*1 Therefore, hereby this case must be and is reversed and remanded trial grant to the court with instructions for by setting Petition Post-Conviction plea Relief aside the guilty Appellant, proceeding arraign entered Appellant charge on the in the affidavit for all other proceedings opinion. consistent this with
Hoffman,
Staton, J.,
C.J.
concur.
Reported in
Note. — United Farm Bureau Mutual Insurance
Company Bill Pierce. Rehearing August 272A61. June 4, 1972. [No. Filed denied January 9, 1973.] Transfer denied Pettay, Bloomington, McNutt, Lee Blue, Hurt & of Mar- tinsville, appellant. for Kelly, Martinsville,
James H. appellee. for plaintiff-appellee’s (Pierce’s) P.J. The auto- Robertson, got mobile became stuck in the Pierce out of the snow. and, wheel, attempted while another was pushing slipped, to free While on front fender he vehicle. cutting fingers on his left hand. defendant-appellant
Pierce had an insurance provisions payment (Farm Bureau) included medical Occupying was occupying the vehicle. applicable he while entering into upon, being “in or policy as defined in the *2 Pierce’s denied Farm Bureau the automobile. alighting from” in an action prevailed payments. Pierce claim medical for judgment. summary judgment by way of a declaratory for trial court held: arising coverage “1. for medical Plaintiff was insured occupying of a vehicle. out injury plaintiff was within time of his “2. At the plaintiff’s occupying Exhibit clause of the set out ‘a: ” appeals overruling of
Farm Bureau now its motion specified judgment contrary to correct errors was which law evidence. and the “upon” questions presented not the is whether or word places “occupying” Pierce within contained the definition of expected provisions may there is a As judicial “in or interpretation of what constitutes division in upon” clause in the instant case. used in foreign us cites authorities from
Farm Bureau se.veral interpretation jurisdictions involving the same or similar exclusionary or similar fact situations. clause under same upon” “in that the insured was not hold Those authorities factually case, similar the court said: the vehicle. In stating language employed in the cov think “We unambiguous erage plain say and to is ‘upon’ push the truck was when he behind the insured meaning upon placing a distorted ing it would ‘upon’ neither ‘in’ nor language He used. the truck Bowlin v. State Farm Mutual Automobile In time.” at the (1959), 46 260, 66, A. W. 2d surance Co. p. 327 S. at Tenn. 67. slipped in
Also, insured some holding where the mud while support, for a Texas Court onto said:
389 say simply upon’ “We cannot the car she was ‘in or put upon steady because she . . her hand it to herself. . Moreover, reject plaintiff’s physical we contention contact alone is the test as is ‘in to whether an insured upon, Ferguson Casualty an automobile.” Aetna & Surety Company (Tex. p. 1963), 369 2d 846. S. W. Pierce principle relies that if a contract of insur- ambiguous ance is then it shall be construed favor of Company
insured. Patton v. Insurance Safeco 859; App. (1971), America 148 Ind. E. 2d Fidelity Guaranty Baugh United State Co. v. App. 699; 146 Ind. & 583, 257 2d and Town N. E. Country App. Mut. Ins. Co. v. Owens Ind. 241 N. 2dE. resolving necessary issue it if the to determine
phrase question ambiguous. elementary policies “It is in the construction insurance that where insurance contracts are so as to be drawn require interpretation fairly suscepti- or are *3 ble reasonably of two different constructions so that intelli- gent reading men honestly on them would differ as to their
meaning, adopt the Courts will that construction most (Our emphasis.) favorable to the insured.” Acc. Masonic (1929), Ins. Co. v. Jackson 472, p. 481, 200 at Ind. 164 628, p. N. E. at 631. “Accordingly, applied the test to be ascertaining ambiguity, or lack thereof, of the insurance contract before this one ambiguity is whether or it susceptible of more than interpretation. Furthermore, in order to constitute susceptible so as to be of more than one inter- pretation, it must be shown that intelligent reading men on the insurance contract would honestly differ meaning. supra. Masonic, as to its This however, does not controversy mean that because exists party and a asserts interpretation, one while the other denies it, ambiguity affirmatively has (Citing been to shown exist.” authori- ties.) O'Meara v. American States (1971), Insurance Co. App. 563, 148 109, p. Ind. 268 N. 2d at E. 111. In determining whether ambiguity exists we find the ob servations v. American Cas. Co. Reading, Pa. Wolf App. 2 124, 118 Ill. 2d 777, 2d helpful: E. most
