Fallins v. Durham Life Insurance Co.

100 S.E.2d 214 (1957)

247 N.C. 72

Laura FALLINS v. DURHAM LIFE INSURANCE CO.

No. 96.

Supreme Court of North Carolina.

October 30, 1957.

*216 George W. Ball, Morehead City, George M. Womble, Raleigh, by G. M. Womble, Raleigh, for defendant, appellant.

C. R. Wheatly, Jr., Beaufort, for plaintiff, appellee.

HIGGINS, Justice.

The defendant's exception to the instructions and its motion for nonsuit raise the same questionthe sufficiency of the evidence to go to the jury.

In cases of this character "the plaintiff, to establish a prima facie case, must prove: (1) the existence of the contract or policy sued on; (2) the death of the insured or the happening of the event provided for in the policy; and the giving of notice and proof of death (or other event), as required by the policy. On the other hand the burden is on the company to show a violation of conditions avoiding an otherwise valid policy, or exceptions in the policy which limit the liability of the company." Collins v. United States Casualty Co., 172 N.C. 543, 90 S.E. 585, 586. The burden is on the plaintiff to show the insured met his death by bodily injury effected directly through external, violent, and accidental means, and upon such a showing the defendant can relieve itself of liability by showing the insured's death resulted directly or indirectly from (d) *217 participating in, or attempting to commit an assault or a felony; or (e) violence intentionally inflicted by another.

The only witness (except as to proof of loss) was Levi Williams, who testified in substance that upon being told his nephew and some other boy were fighting, fired his rifle at a telephone pole for the purpose of stopping the fight. "Me wouldn't have done it for nothing. Me wanted to stop them from fighting. * * * Me did that so they would hear that so that would make them stop fighting."

There was no evidence the insured was the aggressor in the fight or that he brought it on; no evidence that either was hurt or in danger. Williams, according to his testimony, intentionally fired a rifle at the telephone pole in order to stop the fight, but with no intent to injure either participant. The jurors heard the story. They observed the witness when he told it. They weighed the testimony and found for the plaintiff on all issues. Does the evidence show that death was effected by accidental means?

An injury is "effected by accidental means" if in the line of proximate causation the act, event, or condition from the standpoint of the insured person is unintended, unexpected, unusual, or unknown. The unintended acts of the insured are deemed accidental. Injuries caused to the insured by the acts of another person, without the consent of the insured, are held due to accidental means unless the injurious acts are provoked and should have been expected by the insured. Vance on Insurance, 3rd ed., Sec. 181, p. 947; Warren v. Pilot Life Ins. Co., 215 N.C. 402, 2 S.E.2d 17; Powers v. Travelers' Ins. Co., 186 N.C. 336, 119 S.E. 481; Ziolkowski v. Continental Casualty Co., 365 Ill. 594, 7 N.E.2d 451; Franchebois v. New York Life Ins. Co., 171 La. 358, 131 So. 46; Hutson v. Continental Casualty Co., 142 Miss. 388, 107 So. 520; Eagan v. Prudential Ins. Co., Mo.App., 107 S.W.2d 133; Price v. Occidental Life Ins. Co., 169 Cal. 800, 147 P. 1175; Goldfeder v. Metropolitan Life Ins. Co., 155 Misc. 744, 280 N.Y.S. 552; Mutual Life Ins. Co. of New York v. Distretti, 159 Tenn. 138, 17 S.W.2d 11; Mutual Ben. Health & Accident Ass'n v. Ryder, 166 Va. 446, 185 S.E. 894; Nalty v. Federal Casualty Co., 245 Ill.App. 180.

Under the foregoing authorities, the plaintiff's evidence was sufficient to go to the jury and to support its finding that the death of the insured was effected directly through external, violent, and accidental means. That finding brought the insured within the coverage of the policy.

The defendant contended, however, that the insured's death resulted directly or indirectly from (d) his participating in an attempt to commit an assault or felony, or (e) from violence intentionally inflicted by another person. The court submitted appropriate issues, both of which were answered for the plaintiff. These issues arose under the exclusion clauses of the policy. As to them, the burden of proof was on the defendant. MacClure v. Accident & Casualty Ins. Co., 229 N.C. 305, 49 S.E.2d 742; Pearson v. Pearson, 227 N.C. 31, 40 S.E.2d 477. Ordinarily, the question whether a party has carried the burden of proof is for the jury.

In this case the insured was not injured by his adversary in the fight but by a stranger to it who shot, or claimed he shot, only to frighten the boys into stopping their fight. There is nothing in the evidence to indicate that either participant in the fight could reasonably expect to be killed by a "crackpot" who thought by shooting into a telephone pole he could stop a boyish fight. There is no suggestion in the evidence that either party to the fight used, or attempted to use any weapon, or that any injury was threatened or anticipated by either of the boys. The evidence in this case is insufficient to call into play the aggressor defense doctrine. Evidence is lacking that the insured was the aggressor in an affray under circumstances *218 which rendered serious injury or death likely. Clay v. State Ins. Co., 174 N.C. 642, 94 S.E. 289, L.R.A.1918B, 508.

The defendant has contended that notwithstanding the unfavorable verdict on the first and second issues, nevertheless the jury should find the insured's death resulted from violence intentionally inflicted by another person. While all the evidence is to the effect that Williams intentionally fired the rifle, it is likewise to the effect he did not intend to injure either participant. The story may or may not be true, but that was for the jury.

In the case of Epps v. Gate City Life Ins. Co., 201 N.C. 695, 161 S.E. 211, 212, cited by the defendant, in denying liability this Court said: "It is immaterial that the officer did not intend to kill the insured; he did intend to shoot him and this was the act that caused his death." (Emphasis added.) In the Epps case the officer intentionally shot the insured. In this case the witness unintentionally shot the insured. In order to come within the exclusion clause in the policy, the violence must be intentionally inflicted. It was so inflicted in the Epps case; likewise in Warren v. Pilot Life Ins. Co., 219 N.C. 368, 13 S.E.2d 609. It was not so inflicted in this case. Where a provision of the policy excludes intentional injury it is the intention of the person inflicting the injury that is controlling. 45 C.J.S. Insurance § 772, p. 800.

The defendant brings forward under proper assignments of error a number of exceptions to the charge. The Assignment No. 7, based on Exception No. 7, relates to the charge on the first issue. After properly charging as to the burden of proof and to the facts necessary to be found in order to answer that issue, "yes," nevertheless, the jury might still answer the issue "no" if it found the killing was intentional. Properly, the latter part of this charge involved the third issue. The defendant cannot complain, therefore, because it had the benefit of the charge on intentional killing on both issues. The court presented the contentions of the parties fairly. It charged in substantial accord with the principles of law herein expressed as applicable to the case. No error of substance appears.

No error.