Houston Fire and Casualty Insurance Company v. Kahn

Decision Date18 July 1962
Docket NumberNo. A-9002,A-9002
Citation359 S.W.2d 892
PartiesHOUSTON FIRE AND CASUALTY INSURANCE COMPANY, Petitioner, v. Leonard C. KAHN, Respondent.
CourtTexas Supreme Court

Clawson, Jennings & Clawson and R. Philip Schulze, Houston, for petitioner.

Leonard C. Kahn and Gizella E. Salomon, Houston, for respondent.

STEAKLEY, Justice.

The only problem of the case is the proper construction of the medical coverage clause of a policy of insurance issued by Petitioner covering Respondent and members of his family. The coverage is for medical expenses resulting from bodily injury 'caused by accident * * * through being struck by an automobile.'

The facts were stipulated. The son of Respondent while riding a bicycle ran into the rear of an unoccupied and legally parked automobile on a public street in Houston, and sustained bodily injuries. Respondent recovered judgment against Petitioner in the sum of $2,232.00 for medical expenses. This was affirmed by the Court of Civil Appeals. 355 S.W.2d 221.

The Court of Civil Appeals was persuaded by the cases of Hale v. Allstate Insurance Co., 162 Tex. 65, 344 S.W.2d 430; Carson v. Nationwide Mutual Insurance Co., Ohio Com.Pl., 169 N.E.2d 506; and Davilla v. Liberty Life Insurance Co., 114 Cal.App. 308, 299 P. 831. The problem in the Hale and Carson cases, as relevant here, was whether the insured had been struck by an automobile in a collision between a vehicle in which the insured was riding and another moving vehicle, the latter not coming into actual physical contact with the person of the insured but with the vehicle in which he was riding. It was held that the coverage of the policies would be given their ordinary meaning as contemplating that one is 'struck' by an automobile in such a situation. The obvious difference here is that the automobile with which the son of Respondent collided was parked and cannot very well be regarded as a moving or striking force.

The opinion of the California District Court of Appeals in the Davilla case states that 'the policy merely requires that the insured be struck without specifying what shall strike,' and from this the court reasoned that the accidental injury policy there under review covered a fact situation where the insured, who was endeavoring to stop and avoid a collision, was thrown from his motorcycle and against the automobile which had stopped for some reason after being driven into the street ahead of him.

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8 cases
  • Old Amer. County Mut. Fire Ins. v. Sanchez
    • United States
    • Texas Court of Appeals
    • June 27, 2002
    ...S.W.2d 249, 249 (Tex.1974) (youth on motorbike who drove into rear of stopped car supplied striking force); Houston Fire & Cas. Ins. Go. v. Kahn, 359 S.W.2d 892, 892 (Tex.1962) (youth on bicycle who rode into back of parked car supplied striking force). In Kahn, the supreme court reviewed l......
  • Miller v. U.S. Fidelity & Guar. Ins. Co.
    • United States
    • Idaho Court of Appeals
    • June 2, 1987
    ...338 S.E.2d 687 (1985); DeBerry v. American Motorists Insurance Co., 33 N.C.App. 639, 236 S.E.2d 380 (1977); Houston Fire and Casualty Insurance Co. v. Kahn, 359 S.W.2d 892 (Tex.1962). Consequently, Miller may not recover under either type of first-party coverage unless there was physical co......
  • DeBerry v. American Motorists Ins. Co.
    • United States
    • North Carolina Court of Appeals
    • July 20, 1977
    ...had been "struck by an automobile" according to the common and ordinary meaning of that phrase. See e. g., Houston Fire & Casualty Ins. Co. v. Kahn, 359 S.W.2d 892 (Tex.1962). A very small minority of jurisdictions have denied recovery on the ground that physical contact between the automob......
  • Roberts v. Allstate Life Ins. Co.
    • United States
    • United States Appellate Court of Illinois
    • April 8, 1993
    ...position in two Texas Supreme Court cases which have construed the phrase "struck by an automobile". In Houston Fire and Casualty Insurance Co. v. Kahn (Tex., 1962), 359 S.W.2d 892, the plaintiff's son was injured when he ran his bicycle into the rear of a parked car. In Gallup v. St. Paul ......
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