Nationwide Mutual Insurance v. Allison , 51 N.C. App. 654 ( 1981 )

277 S.E.2d 473 (1981)

NATIONWIDE MUTUAL INSURANCE COMPANY
v.
Janet K. ALLISON, Gary Robert Allison, Leslie Norman Church, Fred Michael Barber, Bobbie Dianne Pangle and David L. Pangle.

No. 8025SC524.

Court of Appeals of North Carolina.

May 5, 1981.

Robert R. Gardner, Raleigh, and Patrick, Harper & Dixon by Stephen M. Thomas, Hickory, for plaintiff-appellant.

Donald T. Robbins, Granite Falls, for defendant-appellee Fred Michael Barber.

No brief filed for defendants-appellees Janet K. Allison, Gary Robert Allison, Leslie Norman Church, Bobbie Dianne Pangle and David L. Pangle.

WHICHARD, Judge.

The parties stipulated that the case might be heard by the court without a jury. They thereby waived a jury trial and empowered the court to resolve any issues of fact which were raised, a procedure authorized by G.S. 1-262. The orders, judgments and decrees of a court under the Declaratory Judgment Act "may be reviewed as other orders, judgments and decrees." G.S. 1-258. The statute "provides for review under the same rules that apply in cases not brought pursuant to the act." Dickey v. Herbin, 250 N.C. 321, 325, 108 S.E.2d 632, 635 (1959). The rule thus applicable is that the court's findings of fact are conclusive if supported by any competent evidence; and a judgment supported by such findings will be affirmed, even though there is evidence which might sustain findings to the contrary, and even though incompetent evidence may have been admitted. Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975); Transit, Inc., v. Casualty Co., 285 N.C. 541, 206 S.E.2d 155 (1974); Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 182 S.E.2d 373 (1971); Anderson v. Insurance Co., 266 N.C. 309, 145 S.E.2d 845 (1966); Church v. Church, 27 N.C.App. 127, 218 S.E.2d 223 cert. denied 288 N.C. 730, 220 S.E.2d 350 (1975). The function of our review is, then, to determine whether the record contains competent evidence to support the findings; and whether the findings support the conclusions.

A certified copy of the policy of insurance is part of the record. The policy reflects its issuance by the plaintiff to the defendant Gary Allison. It further reflects that it covered the automobile involved; that its effective dates covered a period which included the date of the accident; and that it covered the defendant Gary Allison as "named insured." "Named Insured" was defined therein as "the individual named in the declarations and also ... his spouse, if a resident of the same household." The policy described the "Persons Insured" as including "(1) the Named Insured and any resident of the same household, [and] (2) any other person using such automobile with the permission of the Named Insured, provided his actual operation or ... his other actual use thereof is within the scope of such permission." The facts found with regard to the policy itself are apparent from the face of the record and clearly merit sustention.

After finding that by definition the phrase "named insured" included the spouse of the individual named if "a resident of the same household," the court found that Janet Allison was the spouse of Gary Allison and was a resident of the same household "when the contract of automobile liability insurance was written and ... continuously... since [it] was written." The record contains plenary evidence to sustain the finding that the Allisons were married at the time in question. Both spouses testified to the marriage; no contrary evidence was offered; and plaintiff takes no exception to this finding. Plaintiff does except, however, to the finding that Janet Allison was a resident of Gary Allison's household. It contends that she ceased to be such when she departed on the ill-fated frolic of her own. The record, however, contains competent evidence from which the trial court could find as it did, evidence to the contrary notwithstanding.

Janet Allison testified that her purpose in going to Arizona was "[j]ust to go." She testified that she did not discuss "going out there and ... starting life all over again." At the time she left she did not have any plans one way or the other about coming back. When she got to Texas, though, she "was ready to come back home." She "was just about getting ready to give up and come home." She "was just wanting to stop and stay or come back home or something." On one occasion she told the defendant Bobbie Dianne Pangle that she "would like to go back home."^[1] Further, Gary Allison testified as follows:

Q. Was she a member of your household at that time?

A. Yes sir.

The evidence recited indicates that the defendant Janet Allison, subsequent to her departure from North Carolina, still considered her residence to be her "home" with the defendant Gary Allison. It further indicates that the defendant Gary Allison continued to consider her a member of his household. Other evidence indicates that Janet Allison in fact resumed her residency with Gary Allison upon her return. We find this evidence sufficient to support the trial court's finding that Janet Allison was a resident of the same household with Gary Allison at the time of the accident; and the trial court's finding to that effect must therefore be sustained.

The trial court further found that Janet Allison gave Church permission to operate the automobile. Janet Allison had testified: "Mike and Les never drove this car without my permission. Mr. Church had my permission at the time this accident happened." Thus this finding, too, is supported by the evidence; and it, too, must be sustained.

The facts found support the conclusion that Janet Allison, as a resident of the same household with Gary Allison, was a "named insured"; and that Church, as a permittee of a named insured, driving the automobile within the scope of the permission, was an "Insured" under the terms of the policy.^[2] The order that plaintiff's policy provides coverage to the defendants Janet Allison and Church for such liability as may be established resulting from the accident thus properly declared the "rights, status, and other legal relations"^[3] of the parties resultant upon the facts found and conclusions entered. The judgment of the trial court is therefore

Affirmed.

HEDRICK and CLARK, JJ., concur.

NOTES

[1] Emphasis supplied passim.

[2] See generally Annot., 93 A.L.R. 3d 420 (1979) (who is "resident" or "member" of same "household" or "family" as named insured). See also Marlowe v. Ins. Co., 15 N.C.App. 456, 190 S.E.2d 417 cert. denied 282 N.C. 153, 191 S.E.2d 602 (1972).

[3] G.S. 1-253.