{ "id": 1467065, "name": "Central Manufacturers' Mutual Insurance Company v. Friedman", "name_abbreviation": "Central Manufacturers' Mutual Insurance v. Friedman", "decision_date": "1948-03-08", "docket_number": "4-8475", "first_page": "9", "last_page": "14", "citations": [ { "type": "official", "cite": "213 Ark. 9" }, { "type": "parallel", "cite": "209 S.W.2d 102" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "18 Johns. (N. Y.) 400", "category": "reporters:state", "reporter": "Johns. Ch.", "opinion_index": 0 }, { "cite": "205 Ark. 650", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488297 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/205/0650-01" ] }, { "cite": "115 S. W. 2d 882", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 1031", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726011 ], "opinion_index": 0, "case_paths": [ "/ark/195/1031-01" ] }, { "cite": "173 S. W. 427", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "116 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1532270 ], "opinion_index": 0, "case_paths": [ "/ark/116/0361-01" ] }, { "cite": "44 A. L, R. 871", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "280 S. W. 1001", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "170 Ark. 322", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371602 ], "opinion_index": 0, "case_paths": [ "/ark/170/0322-01" ] }, { "cite": "120 S. W. 970", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "91 Ark. 122", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511805 ], "opinion_index": 0, "case_paths": [ "/ark/91/0122-01" ] } ], "analysis": { "cardinality": 550, "char_count": 8746, "ocr_confidence": 0.483, "pagerank": { "raw": 7.290426263007596e-07, "percentile": 0.9683168787060559 }, "sha256": "653803661b12f026351f8989a0276c2f462e00da3a715917594d3aa0ab1c702c", "simhash": "1:90b44e84f60df4a9", "word_count": 1537 }, "last_updated": "2023-07-14T14:58:24.264428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Central Manufacturers\u2019 Mutual Insurance Company v. Friedman." ], "opinions": [ { "text": "Holt, J.\nAppellee brought this action to recover for loss of personal property belonging to his minor son, Beni\u00edo S. Friedman, in the amount of $428.95, on a Floater Insurance Policy issued to appellee by appellant company, on July 20,1946, in the principal sum of $5,000, for which appellee paid a premium of $155. Appellant denied liability.\nA trial before the court sitting as a jury resulted in a judgment for appellee for the full amount claimed, for attorneys\u2019 fees and 12% penalty. This appeal followed.\nAppellant says there are only two questions for decision: \u201c1. Was Benno S. Friedman, at the time of the thefts of his personal property, a member of the insured\u2019s family of the same household within the terms and provisions of the policy of insurance 1 2. Did the court err in permitting the plaintiff to introduce incompetent, irrelevant'and hearsay testimony and to consider the same in making its findings of fact and conclusions of law?\u201d\nMr. I. J. Friedman, Benno\u2019s father, testified: \u201cMy name is I. J. Friedman. I live at 722 South 24th Street, Fort Smith, Ark., and I have a policy of insurance with The Central Manufacturers\u2019 Mutual Insurance Company of Van Wert, Ohio. (The policy was produced and introduced in evidence). My son, Benno S. Friedman, was drafted into the Army in the spring of 1946. At that time he was 18 years of age. He is not married and was living at my home at the time he was drafted. He is now 19 years of age.\u201d\nOver appellant\u2019s objection and exceptions, Mr. Friedman was further permitted to testify that his son, Benno, would be discharged from the Army when his 18 months were up, that he did not have a separate home of his own, that he was subject to Army orders wherever he was located, that his son attended Ohio State College three or four months before he was drafted, attended Officers Training School and received a commission, that he was paying his son\u2019s expenses at Ohio State, that he intended to send him back-to school after his discharge and that his son was coming back home after his discharge.\nIt was stipulated \u201cthat on February 1st to 8th, 1947, there was stolen from Benno S. Friedman, from locked room by picking lock, in Billeting Officers Quarter, No; 804, Boom No. 18, at Fort Eustis, Virginia, the following articles,\u201d (naming them), of the value of $238.45, and \u201cthat on January 22, 1947, there was stolen from said Benno S. Friedman, from locked suitcase from Building 2309, Fort Eustis, Virginia, the following articles,\u201d (naming them), in the amount of-$252.50, \u201cand that if the plaintiff is entitled to recover he should recover in the amount of $428.95 for the loss of the articles.\u201d\nThe policy in question provides: \u2018 \u2018 Property Covered: 1. Personal property owned, used or worn by the persons in whose name this policy is issued, hereinafter called the Insured, and members of the Insured\u2019s family of the same household, while in all situations, except as hereinafter provided. ... 4. With respect to the unscheduled personal property ordinarily situated throughout the year at residences other than the principal residence of the Insured, the Company shall not be liable in excess of ten per cent of the amount of insurance set forth in Item (a) Paragraph 3,\u201d or ten per cent of $5,000.