 1950, D.C. Md. Aler v. Travelers cited, is authority great weight is in accord “The of F.Supp. 620.” by Judge interpretation provision Chesnut with the F.Supp. 620, Indemnity Co., D.C. Aler Travelers Md. v. Casualty Surety Co., 211 (Campbell & v. Aetna ...” appellate appraises 736.) The F.2d Louisiana “Bearing in majority opinion Pray case follows: interpretation the reason mind established rules jurisprudence, in the exclusion clauses as shown cited such placed interpretation upon the exclusion we believe that Pray alone majority in stands case clause great weight authority is contra.” but error. Maryland Casualty 123, 139- Co., supra, (Leteff 91 So.2d fully agree rule ambiguity I with the While uncertainty in an is to be resolved insurer, ambiguity by process I think it incorrect to find suggesting quite interpretation a'strained and unnatural possible as the basis conflict. judgment. I affirm petition hearing Respondent’s Supreme Court *7 October 1959. denied