McAbee v. Nationwide Mut. Ins. Co., 18601

CourtUnited States State Supreme Court of South Carolina
Citation249 S.C. 96,152 S.E.2d 731
PartiesInez W. McABEE, Administratrix of the Estate of James Frank McAbee, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Respondent.
Docket NumberNo. 18601,18601
Decision Date08 February 1967

Page 731

152 S.E.2d 731
249 S.C. 96
Inez W. McABEE, Administratrix of the Estate of James Frank
McAbee, Appellant,
No. 18601.
Supreme Court of South Carolina.
Feb. 8, 1967.

[249 S.C. 97] Melvin L. Roberts, York, for appellant.

Hayes, Hayes & Brunson, Rock Hill, for respondent.

LEWIS, Acting C.J.

The defendant Nationwide Insurance Company issued to James Frank McAbee a policy of insurance which, in addition[249 S.C. 98] to other benefits, provided indemnity in case of bodily injury or death sustained 'while in or upon, entering or alighting from' a described motor vehicle. The insured sustained fatal injuries when he was crushed against the rear of the standing motor vehicle by a moving tractor. The plaintiff subsequently brought this action as administratrix to recover the death benefits provided in the policy, contending that the insured's injuries were sustained while be was Upon the standing vehicle within the meaning of the above mentioned policy provision and therefore was covered by its terms. Under undisputed facts the lower court concluded that the injuries sustained by the insured did not occur while he was 'in or upon' the motor vehicle and denied recovery. The plaintiff has appealed from the judgment so entered.

The insured, while driving a truck owned by his employer, came upon his employer's brother who was trying to start the engine of a tractor. The insured stopped and

Page 732

also tried to start the engine but was unsuccessful. It was then decided to pull the tractor behind the truck to a nearby service station. The two vehicles were accordingly connected by a chain, one end fastened to the rear of the truck and the other to the front of the tractor, and the tractor was pulled to the station. Shortly after arrival there the tractor engine was started. During the efforts to start the engine at the station, the two vehicles were still connected by the tow chain with the tractor located to the rear of the truck and both on a slight downgrade. After the tractor had been started, the insured, preparatory to his leaving in the truck, went to the rear of the truck to unloose the chain. At that time the tractor began rolling forward down the slight grade toward the rear of the truck where the insured, stooped with his back turned, was engaged in disconnecting the vehicles. When his attention was attracted to the oncoming tractor by those standing nearby, the insured...

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17 cases
  • Halterman v. Motorists Mut. Ins. Co.
    • United States
    • Ohio Court of Appeals
    • July 2, 1981
    ... ... Tucker (1975), 69 Wis.2d 41, 230 N.W.2d 148 ... 4 Goodwin v. Lumbermens Mut. Cas. Co. (1952), 199 Md. 121, 85 A.2d 759; McAbee v. Nationwide Mut. Ins. Co. (1967), 249 S.C. 96, 152 S.E.2d 731 ... 5 American Liberty Ins. Co. v. DeWitte (E.D.S.C.1964), 236 F.Supp. 636; ... ...
  • Michigan Mut. Ins. Co. v. Combs
    • United States
    • Indiana Appellate Court
    • April 5, 1983
    ...intended to cover a class of persons and situations not necessarily included in the other terms used." McAbee v. National Mutual Insurance Co., (1967) 249 S.C. 96, 152 S.E.2d 731, 732. This is but a restatement of the general rule that courts may not construe words in a contract in such a w......
  • Cramer v. Nat'l Cas. Co.
    • United States
    • U.S. District Court — District of South Carolina
    • June 7, 2016
    ...already physically in contact with the car, the person is by definition either "in" or "upon" the car. See McAbee v. Nationwide Mut. Ins. Co. , 249 S.C. 96, 152 S.E.2d 731, 733 (1967) (holding that "upon" requires actual physical contact with the insured vehicle). Therefore, this court find......
  • Testone v. Allstate Ins. Co.
    • United States
    • Connecticut Supreme Court
    • June 7, 1973
    ...& Liability Ins. Co., 105 R.I. 693, 254 A.2d 438; Sherman v. New York Casualty Co., 78 R.I. 393, 82 A.2d 839; McAbee v. Nationwide Mutual Ins. Co., 249 S.C. 96, 152 S.E.2d 731. The argument that coverage under uninsured motorist provisions containing the term "upon" need not depend on the i......
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