Appellees Farmers Insurance Exchange and United States Fidelity and Guaranty Company obtained a declaratory judgment holding that appellant Shirley Ann Holloway was not “a resident of the same household” that her husband appellant Billy G. Holloway occupied at the time of her injuries and that Mrs. Holloway was therefore not an insured under the Medical Pay and Uninsured Motorist provisions of the two policies. Mr. and Mrs. Holloway for reversal contend that the Chancellor’s findings are contrary to the law and the evidence.
Admittedly Mrs. Holloway would be covered if she comes within the definition of “named insured” contained in the policies.
The Farmers Insurance Exchange Policy defines “named insured” as follows:
“If the insured named in item 1 of the Declarations is an individual, the term ‘named insured’ includes his spouse if a resident of the same household.”
The U.S.F. 8c G. policy provides:
“NAMED INSURED means the individual named in item 1 of the declarations and also includes his spouse, if a resident of the same household.”
The record shows that the marriage of Mr. and Mrs. Holloway had its “ups and downs.” Their first marriage to which one child was born resulted in divorce. One child was also born to their second marriage. After moving to Wichita, Kansas, Bill Carlisle moved into the home with them. He continued to live there after his marriage to Alicia. On or about February 15, 1969, Mrs. Holloway in the company of the Carlisles left Wichita to go to Phoenix, Arizona. Admittedly Mrs. Holloway has no realtives in Phoenix. She was injured in an allegedly uninsured motor vehicle on March 29, 1969, while on an outing to some motorcycle races at Yuma, Arizona.
It is admitted that on February 25, 1969, Mr. Holloway signed a complaint for divorce, filed in Kansas on March 10, 1969. Service was had by warning order. On April 25, 1969, while still in the hospital at Fayetteville, Arkansas, Mrs. Holloway filed a petition for separate maintenance in which she alleged that the parties had been separated since December 50, 1968, and that she had been a resident of Arkansas for more than 60 days.
Mrs. Holloway testified that she and her husband were having marital problems and that after some discussion, it was agreed that she would go to Phoenix and get away for awhile. She left on February 15, 1969, with Bill Carlisle and his wife in a Chevelle that she considered to be her car. When she left, her husband was present and gave her $50 or $40. Including the money that she had and what the Carlisles had, they had some six hundred dollars between them. She took only a suit case, leaving the rest of her personal things, a sewing machine, an accordian and furniture. There was an understanding between her and her husband that the children would go to the grandparents while she was gone. Upon arriving in Phoenix she and the Carlisles lived in different motels, taking their meals in restaurants. In a week or so after arriving in Phoenix, a bartender borrowed her Chevelle for just a minute and wrecked it. Thereafter they purchased a 1950 Ford for transportation. Not long after they got to Phoenix, Bill Carlisle got in trouble with the authorities and was placed in jail. On the week-end of the accident, Mrs. Carlisle, because of her pregnancy, had gone back to her folks. Before leaving, however, Mrs. Carlisle and Mrs. Holloway had agreed that Mrs. Holloway would contact Bill Carlisle the following Monday, after which she was to return to Wichita. Mrs. Holloway explained that she had not talked directly with Mr. Holloway while she was in Phoenix but that she had done so indirectly through a mutual friend. When asked why she used the mutual friend she replied: “That was the whole purpose of going out there was to be away from each other and not talk to each other for awhile.” With reference to how long she was to be in Phoenix the record shows:
“Q. When you left for Phoenix in the latter part of February of ’69, had you and Mr. Holloway discussed how long you would stay separated?
“A. Yes.
“Q. How long was that?
“A. I was to be out there approximately two weeks.
“Q. As it turned out, you stayed longer, it that correct?
“A. Yes.
“Q. Did Mr. Holloway know why it was necessary for you to stay longer than two weeks?
“A. Yes. Betty called him and told him that Billy was in trouble.”
