Mozingo v. Mid-South Ins. Co.

224 S.E.2d 208 (1976)

29 N.C. App. 352

Polly Rose MOZINGO v. MID-SOUTH INSURANCE COMPANY.

No. 757DC898.

Court of Appeals of North Carolina.

May 5, 1976.

*209 Milton P. Fields and Leon Henderson, Jr., Fields, Cooper & Henderson, Rocky Mount, for plaintiff-appellee.

Vernon F. Daughtridge, Wilson, for defendant-appellant.

VAUGHN, Judge.

Defendant brings forward several assignments of error wherein it contends, in essence, that the judge should not have submitted the case to the jury but should have entered judgment for defendant as a matter of law. These contentions cannot be sustained. The evidence tends to show that the insured met his death by external violence which was not totally inconsistent with an accident. The evidence tends to show that he met his death when a truck occupied by him [the parties seem to assume that inferences arising on the evidence are conclusive as to insured's having been the operator] ran off a highway and struck a tree. That there is evidence that the vehicle had been travelling at a high rate of speed and that, thereafter, blood taken from defendant's heart was .21 percent alcohol does not preclude the jury from finding that decedent's death was effected solely by accidental means. The policy contained no specific exclusions from coverage if death occurred while defendant was intoxicated or engaged in a violation of the law.

Defendant brings forward a number of other assignments of error directed to the charge to the jury.

In a long line of cases, our courts have emphasized that the term "accidental death" and "death by accidental means" are not synonymous.

*210 The able trial judge's explanation of "accidental means" within the meaning of the policy in question is in accord with numerous decisions of the Supreme Court. We quote his explanation here.

"Accidental means refers to the occurrence or happening which produces the result and not to the result. That is, accidental is descriptive of the term `Means'. The motivating, operative and causal factor must be accidental in the sense that it is unusual, unforeseen and unexpected. The emphasis is upon the accidental character of the causation, not upon the accidental nature of the ultimate sequence of the chain of causation. Now, members of the jury, in laymen's language, we ordinarily think of an accident insurance policy as an accident in a pure sense, that is, a totally, unforeseen, unpredictable, unexpected result. Accidental means, which is the language employed in this policy, goes not to the actual results, in this case the striking of a truck against a tree but goes to the cause of that happening, the cause of the result and the question before you is with reference as to whether or not the cause leading to the striking of the truck against the tree was accidental."

After the foregoing, the court gave a lengthy statement of the contentions of the parties and then closed with this mandate:

"So finally, members of the jury, with respect to the issue I instruct you that if you should find from the evidence and by its greater weight, that on the 16th day of February, 1974, that the deceased, Mr. Mozingo, was operating his truck along the highway and that while doing so his truck left the highway accidentally, as that accidental means has been defined to you in this charge, independent of all other causes, if you should find those facts by the greater weight of the evidence and you go further and find that the movement of the truck in leaving the highway and striking the tree resulted in his death, I instruct you that it would be your duty to answer the issue in favor of the plaintiff, that is, you would answer the issue yes. On the other hand, members of the jury, if after considering all of the evidence, the plaintiff has not so satisfied you, or if you find the truth to be evenly balanced, or if you are unable to tell where the truth lies, then your verdict on that issue must be for the defendant and you would answer the issue no."

The foregoing two quotations from the charge constitute the only explanation of the law arising on the evidence given in the case. The rest of the charge, as it relates to the issue at trial, was devoted to a recapitulation of the evidence and a statement of the contentions of the parties.

We regret to say that the judge did not declare and explain the law arising on the evidence. It is true that the judge told the jury that defendant contended that insured voluntarily drove at a high rate of speed after drinking alcohol and that these voluntary acts of insured caused the result, but at no time did the judge tell the jury how they should apply that evidence in arriving at their verdict.

"The decisions of this Court are consistently to the effect that G.S. § 1-180 imposes upon the trial judge the positive duty of declaring and explaining the law arising on the evidence as to all substantial features of the case. A mere declaration of the law in general terms and a statement of the contentions of the parties with respect to a particular issue is not sufficient to meet the requirements of the statute. The judge must explain and apply the law to the specific facts pertinent to the issue involved." Saunders v. Warren, 267 N.C. 735, 739, 149 S.E.2d 19, 22.

A recital of what the parties contend the law to be is not sufficient. Tate v. Golding, 1 N.C.App. 38, 159 S.E.2d 276. See also Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331 and cases cited therein.

In applying the law to the evidence, the jury must be given guidance as to what facts, if found by them to be true, would justify them in answering the issues submitted *211 either in the affirmative or the negative. American Credit Co. v. Brown, 10 N.C.App. 382, 178 S.E.2d 649.

For the reasons stated, there must be a new trial.

New trial.

MORRIS and CLARK, JJ., concur.