American Casualty Co. v. Harleysville Insurance & Walzl

Marbury, J., delivered the opinion of the Court. Harleysville Insurance and Frank Walzl, appellees, brought suit against American Casualty Company, appellant, and Wallace Baker, in the Circuit Court for Prince George’s County, seeking a declaratory judgment that a policy of automobile insurance written by appellant for Baker was primary coverage and that a similar policy written by Harleysville for Walzl was excess coverage. By stipulation, two issues were submitted to the court: first, was Mr. Baker the owner of the specific ve ³²⁴ hide involved in an acddent; and, second, was Mrs. Baker a resident of Mr. Baker's household at the time of the accident. The court, sitting without a jury, held in the negative as to the first question and in the affirmative as to the second, and entered a judgment in favor of appellees.

It is from this judgment that this appeal was taken. Elsie and Wallace Baker were married on January 13, 1951, and resided at 5900 Westbrook Drive, Carrollton, in Prince George’s County, in a house which they owned as tenants by the entireties. Mr. Baker made application for automobile liability insurance coverage on two automobiles in 1961, both of the automobiles being titled in his wife’s name. This application was processed by the Fames Insurance Agency and placed with the Valley Forge Insurance Company, a subsidiary of the appellant.

It was indicated in the application that both Mr. and Mrs. Baker would be the operators of the automobiles. It is significant to note that Mrs. Baker had nothing to do with the purchase, maintenance, or placement of insurance for these automobiles. Before May 26, 1962, the Bakers had a stormy marriage with considerable arguments and brief separations which lasted from two days to three weeks when Mrs. Baker would move in with her daughter, Constance Allen, who lived some fifteen miles distant, in Upper Marlboro. On May 26 they had an argument which resulted in the wife leaving the home.

From this time until July 2, 1962, she went back and forth between her home in Carrollton and the daughter’s home to take her younger daughter, Melody, to school in Carrollton, get some clothing and give instructions to their maid. She took no personal effects or furniture but only a few clothes in a suitcase which she would bring back to be washed as necessary at the home. During this period the husband remained in the home, and on some occasions they would discuss reconciliation but nothing conclusive developed. The arrangements Mrs. Baker had with her daughter were temporary since she was sleeping on a couch, and departed nearly every morning for her home at Carrollton.

She testified that her husband telephoned once for her to resume living at home, but since he was “high” she declined. A hill of complaint for a divorce a mensa et thoro was filed by her ³²⁵ on June 26, 1962, and a cross bill for a divorce a mensa et thoro was filed by her husband, but the disposition of these actions was not disclosed by the record, although they were apparently nullified by the brief reconciliation which later occurred. Mrs. Baker had no income, assets or employment and was solely dependent upon her husband for support. On July 2, 1962, Mrs. Baker, operating one of the automobiles, went to a golf course to pick up Frank Walzl.

At this time she was accompanied by Walzl’s wife. When they were ready to leave the golf course, Mrs. Baker requested Walzl to drive her automobile and she and his wife rode as passengers. At this time he had a policy of insurance issued by Harleysville Insurance, appellee, to cover his car. While operating the Baker automobile, he lost control and struck a tree, causing serious injury to the occupants.

After release