Annotate this Case

118 S.E.2d 909 (1961)

254 N.C. 286

Marjorie GRAY, formerly Marjorie Clark, v. STATE CAPITAL LIFE INSURANCE COMPANY.

No. 161.

Supreme Court of North Carolina.

March 22, 1961.

*911 Horn & West, Shelby, for plaintiff appellant.

Allen, Hipp & Steed, Raleigh, Falls, Falls & Hamrick, Shelby, for defendant appellee.

DENNY, Justice.

The plaintiff assigns as error the admission in evidence in the hearing below of a statement made by the insured to an officer who arrived at the scene of the shooting a few minutes after it occurred. The officer found Clark lying on the ground at the point where he had been shot and inquired of him as to what happened. He said: "We tried to break in and I got shot."

Spontaneous utterances, in order to be a part of the res gestae, must be made "during the happening of the main transaction or immediately and instantly after the transaction and in direct connection with it. They must be forced out, as it were, as the utterance of truth; they must be declarations as to something being done, and not as to what has been done." Bumgardner v. Southern R. R., 132 N.C. 438, 43 S.E. 948, 950; Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757; Johnson v. Meyer's Co., 246 N.C. 310, 98 S.E.2d 315.

Since some time elapsed between the shooting and the arrival of the officer who interrogated Clark, the statement was not admissible as a part of the res gestae. However, we think this statement was admissible as a declaration against interest.

The policy of insurance involved, in addition to the death benefits provided therein, contains provisions for hospital benefits and nursing fees, not exceeding $300 for each, if such hospital benefits and nursing fees are required as the result of an accident. The policy also provides for the payment of an amount not exceeding $50 for physician's or surgeon's fees, if such fees are required as the result of such accident. Provision is further made for the payment of a weekly income of $50 for four weeks if the insured is confined in a hospital as the result of an accident, provided such accidental injuries do not result in any of the losses provided for in Part I of the policy. Moreover, the insured reserved the right to change the beneficiary in the policy without the consent of the beneficiary. Therefore, the plaintiff had no vested interest in this policy at the time the statement under consideration was made. Pollock v. Household of Ruth, 150 N.C. 211, 63 S.E. 940; Wooten v. Order of Odd Fellows, 176 N.C. 52, 96 S.E. 654.

In Whitford v. Insurance Co., 163 N.C. 223, 79 S.E. 501, a written note from the insured to his wife, in which it appeared the insured was contemplating suicide, was held to be properly admitted as a declaration against interest in an action brought to recover on a life insurance policy.

Likewise, in Schaffner v. Equitable Life Assur. Soc., 290 Ill.App. 174, 8 N.E.2d 212, which involved an action upon the double indemnity provision in a life insurance policy, it was held that statements of the insured made prior to his death, after he had been shot by an officer, in which the insured admitted he had entered into a conspiracy to commit burglary and was upon the premises to be robbed at the time he and his accomplice were apprehended, was held to be admissible as a declaration against interest. Smith v. Moore, 142 N.C. 277, 55 S.E. 275, 7 L.R.A.,N.S., 684; Benefit Ass'n of Railway Employees v. Armbruster, 221 Ala. 399, 129 So. 78; Brown v. Mystic Workers of the World, 151 Ill.App. 517.

It is said in 31 C.J.S. Evidence § 218(b), p. 960, et seq.: "Where a declarant is unavailable as a witness because of his death, it is well settled that evidence may, in a proper case, be received of his declarations against his interest, whether or not such declaration are part of the res gestae. The absence of privity between declarant and the parties to the suit does not preclude the admission of his declarations, *912 provided they were adverse to his interests." See also 20 Am.Jur., Evidence, Section 556, page 467, et seq.

The plaintiff is relying on the case of Evans v. Junior Order, 183 N.C. 358, 111 S.E. 526, as authority for the exclusion of the insured's declaration in this case. We think the cases are distinguishable and that the Evans case is not controlling on the facts in the present case. This assignment of error is overruled.

The second assignment of error is based on the plaintiff's objection to the verdict, the denial of her motion for a new trial, and to the signing of the judgment based on the verdict.

Therefore, the question posed for determination is whether or not the insured's death was the result of accidental means within the terms of the policy.

Our Court has pointed out in a number of decisions that there is an important and fundamental distinction between an "accidental death" and one produced by "accidental means." Harris v. Jefferson Insurance Co., 204 N.C. 385, 168 S.E. 208; Mehaffey v. Provident Insurance Co., 205 N.C. 701, 172 S.E. 331; Scott v. Aetna Insurance Co., 208 N.C. 160, 179 S.E. 434; Fletcher v. Security Life & Trust Co., 220 N.C. 148, 16 S.E.2d 687, 688.

In Fletcher v. Security Life & Trust Co., supra, this Court said: "`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. Under the majority view the emphasis is upon the accidental character of the causationnot upon the accidental nature of the ultimate sequence of the chain of causation."

In the case of Clay v. State Insurance Co., 174 N.C. 642, 94 S.E. 289, 290, L.R.A. 1918B, 508, in construing the policy of insurance, this Court said: "* * * (I)n case of death by `external, violent, and accidental means,' without more, we hold that the true test of liability in cases of this character is whether the insured, being in the wrong, was the aggressor, under circumstances that would render a homicide likely as the result of his own misconduct."

In Scarborough v. World Insurance Co., 244 N.C. 502, 94 S.E.2d 558, 561, the insured, Adrian C. Midgett, advanced upon one Baldwin, using vituperative language, and continued to advance as if he intended to do violence to Baldwin's person. Baldwin was on the front porch of his home; he pushed Midgett backwards; Midgett fell and struck his head on a water meter from which injury he died ten days later. The Court held this not to be death by accidental means. Devin, J., later C. J., said: "Where the policy insures against loss of life through accidental means, the principle seems generally upheld that if the death of the insured, although in a sense unforeseen and unexpected, results directly from the insured's voluntary act and aggressive misconduct, or where the insured culpably provokes the act which causes the injury and death, it is not death by accidental means, even though the result may be such as to constitute an accidental injury. 45 C.J.S. Insurance § 753, p. 779."

In construing an identical provision in a policy of insurance as that now before us, in the case of Mehaffey v. Provident Insurance Co., supra [205 N.C. 701, 172 S.E. 333], we said: "The liability clause of the policy of insurance rested upon death or injury `solely through external, violent and accidental means.' Therefore, in order to warrant recovery for death in such event, such death must not only be accidental but must be produced by `accidental means.'"

We think the facts in this case justify the conclusion reached by the court below, to the effect that the conduct of the insured was such that a reasonably prudent person would or should have known or anticipated that his own misconduct in attempting to break into the store operated *913 by Mr. Lovelace, and in which building Mr. and Mrs. Lovelace maintained and occupied living quarters, would create circumstances that would render a homicide likely.

Therefore, we hold that the death of the insured was not produced by "accidental means" within the terms of the policy.


WINBORNE, C. J., took no part in the consideration or decision of this case.