Hale v. Allstate Ins. Co., 15646

• Decision Date: 01 April 1960
• Docket Number: No. 15646,15646
• Parties: Harvey E. HALE, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 346

345 S.W.2d 346

Harvey E. HALE, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.

No. 15646.

Court of Civil Appeals of Texas, Dallas.

April 1, 1960.

Rehearing Denied April 7, 1961.

John F. Harrison and Harlan Harper, Dallas, for appellant.

Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for appellee.

DIXON, Chief Justice.

Appellant Harvey E. Hale instituted this suit against appellee Allstate Insurance Company to recover medical payments which he alleges come within the coverage of an automobile policy dated May 10, 1957. After a trial before the court without a jury, judgment was rendered that appellant take nothing.

Facts.

The facts have been stipulated.

On May 10, 1957 appellee issued to appellant a policy of insurance for a period of one year which policy provided inter alia for medical payment coverage in the amount of $2,000. At the time appellant was the owner of a 1951 Mercury automobile which is described in the policy. This policy will be referred to hereinafter as the Mercury policy.

The original Mercury policy contained these provisions:

'Sub-Part A.

'Coverage Cl--Medical Payments--Automobile. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:

'Division One. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury' caused by accident, while occupying or through being struck by an automobile; * * *

'Exclusions: This policy does not apply under this Sub-Part A to bodily injury: * * * (b) sustained by the named insured or a relative (1) while occupying an automobile owned by the named insured or any relative, other than an owned automobile, * * *'.

In Endorsement No. 222, attached to the policy, 'owned automobile' is defined as follows: "Owned Automobile' means

(a) a private passenger or utility automobile described in the policy, * * * (c) a private passenger or utility automobile * * * ownership of any of which is acquired by the named insured during the policy period. (2) The company insures all private passenger or utility automobiles or trailers owned by the named insured on the date of such acquisition and the named insured notifies the company within 30 days following such date; and includes a temporary substitute automobile.'

Until September 18, 1957 appellant owned no other vehicle than the 1951 Mercury, but on said date he purchased a 1957 Ford half ton pick-up truck. He immediately notified appellee of his purchase of the truck and was issued a second policy covering a period of a year, in which policy the 1957 Ford truck is described. This second policy did not provide medical payment coverage.

At the time appellant bought the Ford truck Endorsement No. 214 was added to appellant's Mercury policy. The endorsement contains this provision:

'214. Exclusion of Specified Automobile.

'Except with respect to bodily injury under Coverage C1--Medical Payments--Automobile, resulting from the named insured or any relative thereof being struck by an automobile if such coverage is afforded, it is agreed that the policy does not apply to the automobile described below or any automobile acquired as a replacement thereof.'

The 'automobile described below' is the 1957 Ford half ton pick-up truck acquired by appellant on September 18, 1957.

It is undisputed that on September 18, 1957 and at all times subsequent thereto, appellee insured all motor vehicles (two in number) owned by appellant Hale.

On October 15, 1957 while appellant, his wife and children were riding in the 1957 Ford truck in Dallas County, Texas, they sustained injuries in a collision between the Ford truck and an automobile being driven by one James Robert Hulse. In connection with their injuries reasonable and necessary doctor's, hospital, an drug expenses were incurred in the amount of $933.50.

In a suit against Hulse, appellant in his petition included some of items of medical expenses involved in this case. The suit was later settled, appellant receiving from Hulse a sum of money as compensation for the injuries of himself and family. Appellant executed a release to Hulse. Appellee in this case does not claim a right of subrogation for any amounts of money received by appellant from Hulse in reimbursement for medical expenses. It is conceded that appellant took all necessary steps properly to present his claim to appellee. Appellee then and now denies liability.

Opinion.

Appellant in four points on appeal contends that the court erred in holding that (1) the medical pay provisions of the Mercury policy did not cover appellant and his family while occupying the 1957 Ford truck, and (2) the 30 day automatic coverage provisions on the Mercury did not apply to the 1957 Ford truck; and that the court erred in failing to hold that (3) appellant proved a payable loss under the medical pay provisions of the Mercury policy; and (4) appellant and his family were 'struck by an automobile', within the terms of the policy, therefore entitled to coverage under the medical payment provisions contained in the policy.

Since the policy of September 18, 1957, issued to appellant when he acquired the Ford truck, does not include coverage for medical expenses, we must look to the Mercury policy to determine whether appellant has any insurance coverage for medical expenses incurred as a result of the injuries he suffered in the automobile collision of October 15, 1957.

We call attention to the fact that the Mercury policy, though it describes the 1951 Mercury automobile, is not limited in its coverage to medical expenses incurred while appellant or his relatives were passengers in the 1951 Mercury. Section Co.--Medical Payments--Automobiles, Division One, hereinbefore quoted, expressly provides coverage for appellant and his relatives 'while occupying or through being struck by an automobile' regardless of whether they may be riding in the Mercury automobile when they sustain injuries.

We also call attention to the fact that Endorsement No. 214, 'Exclusion of Specified Automobile', which was attached to the Mercury policy when appellant bought the Ford truck in September 1957, makes an exception to the exclusion of the Ford truck from coverage. It precedes the words of exclusion with this proviso: 'Except with respect to bodily injury under Coverage C1--Medical payments--automobile resulting from the named insured or any relative thereof being struck by an automobile if such coverage is afforded * * *.' This seems to us to mean plainly that coverage of the Ford truck is not excluded as to medical payments provided under the Cl Section of the policy.

We call attention further to Endorsement No. 222 where in connection with the definition of 'owned...