\u201d\nAt the time of the property loss here, Benno was a minor and it was the duty of the parent to support and educate him so long as he remained a member of his family. Biggs v. St. Louis, Iron Mountain & Southern Railway Company, 91 Ark. 122, 120 S. W. 970, and Frauenthal & Schwarz v. Bank of El Paso, 170 Ark. 322, 280 S. W. 1001, 44 A. L, R. 871.\nThe domicile of Benno was with his father, Landreth v. Henson, 116 Ark. 361,173 S. W. 427. Domicile includes residence and place of abode. Webster defines \u201cdomicile\u201d: \u201cA place of residence, either of an individual or a family; a dwelling place; an abode, a home or habitation. \u201d Residence and place of abode are synonymous. Husband v. Crockett, 195 Ark. 1031, 115 S. W. 2d 882. The Constitution of this state provides: Art. XIX, \u00a7 7: \u2018 \u2018Absence on business of the state or of the United States or on a visit, . . . shall not cause a forfeiture of residence once obtained.\u201d\nThe evidence is undisputed that Benno was unmarried, a minor, was living with his father at the time of his induction into the Army, and intended to return to the parental home in Fort Smith when discharged. He did not intend to change his domicile or residence and had made no change unless his military service alone brought about such .change. In the circumstances here, Benno\u2019s military service did not bring about any change in his domicile or residence.\nIn the very recent case of Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876, we said: \u201cIn the Conflict of Laws, vol. 1, p. 155, Professor Beale discusses the \u2018domicile of a soldier or sailor\u2019 and the capacity of a sailor or soldier to acquire a \u2018residence\u2019 notwithstanding his service in the Army or Navy, and it was there said: \u2018It is, of course, possible for him (soldier) to provid\u00e9 a house of his own, off the post, where his family may live, if this is allowed by superior officers; and it is possible for him to change his domicile by the proper proceedings while on leave. But he cannot acquire a domicile in an Army Post.\u2019 .\n\u201cAt p. 157 of the same text it is said: \u2018This does not mean, of course, that the soldier or sailor in any way loses his personality or ceases to be sui juris. He is as able as anyone to acquire a new domicile so far as conditions allow. He cannot acquire it by any act done under military orders since, as has been seen, he has no choice but obedience. His orders would, so long as he remained in the Army, be enforced by all the powers of the state, and if he'were permitted to leave the Army he could no longer remain in the Army quarters. He may, however, like anyone else, change his domicile by acquiring a residence outside an Army Post with the intention of making it his home. . . .\n\u201cThe domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and the intent concur.\u201d\nHere, there is no evidence that Benno acquired a residence outside of the Army post with the intention of making it his home.\nWe think the word \u201chousehold\u201d as used in the section of the policy, supra, meant domicile, residence or place of abode. \u201cHousehold\u201d is defined in Bouvier\u2019s Law Dictionary, Rawle\u2019s Third Revision, vol. 2, page 1462, as follows. \u201cThose who dwell under the same roof and constitute a family. Webst. But it is not necessary that they should be under a roof, or that the father of the family be with it, if the mother and children keep together so as to constitute a family; Woodward v. Murray, 18 Johns. (N. Y.) 400.\u201d\nWe hold that Benno Friedman was a \u201cmember of the insured\u2019s family of the same household\u201d and was therefore protected by the policy when the theft occurred, and that the further provision in the policy, \u201cwhile in all situations \u2019 \u2019 covered the stolen property regardless of its location. That such was the intended meaning of this latter phrase, by the insurer, company, is emphasized' by the provisions of section 4, supra, which limits the amount of the company\u2019s liability to 10% of all articles located away from the insured\u2019s residence. The face of the policy was for $5,000 and under this section 4, the most that could be recovered on articles kept away from-the home was $500. Had the insurer, company, desired to restrict the geographical boundaries of its coverage, it could have very easily so provided in the policy.\nThe rule is well settled that policies of insurance must be construed, in case of any ambiguity, most strongly in favor of the policy holder, and against the insurer who wrote the insurance contract.\nAppellant\u2019s contention that the evidence of I. J. Friedman, supra, to which it objected, was incompetent and should not have been admitted is, we think, untenable for the reason that such evidence does not come within the hearsay rule. This testimony was within the knowledge of Benno\u2019s father. Benno being a minor, was subject to the control of his father, during his minority, and there was no evidence that he had acquired, or intended to acquire, any other domicile or residence, than that provided by his father in Fort Smith.\nFinding no error the judgment is affirmed.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "Hugh M. Bland, for appellant.", "Hill, Fitshugh & Brissolara, for appellee." ], "corrections": "", "head_matter": "Central Manufacturers\u2019 Mutual Insurance Company v. Friedman.\n4-8475\n209 S. W. 2d 102\nOpinion delivered March 8, 1948.\nHugh M. Bland, for appellant.\nHill, Fitshugh & Brissolara, for appellee." }, "file_name": "0009-01", "first_page_order": 25, "last_page_order": 30 }