Goldberg v. UNITED LIFE & ACC. INS. CO., CONCORD, NH

102 S.E.2d 521 (1958)

248 N.C. 86

Agnes E. GOLDBERG v. UNITED LIFE & ACCIDENT INSURANCE COMPANY, CONCORD, NEW HAMPSHIRE.

No. 239.

Supreme Court of North Carolina.

March 26, 1958.

*522 Alvin A. London and Richard J. Kennedy, Charlotte, for plaintiff, appellant.

Pierce, Wardlow, Knox & Caudle, Charlotte, for defendant, appellee.

JOHNSON, Justice.

Conceding, without deciding, that the plaintiff's evidence in some aspects is sufficient to show prima facie that the *523 insured met his death through accidental means within the insuring provisions of the policies, even so, the evidence discloses conclusively that the insured met his death by homicide as the result of being struck by Dr. Black. True, it may be inferred that Dr. Black was incited to action by the insulting language of the insured and that in striking the blow he had no intent to kill. Nevertheless, the rule is that no words, however violent or insulting, justify a blow. Lewis v. Fountain, 168 N.C. 277, 84 S.E. 278; Palmer v. Winston-Salem R. R. & Elec. Co., 131 N.C. 250, 42 S.E. 604; 6 C.J.S. Assault and Battery § 91, p. 943. And death having resulted from the voluntary, unlawful act of Dr. Black, i. e., an assault and battery, it was death by "homicide" within the meaning of the exception clauses of the policies. 40 C.J.S. Homicide § 58; 29 C.J., p. 1150. See also State v. Knight, N.C., 102 S.E.2d 259; State v. Hovis, 233 N.C. 359, 64 S.E.2d 564; United Life & Accident Ins. Co. v. Prostic, 169 Md. 535, 182 A. 421. These things appearing as the only reasonable inferences deducible from the testimony received in evidence, the judgment of nonsuit entered below will be upheld on the ground that the defendant's affirmative defense of homicide was established as a matter of law by the plaintiff's evidence. Where a defendant's affirmative defense is so established, nonsuit may be entered. Hedgecock v. Jefferson Standard Life Ins. Co., 212 N.C. 638, 194 S.E. 86; Butler v. New York Life Ins. Co., 213 N.C. 384, 196 S.E. 317; Thomas-Yelverton Co. v. State Capital Life Ins. Co., 238 N.C. 278, 77 S.E.2d 692; Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248.

In Hedgecock v. Jefferson Standard Life Ins. Co., supra, 212 N.C. at page 641, 194 S.E. at page 88, the rule is stated this way: "When the plaintiff offers evidence sufficient to constitute a prima facie case in an action in which the defendant has set up an affirmative defense, and the evidence of the plaintiff establishes the truth of the affirmative defense as a matter of law, a judgment of nonsuit may be entered."

Affirmed.