While in Phoenix Mrs. Holloway became acquainted with Virginia Andrews. At the suggestion of Virginia she went with a group to the motorcycle races at Yuma, Arizona. She had not met any of tbe group except Virginia before that time. Enroute to Yuma, on a Saturday, she was injured and did not remember anything thereafter until the following Tuesday, when she saw her husband standing over her bed. Mrs. Holloway was transported by air ambulance from Arizona to Fayetteville, Arkansas. At Fayetteville, Mr. Holloway visited her every week-end, —commuting from Wichita where he was employed. On April 25, she learned for the first time that her husband had filed the divorce suit in Wichita. Because he wanted to take the children from her parents’ home in Fayetteville to Wichita she called her lawyer and asked him to do something to keep the children from being removed from the state. As a result of that call, the separate maintenance suit set out above was filed. Admittedly Mr. 8c Mrs. Holloway are now living together.
Mr. Holloway testified that his wife left on February 15, 1969, with the Carlisles taking the Chevelle and only one suit case. Her leaving had been discussed and he was present at the time, — in fact he gave her $30 or $40. Before she left he had called her mother and made arrangements for the grandparents to keep the children while she was gone. Mr. Holloway admitted that he and his wife had not seen eye to eye on a lot of things and when asked what led up to the Phoenix trip, he stated:
“Well, she said she more or less kind of wanted to get away for awhile and see just exactly — you know— what she wanted to do, whether or not she wanted to go ahead with her marriage or whether or not we would terminate it, so this is where this Phoenix trip come about.”
According to Mr. Holloway, Mrs. Holloway left on more or less friendly terms with the understanding that she would be back in two or three weeks. At the time she left, she took only one suitcase, leaving her wig, accordion, etc. Other than the indirect communication with Bill Carlisle’s sister Betty, he did not hear from her until the accident. As soon as he heard of the accident, he flew out to Arizona to be with her. He filed the suit for divorce before he heard that Bill Carlisle had gotten into trouble with the law. With reference to the filing of the divorce the record shows the following:
“Q. Now when you went to the lawyer to file suit for divorce, I take it that at that time you had made up your mind that you did not want to stay married to Shirley?
“A. Well, not really. I more or less filed that divorce, I think, because she’d actually stayed away longer that what we’d really planned and I was kind of mad. I guess I wanted to show my authority or something.”
Appellees, to support the Chancellor’s declaratory judgment decree, rely upon Couch on Insurance, 2d § 42: 78 and the case of Neidhoefer v. Automobile Ins. Co. of Hartford, Conn. (7th Cir. 1950), 182 F. 2d 269. Both authorities equate “residing in the same household” and similar policy provisions as referring to domicile. See also Central Manufacturer’s Mutual Ins. Co. v. Friedman, 213 Ark. 9, 209 S.W. 2d 102 (1948). Both Couch and the Neidhoefer case recognize that the controlling issue in determining coverage under such policy provisions is the intent possessed by the departing member of the family. In other words, the departing spouse remains a resident of the household unless the intent of the departing member be that the household be disrupted or his domicile therein be terminated.
In the Neidhoefer case, the parties separated September 12, 1946, the departing spouse commenced her separate maintenance action on October 3, 1946, and at the time of the loss on December 9, 1946, she had taken up her abode elsewhere — in fact making a claim for the losses she stated: “My income is from separate maintenance from my husband. . .from whom I have been separated from since and living apart since September 12, 1946.” In holding that Mrs. Neidhoefer was not a member of the family household on December 9, 1946, the court stated:
“We think that the important and perhaps controlling feature in situations of the instant character is the intent possessed by the departing member of a family. Of course, it is not difficult to visualize a situation where a wife might leave the home for a considerable time and still retain her status as a member of the family and the household, for instance, if she was away on a visit or for some other purpose. In such a situation the separation should be not only with the consent of the husband but with the intent on the part of the wife to return. In the instant case, however, we see no reason to think or infer that Mrs. Neidhoefer, when she separated from her husband and home on September 12, 1946, had any intention other than making such separation permanent.”
Here there is no showing that Mrs. Holloway had taken up an abode other than the one she had with her husband. The fact that the children were left with the husband with an understanding that Mrs. Holloway’s mother would take care of them while she was gone is a very cogent indication that the trip to Phoenix was of a temporary nature.
When the record is viewed from this standpoint together with her testimony and that of her husband that she departed on the trip to Phoenix only for the purpose of getting* away for awhile, we find the Chancellor’s holding that she was not a resident of the household at the time of the accident is contrary to both the law and the evidence.
Reversed.
Brown, Fogleman and Jones, JJ., dissent.