Annotate this Case

108 S.E.2d 438 (1959)

250 N.C. 265


No. 532.

Supreme Court of North Carolina.

May 6, 1959.

*440 Joseph H. Levinson, Smithfield, William I. Godwin, Selma, for plaintiff, appellant.

Allen & Hipp, Raleigh, Wellons & Wellons, Smithfield, for defendant, appellee.

HIGGINS, Justice.

The plaintiff has abandoned all assignments of error except those relating to the judgment of nonsuit. The policy here involved provided coverage for death "resulting directly and independently of all other causes from bodily injury sustained by the insured solely through external, violent, and accidental means." In order to prevail in her suit on the policy, the plaintiff must bring the insured's death within the coverage provision. If coverage is established, the defendant may relieve itself of liability by showing the insured's death was caused "directly or indirectly, wholly or partly, by the intentional act of the insured or any other person, whether sane or insane." Goldberg v. United Life and Accident Ins. Co., 248 N.C. 86, 102 S.E.2d 521; Fallins v. Durham Life Ins. Co., 247 N.C. 72, 100 S.E.2d 214; Patrick v. Pilot Life Ins. Co., 241 N.C. 614, 86 S.E.2d 201; Gorham v. Pacific Mut. Life Ins. Co., 214 N.C. 526, 200 S.E. 5; Whitaker v. Jefferson Standard Life Ins. Co., 213 N.C. 376, 196 S.E. 328; Warren v. Pilot Life Ins. Co., 212 N.C. 354, 193 S.E. 293; Id., 215 N.C. 402, 2 S.E.2d 17; Id., 217 N.C. 705, 9 S.E.2d 479; Id., 219 N.C. 368, 13 S.E.2d 609.

Unless the plaintiff's evidence in this case permits the legitimate inference that the insured met his death solely through external, violent, and accidental means, nonsuit is proper. It is not enough to show death by external means. It is not enough to show death by violent means. We think the proper rule requires the plaintiff to offer evidence sufficient to permit the inference that death was caused also by accidental means. The plaintiff has recognized her responsibility in this particular by the following in her brief: "Thus, there is no question that the plaintiff in an action on an accidental policy must prove that the death for which the action was brought was caused by accidental means within the terms of the policy."

The evidence in this case may be deemed conclusive that the death of the insured resulted solely from external and violent means. The body was found in a lonely place at the city dump, within about three hours from the time he left Selma to carry a passenger to Smithfield. The insured had been shot in the back and above the left ear with a pistol. His money, his pistol, and his taxicab were gone. His belt and empty purse were found near the body. His taxicab was found in a parking lot 22 miles away. The tire marks near the body showed a vehicle had spun its wheels as it left the scene. All the evidence points to an intentional killing with robbery as the motive. This evidence, viewed in the light of reason and common sense, leaves no basis for a finding of death as the result of accident as the term "accident" is generally understood. The evidence, circumstantial, of course, offered nothing which even remotely tended to suggest, much less to support a finding, that death resulted through accidental means.

The plaintiff cites a number of cases, some our own, to the effect that when a prima facie case of coverage under a policy is made out that death resulted solely from external, violent, and accidental means, then in considering whether the insurer has relieved itself of liability under the exclusion clause in the policy, a presumption against suicide or against intentional killing by another arises where nothing appears except death by shooting. The presumption, *441 if it is proper so to designate it, is little if anything more than another statement of the fact that the burden under the exclusion clause is upon the insurance company.

No attempt is here made to reconcile what this Court and others have said with respect to accidental death or death by accidental means. The definitions and holdings have arisen under different policy provisions and different factual situations. The cases have involved double indemnity provisions in life policies. They have arisen with respect to coverage provisions in accident policies, some of which insure against injury by accident, injury or death by external, violent, or accidental means, and injury or death by external, violent, and accidental means. The latter is the provision in this case. They have arisen under exclusion clauses in policies where the burden of proof is upon the insurance carrier. Each opinion must be interpreted in the light of the facts in the case. Taking our own advice, we hold the plaintiff's evidence in this case, under the policy provision here involved, shows an intentional, not an accidental killing. The plaintiff's evidence not only shows lack of coverage, but it also establishes the defense set up in the answer that the death of the insured was caused by the intentional act of another.

When the plaintiff fails to show coverage under the insuring clause of a policy, nonsuit is proper. If the plaintiff's evidence makes out a case of coverage and at the same time establishes the defense that the particular injury is excluded from coverage, nonsuit is likewise proper. Such are the rules when the plaintiff's evidence does not make out a case, or does make out a defense. However, when the defendant's evidence, not in conflict with the plaintiff's, shows the plaintiff does not have a case, or that the defendant does have a complete defense, the defendant's remedy is by motion for a peremptory instruction to the jury. In the Warren cases, supra, the defendant, at the beginning of the trial, assumed the burden of proof. The plaintiff did not offer evidence. Consequently the defendant's remedy, when its evidence showed lack of coverage, was by prayer for a peremptory instruction rather than by motion for nonsuit. In the Warren cases the prayer was allowed. The Court directed the jury to answer the issue against the plaintiff on the ground that all the evidence showed the insured was intentionally shot and killed.

In this case the plaintiff's own evidence showed an intentional killing. That showing established lack of coverage. It showed also a bar under the exclusion clause. Either was fatal to plaintiff's cause, requiring nonsuit.

The judgment of the Superior Court of Johnston County is


Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.