Skillman v. Phoenix Mutual Life Insurance Company

127 S.E.2d 789 (1962)

258 N.C. 1

Louise Yurt SKILLMAN v. PHOENIX MUTUAL LIFE INSURANCE COMPANY, a Corporation. Louise Yurt SKILLMAN v. ACACIA MUTUAL LIFE INSURANCE COMPANY, a Corporation.

No. 256.

Supreme Court of North Carolina.

October 31, 1962.

*792 Carswell & Justice, Charlotte, for plaintiff.

Cansler & Lockhart, Charlotte, for defendants.

DENNY, Chief Justice.

The plaintiff is entitled to recover under the terms of the policies involved if the insured came to his death, directly and independently of all other causes, from bodily injury sustained solely through external, violent, and accidental means.

On the other hand, the plaintiff is not entitled to recover if at the time of the accident there was an existing disease or illness which cooperated with or contributed to the accident which resulted in his death. Such an accident cannot be considered as the sole cause or as the cause independent of all other causes.

*793 The appellant assigns as error the following portions of the court's charge to the jury:

"Now, the court instructs you, members of the jury, that there is a difference between accidental death and death by external, accidental means. Accidental means that which happens by chance or fortuitously without intent or design and which is unexpected, unusual, and unforeseen. 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, creating and causal factor must be accidental in the sense that it is unusual, unforeseen, and unexpected. The emphasis is upon the accidental character or causation, not upon the accidental nature of the element sequence of the chain of causation. The insurance provided in these policies is not against an accidental result. To create liability it must be made to appear that the unforeseen and unexpected result was produced by accidental means. The stipulated payment is to be made only if the death, though unforeseen and unexpected, was effected by means which are external, violent, and accidental." (EXCEPTION NO. 19)

"The court further instructs you, members of the jury, that if you should find that on this occasion in question the deceased was operating his automobile along highway 27 and that as a result of hypertension or heart attack or an arterial occlusion that he lost control of his car and it went out into the water and sank down and he was drowned, that the plaintiff could not recover and it would be your duty to answer this issue `No.'" (EXCEPTION NO. 20)

"Now, the court instructs you, members of the jury, that our courts have laid down two rules to follow in the case such as this which the court will now give you. One, when at the time of the accident the insured was suffering from some disease but the disease had no causal connection with the accident, the accident is to be considered the sole cause. Second, when at the time of the accident there was an existing disease which cooperating with the accident resulted in the injury or death, the accident cannot be considered the sole cause or as the cause independent of all other means. In other words, if the injury or death was caused by the sum of two causes, namely accident and disease, then the plaintiff cannot recover." (EXCEPTION NO. 22)

The appellant further assigns as error that portion of the following excerpt of the charge within parentheses:

"* * * (T)he court instructs you that if you should find from this evidence and by its greater weight that on this 4th day of April, 1959, that the deceased was operating his automobile along the highway and that while doing so (his automobile left the highway accidentally, as that accidental means has been defined to you, and not as the result of any disease or heart attack or physical or mental infirmity), if you should find those facts by the greater weight of the evidence and you go further and find that the movement of the car went out into the lake and that he was there drowned, the court instructs you that it would be your duty to answer the issue Yes. If you do not so find, you will answer it No * * *." (EXCEPTION NO. 23)

This Court has consistently held that there is a distinct difference in the meaning of the terms "accidental death" and "death by external accidental means." In Fletcher v. Trust Co., 220 N.C. 148, 16 S.E.2d 687, Barnhill, J., later C. J., said: "`Accidental' means that which happens by chance or fortuitously without intent or design and which is unexpected, unusual and unforeseen. 29 Am.Jur., 706, 707, Sec. 931. `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 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 *794 of the chain of causation." See also Slaughter v. State Capital Life Ins. Co., 250 N.C. 265, 108 S.E.2d 438, and cf. Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173.

In our opinion, when the evidence disclosed on this record is considered, the challenged instructions are without prejudicial error and these exceptive assignments are overruled

The appellant also assigns as error additional portions of the charge but these additional assignments would seem to involve no question of law not presented in those portions of the charge set out hereinabove.