390 case, the word the use of “As to related the instant mean that ambiguity. It cannot ‘upon’ which creates meaning clause, had insured, to within the running or on the car to be couched on the roof of physical sitting It some on the must board relationship the area defined connote hood. enlarged car and the between himself ‘entering alighting’ and by the words against lia- cases which decided ‘in.’ the two word
bility, physical plaintiff contact with own had no 777, authorities.) p. (Citing 118 2d car.” N. E. referring liability Ross v. court to a denial of The 340, Indemnity 150, Protective (1948), 135 62 A. 2d Co. Conn. (insured responding nature), call to a struck while Casualty Co. Fromer (1950 New Amsterdam D. C. Mun. v. returning (insured to his App.) 645, 2d struck while 75 A. driver). talking continued car another court after showing injured liability existed when the insured when Casualty (Sherman New York fending moving off his car v. 839); tying 393, Co. [1951], 2d front 78 R. 82 A. I. Casualty (Lokos New Amsterdam bumper v. that had fallen replacing 825); Co. [1949], Y. 2d 93 N. Misc. S. (Madden Farm Bureau Mutual spare tire in the trunk v. App. Automobile Ins. Co. [1948], 111, 79 N. 2d 82 Ohio E. (Young clinging State 586); moving car v. to a when 394). Auto Ins. Ass’n. [1954], R. In each 72 Pa. Dist. & Co. physical instances, insured had of the aforementioned contact with his vehicle. “entering alighting” appear
It would further necessary require coupled an overt act cases an intent may Physical support may or to enter or exit the vehicle. See Goodwin Lumberman’s a factor be considered. v. not be 2dA. Mut. Cas. Co. 199 Md. Wolf supra. Reading, Pa., majority Cas. Co. American appear rely primarily upon physical upon” “in or cases *4 support. “upon” opinion Pierce his car at was are of
We thereby covered the time of accident policy insurance.
Judgment affirmed.
Lybrook, J., concurs; Lowdermilk, J., opinion. dissents with
Dissenting Opinion necessary J. I find it to dissent from the Lowdermilk, majority opinion my colleagues.
Plaintiff-appellee policy defendant-appellant had a with the company (Farm insurance Bureau), which included medical payment provisions applicable occupying while he was As majority opinion, “occupying” said vehicle. was upon, entering defined “in or into or alighting plaintiff-ap- from” the The automobile. claim of pellee payments for medical pre- However, he denied. judgment declaratory vailed an action for by way of sum- mary judgment.
Again, reiterating majority opinion, the statement of the question presented “upon” is whether the word contained “occupying” places definition of plaintiff-appellee within provisions awarding judgment summary judgment, held plaintiff coverage arising insured for medical out of the occupancy and, too, vehicle the time of injury plaintiff occupying was within the clause of his plaintiff’s as set out in Exhibit “A.” majority opinion upon relies Tennessee, cases from Texas, Pennsylvania, Connecticut, Washington, D. Mun. C. App., Illinois, Supreme, York New and Ohio. elementary
It in Indiana that a contract of insurance which is shall be construed in favor of the in sured and is so actually well settled it needs no citation authority. However, agree I with the Indiana authorities majority opinion, cited as I was the author of the opinion Fidelity in United States Guaranty Baugh Co. App. 583, 146 Ind. 257 N. E. 2d
Two Indiana cases relied affirming for the of the trial *5 Insurance Accident majority Masonic opinion in are court p. 481, Company 472, 164 N. E. Jackson at 200 Ind. v. American the case of O’Meara v. p. 631, at also App. 563, 268 E. Insurance Co. (1971), 148 States Ind. p. 2d per- supra, policy
In the Masonic in case, the clause said be no taining indemnity that there would thereunder was disability may any that have indemnity payable for death or to, part, by any in of wholly contributed or caused or been engaged or in aviation following while causes: “. . . ballooning, . .” . Ry. Employees Assn.
