(dissenting).
I respectfully dissent. This is a summary judgment case. In my opinion the majority decided this case without regard to the summary judgment rules announced by the Supreme Court in Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex.1965). In Le Tulle v. McDonald, 444 S.W.2d 794 (Tex.Civ.App.—Beaumont 1969, writ ref. n. r. e.), the Court said:
“The Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.Sup., 1965) set forth the rules relating to summary judgments. Omitting the citation of authorities found in the opinion, we tabulate these rules:
‘Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
(a) ‘The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him.
(b) ‘. . . the evidence must be viewed in the light most favorable to the party opposing the motion.
(c) ‘If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted.
(d) ‘All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. .
(e) ‘Evidence which favors the mov-ant’s position is not considered unless it is uncontradicted.
(f) ‘If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or such
(g) ‘This exception (Subdiv. (f), supra) is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so.
(h) ‘After all the evidence has been sifted in this manner, the Court must determine whether the movant is entitled to a judgment as a matter of law.’ ”
Considering these rules together with the rule announced in Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970), the Insurance Company has failed to discharge its burden.
The majority opinion says:
“The only matter before this Court is the proper construction of two unambiguous instruments.”
These two instruments are Nancy Bis-chofs’ petition and the policy of insurance.
The majority say:
“An examination of the pleadings of Nancy Bischofs reveals that it is replete with express references to Nancy Bis-chofs as a ‘passenger’ at the time of the injury.”
This is true. However, the word passenger is given a fixed definition in the policy. Only that person who is defined as a passenger under the fixed definition is excluded.
*419The Bischofs’ petition also alleges the following:
“ . . . The Defendant Lamar Gus-tafson, joint owner of said plane, stepped up to the left side of the aircraft, and he and Wayland Bailey conducted an extensive conversation which lasted for five minutes or more.
After having waited for several minutes without further instruction or communication from either of said Defendants, the Plaintiff Nancy Bischofs decided to rejoin her group of friends. She opened the cockpit door on the right side of the cockpit where she had been seated, stepped onto the wing of the plane, crossed the base of the wing of the plane. She hesitated on the landing edge of the wing for several seconds before jumping to the ground in front of the aircraft, which direction was toward her waiting friends.
Said Plaintiff Nancy Bischofs had flown several times in commercial type aircraft, but never before in a small single engine plane. She was not aware of the fact that the propeller was still whirling adjacent to where she jumped from the wing of the aircraft. After landing on the ground, said Plaintiff regained her balance, and lifted her left hand to wave to her friends. When she did so, her left hand was struck by the whirling blades of the plane’s propeller.”
In the above quoted allegations, she alleges facts which clearly show that she was not a passenger or contradicts her allegations that she was a passenger. Her allegations that she was a passenger are allegations of conclusions whereas the quoted portion of her petition are allegations of facts.
In Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951), the Court said:
“In a fairly recent case this court said that ‘if a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous.’ Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, 980. To the same effect, see Remington Rand, Inc., v. Sugarland Industries, 137 Tex. 409, 153 S.W.2d 477, 483 and Rachford v. Stewart Title Guaranty Co., Tex.Civ.App., 160 S.W.2d 985, 987, writ ref. w. o. m. The converse of this is that a contract is ambiguous only when the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. For this very statement of the rule, see the Kansas cases of Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 P. 661, 665 and Barker v. Lashbrook, 128 Kan. 595, 279 P. 12, 13. In other words, if after applying established rules of interpretation to the contract it remains reasonably susceptible to more than one meaning, it is ambiguous, but if only one reasonable meaning clearly emerges it is not ambiguous.”
In my opinion Nancy’s petition is ambiguous under the rule announced in Universal C.I.T. Credit Corp. v. Daniel, supra.
The insurance company contends that Curtiss-Wright Flying Service v. Williamson, 51 S.W.2d 1047 (Tex.Civ.App.-El Paso 1932, writ ref.), is authority for the proposition that Nancy was alighting from the airplane at the time of her injury as a matter of law. The facts in the Williamson case are brief and are copied from the opinion as follows:
“ . . . Williamson was the second passenger to get out. He was anxious to reach a rest room. Upon alighting he turned immediately to the north, ducked under a rod supporting the wing on that side, and started to go around the front end of the plane. He took but two or three steps when he came in contract with the rapidly revolving propeller and sustained injuries which caused his death, in a short time.”
The court held that the findings of several acts of negligence which proximately *420caused Williamson’s death were supported by some evidence and that Williamson was not guilty of contributory negligence as a matter of law. I do not regard the Cur-tiss-Wright case as supporting the insurance company’s contention.
The majority opinion relies upon Whitmire v. Nationwide Mutual Insurance Company, 254 S.C. 184, 174 S.E.2d 391 (1970), and quotes from said opinion.
Another quote from said opinion is as follows:
“Where the act of alighting is completed is uncertain. It must be determined under the facts of each case, considered in the light of the purpose for which coverage is afforded.”
Measured by our summary judgment rules, if we determine that the vital facts are uncertain, the summary judgment should be denied.
The insurance company’s motion for rehearing should be overruled and the judgment should be reversed and the cause remanded.