In Russell v. Glens Falls Indemnity Co., 134 Neb. 631, 279 N.W. 287, in considering a policy of insurance similar to that before us, the Court said: "It seems reasonably clear that a policy with the phrase `resulting directly, independently and exclusively' refers to the efficient, substantial and proximate cause of the disability at the time it occurred. On the other hand, a policy which also has the phrase `wholly or partly, directly or indirectly, from disease or mental or bodily infirmity' refers to another contributory cause, whether proximate or remote. To illustrate: A person might be standing near a stone wall and become dizzy and fall and receive a serious injury. Clearly there is an accident. But if the dizziness was caused by an existing illness or disease of the insured, the illness or disease would be the remote or indirect cause of the injury. It would at least in part cause the injury. It would be a contributing and co-operating cause. But, whether a proximate or remote cause, if a contributing cause, there can be no recovery where such a cause is excluded by the policy. If the results of the accident, added to the diseased condition of an insured, produced the utimate total result, under policy having the phrase `wholly or in part, directly or indirectly,' there could be no recovery."

In Knowlton v. John Hancock Mut. Life Ins. Co., 146 Me. 220, 79 A.2d 581, the policy excluded injuries, directly or indirectly caused by disease. The insured, an alcoholic, suffered a fall which was due to his alcoholism. The fall produced skull fracture and brain hemorrhages which resulted in death. The Court said: "it is well settled that if a fall produces injuries which in turn cause death, and such fall is caused by disease, the death results at least indirectly from the disease which causes the fall. In such case, the beneficiary cannot recover the additional benefit provided for in the policy, if the policy contains, as here, a provision that the additional benefit will not be payable `if death results, directly or indirectly, or wholly or partially, or otherwise, from (1) any bodily or mental disease or infirmity.'"

In Independent Life and Accident Ins. Co. v. Causby, 94 Ga.App. 305, 94 S.E.2d 388, the plaintiff affirmatively alleged that chronic rheumatoid arthritis contributed to the death of the insured but was not the disease or condition directly causing the insured's death. The death certificate gave the cause of death, "* * * Disease or condition directly leading to death (a) Cerebral hemorrhage injury to head caused, due to (b), by fall." Under the provisions of the policy, if the physical impairment of the deceased contributed to the fall in whole or in part, directly or indirectly, then there could be no recovery. The Court said: "The only inference this court can draw from the above quoted portion of the death certificate is that chronic rheumatoid arthritis is what caused the insured to fall and that the fall in turn caused a cerebral hemorrhage which resulted in his death. Rheumatoid arthritis being a physical infirmity which contributed directly to the fall which resulted in the insured's death, there could be no recovery under the double-indemnity clause of the policy issued him."

To the same effect are the following decisions: Franklin v. Mutual Life Ins. Co. *795 of New York, 216 La. 1062, 45 So. 2d 624; McGarity v. New York Life Ins. Co., 359 Pa. 308, 59 A.2d 47; Prudential Ins. Co. of America v. Van Wey, 223 Ind. 198, 59 N.E.2d 721; Lederer v. Metropolitan Life Ins. Co., 135 Pa.Super. 61, 4 A.2d 608; Puszkarewicz v. Prudential Life Ins. Co. of America, 161 Pa.Super. 500, 55 A.2d 431; New England Mut. Life Ins. Co. v. Fleming, 9 Cir., 102 F.2d 143.

In Penn v. Standard Life & Accidental Insurance Co., 158 N.C. 29, 73 S.E. 99, 42 L.R.A.,N.S., 593, this Court, in quoting from cases in other jurisdictions said in effect that where the insured's policies are ambiguous in their terms they are to be construed liberally in favor of the insured, but that "* * * plain, explicit language cannot be disregarded, nor an interpretation given the policy at variance with the clearly disclosed intent of the parties." In this case there was a provision excluding coverage for injury arising directly or indirectly from bodily disease. The Court quoted from White v. Standard Life & Accidental Insurance Co., 95 Minn. 77, 103 N.W. 735, saying, "`* * * (I)f the injury be the proximate cause of death, the company is liable, but, if an injury and an existing bodily disease or infirmity concur and co-operate to that end, no liability exists. * * * The rule of proximate cause, as applied to actions of negligence, cannot be applied in its full scope to contracts of this nature.'"

The Penn case was here on a petition to rehear in 160 N.C. 399, 76 S.E. 262, 42 L.R.A.,N.S., 597, and the Court laid down the following rules:

"(1) When an accident caused a diseased condition, which together with the accident resulted in the injury or death complained of, the accident alone is to be considered the cause of the injury or death.

"(2) When at the time of the accident the insured was suffering from some disease, but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause.

"(3) When at the time of the accident there was an existing disease, which, cooperating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause or as the cause independent of all other causes."

We hold that the evidence in this case brings it within Rule 3 as laid down in the Penn case. Other assignments of error, in our opinion, present no prejudicial error and are overruled.

In the trial below, we find

No error.