State Farm Mutual Automobile Insurance v. Short

MILLS, J.,

dissenting:

Flimsy and puerile cases, like frivolous and hollow appeals, should be similarly treated: Summarily, and with dispatch.

Summary Judgment was, in my opinion, the proper medium for the disposition of this matter and the trial court should be affirmed. The majority of this Court concludes that the test for summary judgment has not been met. I must respectfully disagree. The standard or criterion has been tersely stated: “The pleadings and affidavits in the case should show, when construed most favorably against the moving party, that there is no genuine issue as to any material fact and that the moving party is entitled to the decree or order as a matter of law.” Glen View Club v. Becker, 113 Ill App2d 127, 251 NE2d 778, 782. (The visceral portion of the test has been purposely stressed.)

The Civil Practice Act of Illinois, Sec 57, sets forth summary judgment procedure and provides that affidavits shall be governed by rule. Pursuant to that statutory authority, the mandatory edict of Illinois Supreme Court Rule 191 is unequivocal in its language: “Affidavits in support of and in opposition to a motion for summary judgment . . . shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; . . . shall not consist of conclusions but of facts admissible in evidence. . . .” The mere filing of an affidavit raises no issue of fact (In re Estate of Boysen, 73 Ill App2d 197, 218 NE2d 838, 839), and the recitation of mere conclusions does not satisfy the requirements of the Supreme Court Rule (Prudential Insurance Company of America v. Zorger, 86 F2d 446, 449).

The majority of this court relies primarily upon the affidavit of the Herrons and “other affidavits similar to the Herron affidavits” in support of their holding. I agree that a careful examination of all of these counter-affidavits in opposition to the motion for summary judgment are similar and fall in the same category as the Herron affidavit. And I further agree with the majority that such affidavits state the conclusion that Robert Moss “lived at home with his parents.” The counter-affidavits unquestionably consisted of pure and undiluted conclusion, recited no facts based on personal knowledge from which such conclusions could be deduced and frequently amounted to nothing more than the rankest form of hearsay.

The mandatory requirements of Rule 191 are crystal clear and do not equivocate in the slightest: The affidavits must “set forth with particularity the facts” and “shall not consist of conclusions but of facts admissible in evidence. . . .” My interpretation of Rule 191 and the long line of Illinois decisions on summary judgment leads to but one result: Conclusions are simply not sufficient, and our courts have consistently held that the affidavits, both in support of and contra to summary judgment, must relate the facts from which those conclusions can be drawn. Were this not the rule, summary judgment could never stand and such procedure would be nonexistent. If we are to permit the mere recitation of conclusions in such affidavits, all that an opposing party litigant need do is recite as a conclusion the very opposite of what the summary judgment motion asserts — ■ no facts, no specifics — simply a naked and unadorned contrary statement of conclusion.

The majority would, however, seek to circumvent such requirement for facts and permit the conclusions to stand in opposition to the motion for summary judgment on the paper-thin reasoning that the matter at bar is “a non-technical subject” as treated in Rost v. Noble & Co., 316 Ill 357, 364, 147 NE 258. I do not quarrel with that doctrine, but I am unable to see even a shadow of its applicability to this appeal. The exception of permitting “a witness to express his opinion upon a non-technical subject . . . when it is impossible by word of mouth or gesture to reproduce the data before the jury . . .” is a far different cry from our problem: there is no jury here; there is no suspicion that to require facts from an affiant are “impossible” here; there is no hint that the facts here supporting the conclusion cannot be reproduced; there is no suggestion that such facts are incapable of being conveyed “by word of mouth or gesture.” Granted, opinion or conclusion is not always “practicable to place before the jury” and “subtle or complex facts perceived by the senses,” or “a combination of appearances which are too indefinite and general in their nature to be susceptible of direct proof,” or due to “limitations of language,” “cannot be adequately described and presented to the jury.” All well and good, but how is it relevant here? None of these difficulties in communication are hinted at in this case. This was not a question of a lay jury having difficulty understanding “subtle or complex facts.” It was a simple question of whether the affiants stated bald conclusions or the normal mundane facts of common observance upon which the conclusions were grounded. Assuming, arguendo, that the facts in the case at bar were so “subtle or complex” as to be uncommunicative to a jury, there would appear to be utterly no excuse why the facts could not be set forth in writing in an affidavit where all of the subtleties, accuracies and leisure of draftsmanship could paint a clear picture with a factual brush. It seems axiomatic that the counter-affiants could have related what they saw or observed Robert Moss doing at, in or around his parents’ home— facts. In short: there is nothing at all here to indicate that what the affiants saw defies description.

I, too, agree with the truism that the examination and cross-examination of witnesses before a court and jury is most important. That is why the test for summary judgment is as precise, exact and rigid as it is. But where there is “no genuine issue as to any material fact” the efficacy of summary judgment is most assuredly sound. And the time-honored method of measuring a given case for summary judgment is by affidavit, and affidavits must contain facts, not conclusions. By my yardstick, appellant’s counteraffidavits were wholly conclusionary, totally lacking in proper composition and requisite recital of facts, directly violative of Rule 191 and because of their inadequacies leave an absolute void in an ill-starred attempt to counter the affidavits in support of summary judgment.

