Ferguson v. Aetna Cas. & Sur. Co., 4149

Decision Date01 August 1963
Docket NumberNo. 4149,4149
Citation369 S.W.2d 844
PartiesThomas D. FERGUSON et ux., Appellants, v. AETNA CASUALTY & SURETY COMPANY, Argonaut Insurance Company, and Donald E. Bowles, d/b/a Shelton and Bowles Insurance Agency, Appellees.
CourtTexas Court of Appeals

Carter, Gallagher, Jones & Magee, Joe Hill Jones, Dallas, for appellant.

Bailey & Williams, James C. Allums, Jr., L. W. Anderson, Touchstone, Bernays & Johnston, Wade Smith, Dallas, for appellee.

McDONALD, Chief Justice.

Plaintiff sued defendant Insurance Companies upon the 'medical payments provision' of policies issued upon her automobile (and sued defendant Insurance Agency upon policy which was requested but not issued). Such policies provide medical payments for the named insured who sustains 'bodily injury, caused by accident, while occupying or through being struck by an automobile.' The term 'occupying' is defined in the policy as meaning 'in or upon or entering into or alighting from an automobile.'

Plaintiff had been to the beauty parlor. She left the beauty parlor, came out onto the parking lot where she had left her automobile. In front of the beauty shop was a board that went out into the parking area. Parked alongside of this board at the end of it was 'an automobile'. Plaintiff walked to the end of the board and reached out and grabbed the door handle of the car to support herself. While holding onto the handle for support, she stepped off the board and went down into the mud, breaking both legs and suffering other injuries. (The car plaintiff had hold of was not her own, and she was not in the act of entering such car; she was merely holding onto the handle for support as she walked around the car on her way to her own car, which was parked further down on the parking lot. However, if plaintiff was 'in or upon, or entering or alighting from' this particular car, she would be covered by the policies. Houston Fire & Cas. Ins. Co. v. Kahn, Tex.Sup.Ct., 359 S.W.2d 892).

The Trial Court entered summary judgment that plaintiff take nothing, holding that plaintiff was not 'occupying an automobile' within the definition of the medical payments of the policies which provide that the term 'occupying', is defined as 'in or upon or entering into or alighting from an automobile', at the time of sustaining injury.

Plaintiff appeals, contending that the trial court erred in rendering such summary judgment, and that the policies afforded coverage in...

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13 cases
  • Rohlman v. Hawkeye-Security Ins. Co.
    • United States
    • Michigan Supreme Court
    • December 1, 1992
    ...not being or about to be immediately used as a means of transportation." Id., p. 172, 506 A.2d 728.30 In Ferguson v. Aetna Casualty & Surety Co., 369 S.W.2d 844 (Tex.Civ.App.1963), a Texas appellate court denied recovery to a woman who was injured when she slipped in the mud as she attempte......
  • Reynolds v. Transport Ins. Co.
    • United States
    • Georgia Court of Appeals
    • March 12, 1986
    ...itself, not that he was "in or upon" and thus "occupying" the vehicle at the time of his injury. Accord Ferguson v. Aetna Cas., etc., Co., 369 S.W.2d 844 (Tex.Civ.App.1963). See Kelley v. Integon Indem. Corp., 253 Ga. 269, 320 S.E.2d 526 (1984); Clinton v. Nat. Indem. Co., 153 Ga.App. 491(2......
  • Michigan Mut. Ins. Co. v. Combs
    • United States
    • Indiana Appellate Court
    • April 5, 1983
    ...96 N.Y.S.2d 153; Robson v. Lightning Rod Mutual Insurance Co., (1978) 59 Ohio App.2d 261, 393 N.E.2d 1053; Ferguson v. Aetna Casualty & Surety Co., (Tex.Civ.App.1963) 369 S.W.2d 844. The logic of such courts is best expressed by the following quotation from Robson, "We reject 'the physical ......
  • United Farm Bureau Mut. Ins. Co. v. Pierce
    • United States
    • Indiana Appellate Court
    • June 15, 1972
    ...that 'physical contact' alone is the test as to whether an insured is 'in or upon' an automobile.' Ferguson v. Aetna Casualty & Surety Company (Tex.Civ.App.1963), 369 S.W.2d 844, at p. 846. Pierce relies upon the principle that if a contract of insurance is ambiguous then it shall be constr......
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