This case cited case Benefit Hayden 995, which case held 299 W. 175 Ark. S. aeroplane passenger in an one killed while a that case, in de engaged trial that The in aeronautics. Trotter, finding decedent, that Paul to make a clined injury telegraph operator, received his fatal while was a who aeroplane passenger; that as riding riding as a in an exception aeroplane does not constitute an passenger in an upon. excepted risk, the terms of the sued under or ‘engaged phrase implies in aeronautics’ that . but “. . part excepted it have in for the insured to taken the risk the otherwise, operation aeroplane occupation as an riding merely passenger as a therein does not and that Judgment exception come within against company the insurance for the amount rendered penalty attorney’s appellee ‘The fee. “engaged phrase aeronautics” insists should be strictly construed, exemption it as constitutes from the company, . general liability . the assumed . and taking co-operation part in means aeronautical active resulting the death enterprise, . . insured. being ambiguity in this case the distinction between riding passenger engaged in aeronautics and and whether riding “engaged passenger constitutes as a aero- nautics.” said, court further: “ “engaged” It means take word denotes action. . The ‘. . injured taking part
partin. illustrate: A servant while To injured operation train he must be in while An office of a means that operation the train. taking part in the assisting or discharge engaged of his of the duties officer . performing his office. . .’” is one the duties of while say the words “death The court went military death engaged in in time of war” means service military taking part performing in some doing, while company exempt war; order to service time of *6 liability, must have been caused while from the death doing military something connected with the insured service, while in service due to death contradistinction entirely wholly such or unconnected with service. to causes “ according construction, think, be to This we would . . ‘. ordinary meaning By of words. use natural and the of the word activity “engaged” it that some must have been intended have caused the death in the service should period merely the in- a of time while contradistinction to sured was strengthened This is when in the service. view following. words, “or in conse- the words we consider quence service,” relate to the word that of such “death.” So “consequence of such service” means death result- death ing act of the insured connected with the service from some during period occurred of such death whether ” services or afterwards.’ court, case, reasoning the this line of On Masonic “engaged in insured was not aeronautics” within held that the meaning quoted. clause above said: The court further ‘engaged’ carry on, conduct, to means to “The word single oneself, say a employ that one does relate to To act. thing engaged say a the act is ” [Citing cases.]
continuous. page further said: At court “ “engaged” application, as in the The word used ‘. . . “occupied” not relate to and does an occasional means act regular Thus, may employment.’ be observed outside a phrase ‘engaged suggests in aviation’ denotes
permanency, action, continuity, frequency or and does aptly single riding not aeroplane isolated in an describe act passenger. aas elementary “It is policies in the construction of insurance that where insurance contracts are so drawn as to be require interpretation fairly suscepti- or are ble of two telligent to their constructions so in- different reading honestly men on them would differ meaning, adopt will [Citing courts that construction most to the favorable insured. cases.] policy in generally instant “Since case insured comprehensive language against clear and death from bodily injuries by accidental of which means, there are liability visible body, marks wounds on the for such a destroyed by language exception, death will not be such doubt. unless clear, exception shall be from free reasonable ambiguous, If the doubt will be resolved ” against [Citing the insurer. cases.] goes great length case further Masonic to hold that if a placed reasonable can construction on a prevent will the defeat insured’s indemnification for by general language, a loss covered that construction will be given. Company, supra, American O’Meara States Insurance page discussing the test under am
biguous policy, said: “Accordingly, applied ascertaining the test to be in the ambiguity, thereof, lack or the insurance contract before this susceptible is whether or not it of more interpretation. than one Furthermore, in order to con- ambiguity stitute susceptible so as to of more than interpretation, one it must be shown that in-
telligent honestly however, reading on the men insurance contract would meaning. Masonic, supra. This, as to its differ not controversy does mean that because exists party interpretation, asserts one and a denies exist. while the other it, American ambiguity affirmatively has been shown to National Bank v. Service Ins. Co. Life 579; F. 2d 120 certiorari 314 denied U.S. 62 104, 86 524.” S. Ct. L. Ed.