Now, we turn to the taproot of this appeal: Was Robert Moss a resident of his father’s household and was he also driving his brother’s car with permission at the time of the collision? Both parties to this review agree that if either segment of this two-pronged question is answered in the negative, then Robert Moss was not covered by the insurance policy in question. We must then examine the affidavits in support of the motion for summary judgment and scrutinize them under the same hard, bright light of the tests applied to the counter-affidavits. These affiants were the father, mother, brother, sister and sister-in-law of the decedent, Robert Moss. Their affidavits consisted of a myriad of facts, not conclusions; and they are not at variance in the essential and material elements here scrutinized, but rather all fall into basically the same fundamental factual pattern:

Robert Moss was discharged from the Navy in 1959 in California. He returned to Illinois and stayed until 1961 when he returned to California to work for an uncle. After 2 or 3 months, he came back to Illinois where he worked for various employers. He didn’t hold a job very long. Over the next several years he went back and forth between California and Illinois. In January, 1966, he went to Florida to pick grapefruit and returned to Illinois the next month. From February 3, 1966, until his death on May 23, 1966, he was in the Cottage Hills area. Robert Moss was never married, and in the words of his mother he was “a wanderer.” He would work for a few weeks and then leave; his family had a difficult time keeping track of him. He would stay with either his parents or a brother or a sister — a few nights at a time, or maybe one night — and then somewhere else. He rarely sat down to a meal at any of their homes — and never regularly. He would eat a sandwich now and then at the home most convenient. He had articles of clothing at all of their homes, and they all did some of his laundry along with their own. He left a suitcase with some personal items in it at his brother’s home. He paid no board, and never paid any of them for doing his small amount of laundry. He stayed at all of their homes, moving from one to another. His mother stated that he had not slept at their house since February 3, 1966, except the night before his death.

As is germane to this review, the phrase “residents of the same household” must be construed. Was Robert a “resident” of the same “household” as his father, the insured? No Illinois authority relevant to this interpretation has been called to our attention. Consequently, it is necessary to turn to other sources. Black’s Law Dictionary, Revised Fourth Edition (1968), defines “household” as “A family living together. . . . Those who dwell under the same roof and compose a family.” And Black’s defines “residence” as “A factual place of abode. Living in a particular locality. ... It requires only bodily presence as an inhabitant of a place.” And from a brief scanning of the many cases in 37 Words and Phrases under “Resident,” it becomes apparent that the context of the use of “resident” is extremely important since its meaning varies with purpose and context.

In State Farm Mutual Automobile Insurance Company v. Walker, 78 ALR2d 1395, 334 SW2d 458, 462-463, the Court of Civil Appeals of Texas said: “We believe . . . that the term ‘resident’ should be construed to mean ‘member,’ or ‘member of the same family.’ As applied to a ‘family,’ a person is either a member of it or is not a member of it, for it is a personal relationship. It would not be possible to be a ‘resident’ of a family. It is possible to reside in or be a ‘resident’ ‘in a house,’ but not ‘of a house.’ One may be a ‘member’ of a family or organization or group, but not of a building or of anything inanimate.”

Hartford Accident & Indemnity Company v. Casualty Underwriters, Inc., 130 F Supp 56, held that a son’s temporary one or two day visits with his father were insufficient to classify the son as a member of his father’s household, and cited numerous cases to show that “The courts have constantly stressed the common ‘living under one roof’ as a signal characteristic of a household.” (P 58.)

The fact that all those living under the same roof in the same household contributed to the expenses of the home has been considered an important element. That factual situation was accented in defining “an adult member of the household” in Andrews v. Commercial Casualty Insurance Co., 128 Neb 496, 259 NW 653, 655. In an Oklahoma case, Indemnity Insurance Co. of North America v. Sanders, (Okla), 36 P2d 271, 273, that court viewed the word “household” as nearly synonymous with “family.” In the interpretation and construction of the phrase “an adult member of the assured’s household” in an insurance policy, the court emphasized that the head of the household had no liability to support his daughter or son-in-law, and that they in turn owed no duty to him to “abide the authority” of the father.

A situation somewhat analogous to the factual background in the case on review is found in American Casualty Company of Reading, Pennsylvania v. Crook, 197 F Supp 345, affirmed in 301 F2d 846. The question was whether or not a brother-in-law was “resident” of insured’s household. The brother-in-law “. . . had been divorced for several years and since his divorce has led a somewhat nomadic pattern of life. He has lived or visited from time to time with members of his family, or has stayed in hotels or rooming houses . . . traveled to and from work with other parties . . . went to Florida . . , and worked on various construction projects . . . returned to West Virginia . . . resided with the Lilly family . . . and . . . stayed a short time with his mother . . . three or four days prior ... he arrived at the Crook’s home ... he brought some of his belongings into the house, slept in one of the rooms with other members of the family, ate his meals with the family and to a large degree participated in their social and family activities. He paid no room or board on this occasion . . .” (p 348). The court determined that he was not a “resident” of the insured’s household.

I conclude that the cases here alluded to correctly reflect the better and majority view. Residence in a household contemplates a family unit relationship, where all members dwell under a common roof and shelter, contribute in manifold ways to the welfare of all members of that family unit and submit to the authority and influence of the head or leader of that domicile. Decedent fulfilled none of these requisites. Taken in their most favorable light from appellant’s viewpoint, the facts are manifestly clear in demonstrating that decedent’s was a pastoral and migratory existence, going where the mood directed, staying under the most convenient roof, resting on the nearest berth and partaking of the most available sustenance. Where his residence was is not at issue; the fact that it was not with his father is.

Since the first segment of the inquiry must be answered in the negative, and Robert Moss was not a resident of his father’s household at the time of the collision, appellant’s entire suit topples and she has no cause of action under the insurance policy here. To my view, the trial court correctly ruled in granting summary judgment, and its action should be affirmed.