Annotate this Case

104 S.E.2d 823 (1958)

248 N.C. 699


No. 24.

Supreme Court of North Carolina.

September 17, 1958.

*824 Carroll R. Holmes, Hertford, for defendant appellant.

John H. Hall, Elizabeth City, for plaintiff appellee.

DENNY, Justice.

The appellant presents two questions for our consideration and determination. (1) Did the court below commit error in refusing to sustain the defendant's motion for judgment as of nonsuit, interposed at the conclusion of plaintiff's evidence and renewed at the close of all the evidence? (2) Did the court err in giving peremptory instruction to the jury?

Whether the court erred in refusing to grant the defendant's motion for judgment as of nonsuit depends upon whether or not the insured's death was the result of an accident covered by the terms of the policy and insured against.

The undisputed facts revealed by this record support the conclusion that the insured's death resulted from being hit or struck with burning fuel from an airplane which exploded when the plane hit the building in which the insured was at work.

It is the general rule that where a provision in a policy of insurance is susceptible *825 of two interpretations, when considered in light of the facts in the case, one imposing liability, the other excluding it, the provision will be construed against the insurer. Jones v. Pennsylvania Casualty Co., 140 N.C. 262, 52 S.E. 578, 5 L.R.A., N.S., 932; Manning v. Commerce Insurance Co., 227 N.C. 251, 41 S.E.2d 767; Gould Morris Electric Co. v. Atlantic Fire Insurance Co., 229 N.C. 518, 50 S.E.2d 295, 296.

In the last cited case the defendant issued its policy to protect the plaintiff's cargo against loss or damage while in transit. Among other provisions, the policy insured the plaintiff "against loss or damage directly caused by fire, * * * collision of the conveyance on which the goods are carried * * *, derailment, overturning of trucks or collapse of bridges."

The cargo was packed on plaintiff's truck, with four crates of electric heaters protruding above the top of the truck. While in transit the truck was driven under an overhead concrete bridge and the four topmost crates of heaters were damaged to the extent of $215.48 when they collided with the underside of the bridge.

At the hearing in the trial court, the facts were stipulated and the court held that the policy in suit did not cover the stipulated damages or loss and dismissed the action. Upon appeal to this Court the defendant relied solely upon the phrase in the policy, to wit, "collision of the conveyance on which the goods are carried," contending that the damage to the cargo was not the result of a collision of the vehicle on which the goods were being transported, hence the loss was not covered by the policy. We reversed and held that on the record submitted judgment should have been entered for the plaintiff. Stacy, C. J., speaking for the Court, said: "The heart of a contract is the intention of the parties, which is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time."

In Bolich v. Provident Life & Accident Insurance Co., 205 N.C. 43, 169 S.E. 826, the policy covered the plaintiff against injury, among other things, from "the burning or explosion of an automobile." The automobile involved had been overheating. Plaintiff drove the car into a garage and requested a mechanic to examine the car and see what was wrong with it. The mechanic filled the radiator with water and got into the car; he stepped on the starter, and the exhaust in the motor blew up. There was a terrific combustion in the motor when the mechanic stepped on the starter, followed by a sudden emission of hot water from the radiator, which struck the plaintiff in the face, about the eyes, and caused bodily injury. The plaintiff recovered a verdict in the trial court and the defendant appealed from the failure of the trial court to sustain its motion for judgment as of nonsuit. Upon appeal, this Court held that the injury was compensable under the provisions of the policy.

In our opinion, since the gasoline in the jet plane was essential to its operation, and the insured was struck with the gasoline from the plane and fatally injured as a result thereof, such injury was within the risks against which the insured was covered by the provisions in his policy, and we so hold. This interpretation, in addition to our own decisions cited herein, finds support in Barnes v. Great American Indemnity Co., 60 Ohio App. 114, 19 N.C.2d 903, Industrial Casualty Ins. Co. v. Alspaugh, 112 Ind.App. 569, 44 N.E.2d 321, and Horne v. Life & Casualty Insurance Co. of Tenn., 62 Ga.App. 21, 7 S.E.2d 407.

The facts in the cases cited and relied upon by the appellant are distinguishable from those in the present case.

The second assignment of error is based on the defendant's exception to the following instruction to the jury: "Gentlemen of the jury, I instruct you that if you believe the evidence in this case and all of it and find the facts to be as the evidence and all of it tends to show by its greater weight, *826 the burden being upon the plaintiff to so satisfy you, you would answer this issue `Yes'; in the second column or second line you would answer `$2,250.00, with interest.'"

In connection with the foregoing instruction, the court added, "Of course, if you do not believe the evidence and do not find the facts to be as the evidence and all of it tends to show by its greater weight, then you would not answer the issue Yes, but would answer it No."

The plaintiff's evidence in this case is not controverted, and where such evidence is sufficient to make out a case, as it is in the present action, a peremptory instruction will be upheld. Stewart v. Jaggers, 243 N.C. 166, 90 S.E.2d 308; Commercial Solvents, Inc. v. Johnson, 235 N.C. 237, 69 S.E.2d 716.

In the trial below we find

No error.