395 in the struck plaintiff-appellee In was the case at the bar got in car and the He had been his sister’s house. snow car the push party out remained it while another plaintiff the driving. fender pushing do on the front fingers cutting the footing ground, fell lost his and to the of his left hand on the fender. judgment handed declaratory and being an for action
This was he whether summary judgment, not know we do down on do we know the fender nor pushing his down on with hands lifting up under to the car and was if had his back he by lifting his back. more so he could lift fender and had automobile in the that he had been do know We passenger a occupying car as gotten not out and was under person over who had slid a as or as driver was got push the car. steering he out to drive when wheel argument, oral plaintiff-appellee, brief fly lit on example house which common made although fly being ceiling, ceiling upon” the as or “on being position, if the automobile upside down a little This is involved, the automobile. were would in the fetched, as, my opinion, never intended it was far lighting on the car inside policy to the same to flies relate persons occupying top, protection but was for entering alighting from” upon, “in into or the car persons. by the insured’s automobile further, discussed the case of Green Defendant-appellant, Automobile Co. v. Farm Bureau Mutual Ins. W. in which owner of E. 2d Va. S. changing himself, and in the car fell
had had flat tire jack drum fell In that and the wheel on his arm. off policyholder plaintiff-appellee admitted that was not case upon” car, “in but was struck the wheel when drum liability fell, denied. The court said: the car consideration, policy under whether . The words “. . separately ambiguous. context, are considered plain meaning, easily They are understood and common *8 396 not, permitted to, need invoke
use. We any indeed we are not language plain rule of used. construction where such No construction is .” called . for. . Comparing logic plaintiff- the case at bar with appellee fly with the his and man struck the wheel of car, changing tire, plain- while say had the we would tiff-appellee, pushing car, while as the car on his fallen it, started to move and in some manner fallen under stopped part the car body, on some of his or had there been injured fingers, a defect to the fender then he which been, “upon” car, would not have in our opinion, but injured by would have been either the car under or a defect and, in the fender therefore, his car have would had no policy. cause of action under the Country
In the Indiana case of Town & Mut. Ins. Co. v. Owens, Admr. et al. App. 522, 526, 143 241 E. Ind. N. interpreting 2d this of an omnibus clause policy, insurance said: true, appellant insuring agreements “It is urges, as against are to be construed How- author ever, this require rule does not this court to abandon sense, blindly coverage all common afford where questionable any coverage was so intended. The cases point require placed that a ‘reasonable construction’ be language, require on and do not the courts to coverage language fairly liability. find unless ‘the admits’ Masonic Acc. Ins. Co. v. Jackson 200 Ind. us, interpre- the matter before an E. 628. such language tation of the would, reasonable, would effect, usurping apparent intent of the
parties. (Their emphasis.) This we cannot do.” opinion I am “entering” “alighting” need not here, as plaintiff-appellee be discussed was not about to enter pushing car while the same from the front and he had alighted previously get push. therefrom to out and myself bring point I cannot to the that I can hold that man pushing occupying automobile stuck in the snow is “in entering alight- into or myself ing I cannot force from” the automobile. *9 and policy in is conclusion that the its words opinion we of the further need of construction and I am Country in Town & precedent set out should follow our own supra. Owens, Admr., al., et Mut. Ins. Co. it for offered defendant-appellant contract, the wrote agree Indiana, I effect. to where it had
sale the insured construed defendant-appellant should be the it with covering under the Indiana decisions the same. case, supra, question resolves itself Masonic the the
Under upon, policy “in or following: to Do the words of the entering alighting require interpretation ? Could into or from” intelligent mean- reasonably honestly as to their men differ meanings? ing? they fairly susceptible different Are of two questions yes, then those any to these If answer of interpreted in must be favor of the insured. words intelligent opinion, reasonably not hon- my men could only estly meaning; they susceptible of differ as to their are meaning. one plaintiff-appellee car, he outside was not got position
pushing it it and had he from its stuck snow, upon then the automo- he would have entered into bile. my unambiguous opinion
It the words and that are interpretation upon “upon” being would mean however, outside; not seat of automobile and riding upon the truck riding one on a truck could be when running meaning board within the on flatbed or my Further, opinion, plaintiff-appellee en- was not tering alighting into the nor was he therefrom. automobile alighted and had in the automobile therefrom He had been moving it same was stuck in the because snow. without dislodged become and movable in the Had the automobile may he snow, reasonably assumed that have then it would in, upon, the driver’s seat entered into proceeded go and have journey as he had intended when he first entered the car and found stuck and was alight forced to therefrom release the automobile from its stuck in the snow. me, argument
To plaintiff-appellee’s meaning as to the “upon” says the words “on” and where he intelligent understanding honestly men can differ in the these words is He further untenable. contends common usage dictionary as defined will show different mean- ings that, me, is untenable in the case at bar. There might people some merit if that contention all were mastery English language blessed and did “upon” not “on” interchangeably incorrectly, use perfect but we since are and do understand what one *10 means in the these words, use of two whether one or not English language, be a master of the does not make them subject by to construction the court. my opinion plaintiff-appellee It is Pierce was neither on nor his car at time was, of the accident and therefore, would, covered I insurance. therefrom, judgment reverse the trial court on summary in this rendered case. Reported in 283 2dE.
Note. — McClure, Dean Administrator v. Sandra K. Austin. 15, 1972.] 372A133. Filed
[No. June