Marlowe v. RELIANCE INSURANCE COMPANY

190 S.E.2d 417 (1972)

15 N.C. App. 456

John H. MARLOWE et al. v. RELIANCE INSURANCE COMPANY.

No. 7228DC392.

Court of Appeals of North Carolina.

August 2, 1972.

Certiorari Denied October 3, 1972.

*418 Joseph C. Reynolds, Asheville, for plaintiff appellants.

Clarence N. Gilbert, Asheville, for defendant appellee.

Certiorari Denied by Supreme Court October 3, 1972.

CAMPBELL, Judge.

To say the least, the procedure in this case was unusual. After the parties had stipulated that the judge try the case without a jury, they then proceeded with a jury trial. A judgment was entered wherein the trial judge found facts and made conclusions of law as though there had been no jury trial and then allowed a motion for a directed verdict and dismissed the three actions. Thus, a combination trial was conducted, which is novel.

Despite the novel procedure, we do not find any error in the result obtained.

The stipulated facts and the uncontradicted evidence show:

1. Jackie Lee Weaver and Betty Farmer Weaver were married October 11, 1963 and on July 27, 1968 had three children.

2. Some two months before July 27, 1968, Betty Farmer Weaver and Jackie Lee Weaver separated and Betty Farmer *419 Weaver moved into a two-bedroom trailer located on Edward Street in Black Mountain, North Carolina, with her three children. Jackie Lee Weaver paid the rent on the house trailer the first week but had not paid anything thereafter and on 27 July 1968 was not paying the rent or supplying any other support for his wife and children. Jackie Lee Weaver never lived with his wife in the trailer and was living in a different household. They did become reconciled and resumed living together in April 1971.

3. Betty Farmer Weaver owned a 1957 Chevrolet automobile which she had purchased in Hickory, North Carolina, shortly before moving to Black Mountain. The record title to the Chevrolet automobile recorded with the Commissioner of Motor Vehicles of the State of North Carolina was in the name of Betty Farmer Weaver. It was this vehicle which the defendant insurance company had insured under an assigned risk policy, and Betty Farmer Weaver was the named insured in the policy.

4. The insurance policy issued by the defendant insurance company to Betty Farmer Weaver defined an insured, "[w]ith respect to the insurance for bodily injury liability and for property damage liability for unqualified word `Insured' includes the named Insured and, if the named Insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named Insured or such spouse or with the permission of either."

5. During the two months prior to July 27, 1968, that Betty Farmer Weaver was living in the trailer in Black Mountain, she did not know where her husband Jackie Lee Weaver was living, and he was not a member of her household. He did not drive the automobile during that time and had never driven it as he had no driver's license, and Betty Farmer Weaver had told him he could not drive it.

6. On 27 July 1968 Jackie Lee Weaver went to the trailer where Betty Farmer Weaver was living, and while Betty Farmer Weaver was in one of the bedrooms, he took the keys to the automobile which were lying on a table in the living room. After taking the automobile keys he went out to the automobile which was on the street and drove off despite Betty Farmer Weaver's hollering at him not to take it. Betty Farmer Weaver went to her mother's home where there was a telephone and telephoned the North Carolina State Highway Patrol and reported the taking of her automobile. Jackie Lee Weaver thereafter was involved in an automobile wreck in which the three plaintiffs sustained their respective damages. At the time of the accident Jackie Lee Weaver had another woman in the automobile with him.

The trial judge found as a fact that on 27 July 1968 Jackie Lee Weaver and Betty Farmer Weaver were married, but on that date had been living separate and apart for about two months in different households; that on 27 July 1968 Jackie Lee Weaver took the 1957 Chevrolet automobile from the street near his wife, Betty Farmer Weaver's residence without the owner's permission expressed or implied, contrary to the specific orders of the owner, and at the time of the accident with plaintiffs, Jackie Lee Weaver was not in lawful possession of said Chevrolet automobile.

The plaintiffs in their respective complaints alleged that Jackie Lee Weaver was an insured under the provisions of the policy issued by the defendant insurance company. This allegation was denied by the defendant.

"In an action to recover under an insurance policy, the burden is on the plaintiff to allege and prove coverage.. . ." Brevard v. State Farm Mutual Automobile Insurance Co., 262 N.C. 458, 137 S.E.2d 837 (1964).

*420 In the instant case the plaintiffs' allegations were all right, but their proof was lacking.

There was no evidence at all that Jackie Lee Weaver was driving the automobile with any permission of Betty Farmer Weaver. On the contrary he took the car and was driving it against her express orders not to do so.

Neither was there any evidence that Jackie Lee Weaver was a resident of the same household with Betty Farmer Weaver. "Resident" is a word with varying shades of meaning as pointed out in Jamestown Mutual Insurance Co. v. Nationwide Mutual Insurance Co., 266 N.C. 430, 146 S.E.2d 410 (1966). In every case, however, it requires some kind of abode. In the instant case Jackie Lee Weaver had no abode whatsoever with Betty Farmer Weaver in the trailer home where she was living and had been living for at least two months before the accident in question.

The plaintiffs failed to prove that Jackie Lee Weaver was an insured and had coverage under the terms of the insurance policy issued by the defendant.

The evidence supported the findings of fact made by the trial judge, and those findings of fact supported the conclusions of law, and the judgment dismissing the causes of action brought by the plaintiffs. The stipulated facts and the evidence, when viewed in the light most favorable to the plaintiffs did not present sufficient evidence to be submitted to the jury to sustain the plaintiffs' position; and, therefore, a directed verdict in favor of the defendant was appropriate.

We have reviewed the various assignments of error presented by the plaintiffs and do not find any merit in any of them.

Affirmed.

MALLARD, C. J., and BRITT, J., concur.