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Declaratory judgment. Floyd Superior Court. Before Judge Scoggin.
State Farm Mutual Automobile Insurance Company (hereinafter referred to as State Farm) flied a complaint for declaratory judgment in the Floyd Superior Court against Robert L. Spann, Mary Elizabeth Griffin, Harland Griffin, and Travelers Insurance Company (hereinafter referred to as Travelers).
The complaint alleged: that on October 18, 1971, the defendant Spann was a passenger in an automobile owned and operated by Gary H. Cox to whom State Farm had issued an automobile policy providing, inter alia, uninsured motorist coverage; that while the defendant Spann was a passenger in the automobile it collided with another automobile being operated by the defendant Mary Elizabeth Griffin, which collision resulted in injuries to the defendant Spann; that the defendant Spann filed suit against Miss Griffin and her father in the State Court of Floyd County; that the automobile being operated by Miss Griffin was owned by her father and was being operated as a family purpose automobile and was being driven at the time of the collision with the consent of her father and as his agent.
The complaint further alleged that the vehicle being driven by Miss Griffin was covered by all automobile liability policy issued by defendant Travelers to Mr. Griffin; that in the suit brought by Spann the defendant Travelers had undertaken the defense on behalf of Mr. Griffin but had refused to provide any defense for the defendant Miss Griffin and had denied in its answer that Miss Griffin was driving the automobile with Mr. Griffin's consent or as his agent and further denied that the automobile was a family purpose automobile. The complaint then set out that in the event that the policy issued by Travelers does not cover the defendant Miss Griffin then she is an uninsured operator of the automobile and that the plaintiff State Farm in order to protect itself must either file an answer for Miss Griffin or intervene in the suit on its own behalf.
In the answer of the defendants Mr. Griffin and Travelers it was admitted that the automobile was covered by an automobile liability policy issued by Travelers but denied that the coverage was afforded to Miss Griffin.
The Travelers' policy in question contained the following provision with regard to persons insured: "(1) the named insured and any resident of the same household, (2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission."
From the depositions of Miss Griffin and Mr. Griffin the following facts appear. (1) Miss Griffin was 16 years old, her mother was dead, and she was living with her father and stepmother, Mrs. Nellie Ruth Griffin, at their home in Dalton, Georgia, when the car was purchased, and she was a part of his family and paid him no board or rent. She was a member of his household and drove the car as a member of his household in and around Dalton. (2) Her father made all of the arrangements for the purchase of the car, went down with her to get it, paid for it with the social security money she was getting because of her mother's death and which money he held in trust for her at the bank, as guardian, and over which money he exercised complete control. (3) He took the title to the car in his name, kept the car at his house, and had the car insured under his family insurance policy, which was issued in the name of his wife. His wife went with Miss Griffin to get the policy. (4) He bought the car mainly for her to go back and forth to work, but so long as she drove it around Dalton he did not insist on her getting his permission to do so, and he knew she was driving it around Dalton for purposes other than going back and forth to work. He controlled the use of the car and took the keys to it away from her if she disobeyed him. (5) He took the keys away from her the week before she ran away to Rome for driving the car to Cleveland, Tennessee, and being out Saturday night, but he gave the keys back to her the next day. He also asked her to bring him the car on the next Monday, the day she ran away, because she stayed out late that Saturday night, and he told her he was going to take the car away from her and sell it back to the dealer. (6) She drove to Rome on that Monday without telling her father, and without his express consent, got an apartment in Rome and had been there two weeks when the collision occurred.
State Farm moved for a summary judgment based on the policy and the two depositions. The trial judge granted State Farm's motion for summary judgment as to all parties. From this judgment appeal was taken.
In this court State Farm contends the trial judge correctly granted its motion for summary judgment predicated on the following contentions: (1) that Mary Elizabeth Griffin is a named insured; (2) that she was a resident of the same household of the insured named on the original policy; (3) that the insured car was a family purpose car and that Mary Elizabeth Griffin was using the car with the permission of the named insured.
1. State Farm contends that the amendment to the Travelers' policy which added Mary Elizabeth Griffin as a driver of the vehicle made her a named insured. The policy defines a named insured as "any individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household." The only person named in the amendment to the policy under Item 1 is Nellie Ruth Griffin the spouse of Harland Griffin. Thus, there is no merit to the contention.
2. Was Mary Elizabeth Griffin a resident of the same household of the insured under the Travelers' policy? Georgia law provides that the domicile of the minor shall be that of the father and that a person non sui juris "can, by no act of volition of his, effect a change of his own domicile." Code 79-404, 79-407. Nevertheless, residence and domicile are not synonymous. As has been pointed out a person may have two places of residence but only one domicile. Residence means living in a particular locality and simply requires bodily presence as an inhabitant in a given place. Black's Law Dictionary (4th Ed.) p. 1473. in consideration of this type question the courts have made a distinction between legal residence and actual residence. The best approach is to give the term a fair common sense construction. Allen v. Maryland Cas. Co., 259 FSupp. 505; Ladner v. Andrews, (La. App.) 216 S.2d 365, 367. In Travelers Ins. Co. v. Mixon, 118 Ga. App. 31 (162 SE2d 830), this court considered a situation involving a 19 year-old and construed the term residence in just such a fashion, finding in that case that the question as to whether the son was a resident in his father's household was a jury issue. Here on summary judgment we cannot hold as a matter of law that the daughter was a resident of the same household so as to demand a finding in favor of State Farm.
3. In Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, 519 (160 SE2d 844), the majority of this court rejected the "first instance permission" rule and instead adopted the rule that "while a slight or inconsequential deviation from the permission given will not annul the coverage of the omnibus clause (see Hodges v. Ocean Accident &c. Corp., [66 Ga. App. 431 (18 SE2d 28)]), there is an absence of permission within the meaning of the policy if the vehicle is being driven at a time or a place or for a purpose not authorized by the insured." In this case the burden was upon the movant to establish that the act of the daughter in running off and utilizing the car in doing so was within the scope of the permission. The evidence failed to establish this as a matter of law and hence summary judgment on this ground was not proper. It appearing that there were issues of material fact to be considered, the trial judge erred in granting State Farm's motion for summary judgment.
Judgment reversed. Bell, C. J., and Deen, J., concur.
Rogers, Magrader & Hoyt, Wade C. Hoyt, Jr., for appellees.
Neely, Freeman & Hawkins, A. Timothy Jones, for appellants.
ARGUED MARCH 5, 1973 -- DECIDED JUNE 8, 1973.
Friday May 22 13:19 EDT

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