Clay v. State Ins. Co

• Decision Date: 28 November 1917
• Docket Number: (No. 101.)
• Citation: 94 S.E. 189,174 N.C. 642
• Court: North Carolina Supreme Court
• Parties: CLAY . v. STATE INS. CO.

94 S.E. 189

(174 N.C. 642)

CLAY .

v.STATE INS. CO.

(No. 101.)

Supreme Court of North Carolina.

Nov. 28, 1917.

[94 S.E. 289]

Appeal from Superior Court, Bertie County; Allen, Judge.

Action by Mrs. Allie Clyde Clay, administratrix, against the State Insurance Company. Judgment for plaintiff, and defendant appeals. New trial granted.

The action was to recover a double indemnity of $1,000, claimed on a policy of insurance on one George E. Clay, deceased, who was killed in a fight with one Sullivan on the 2d day of April, 1915. The policy, bearing date in 1909, and on which the premiums had been regularly paid, insured the life of said George E. Clay in the sum of $1,000, and contained a stipulation for double indemnity of $1,000, in terms as follows:

"During the premium paying period of this policy, and excluding any time while the same may be in force, as extended insurance, all premiums having been duly paid, and this policy being then in force, in the event of the death of the insured, resulting from bodily injury, sustained and effected directly through external, violent, and accidental means (suicide, sane or insane, not included), exclusively and independently of all other causes, provided such death snail occur within 90 days from the date of the accident, the company will pay to the beneficiary or beneficiaries hereunder, in addition to the amount otherwise due, the sum of one thousand dollars."

The policy also contained a clause withdrawing certain cases from the risks covered by the policy, among them the following:

"If the insured shall, whether sane or insane, die by his own hand or act, or die in consequence of the violation of law, within one year from the date hereof, this policy shall be null and void and all payment therefor shall be forfeited."

On proof of death duly made, the $1,000 principal insurance was paid and received "without prejudice, " and, in this suit for double indemnity of $1,000, recovery was resisted by defendant company on the ground:

"That the death of the insured was brought on by his own unlawful conduct in attacking one Sullivan with a deadly weapon, and that said death was not the result of 'external, violent, and accidental means (suicide, sane or insane, not included), exclusively and independently or all other causes.' "

The testimony of an eyewitness bearing directly on the occurrence was as follows:

"I knew the late George E. Clay. I don't know the exact date that he was killed. I was in about 20 steps of him when he was killed. I was in my lot, and he was in the public road. He was shot by Mr. Lester Sullivan. That killed him. I could not tell you how long he lived after he was shot, but not, in my opinion, to exceed five minutes."

Cross-examination:

"I lived in that community, and on the land I owned, in Bertie county. I am sometimes called Robert or Bob. This occurrence between George E. Clay and Lester Sullivan took place in 20 steps of my lot. A man named Robert Peele was moving off of my place. lie was moving himself, and was going to another place he had rented. He had several teams, and among them Mrs. Felton's team and his father's team. Mr. Lester Sullivan was driving one of the carts, Mrs. Felton's cart. I was in my barn at "first, shelling corn. I heard them talking in the road. Clay was using oaths and cursing Sullivan. '1 will kill you, ' he said. I went out of the barn and into the lot, and when I stepped into the lot out of the barn I heard Clay say, '1 will kill you.' Sullivan was then standing with his arms folded across his breast, and Clay slapped him in the face with his hand. Clay then went and got a pole, a pea pole, about three or four feet long. Clay then struck at Sullivan with the pole, and Sullivan warded off the lick and grabbed Clay around the neck and was holding him. The next thing I heard was the report of the pistol, and I saw smoke from a pistol behind Sullivan. The two men were then right together. Then I saw Sullivan run his hand into his shirt bosom, pull out a pistol, and put it against Clay's breast and fire. The two shots came almost together. I could not say who shot the first pistol. "I could not tell, from all the facts, who fired the first shot. I know there was smoke around Sullivan when the first shot went off. Sullivan then ran his hand into his shirt bosom and got out his pistol. I did not see Sullivan have a pistol until then. Clay did have a pistol in his hand. I was in 20 steps from where it occurred. I heard Sullivan tell Clay that he was friendly with him, and to go off and let him alone; that he did not want to have any trouble. I did not see Sullivan take anything from Clay. I saw two pistols, and Clay had one and Sullivan one. The pea pole that Clay had was dropped in the road. I do not know what became of the pistol that Clay had. 1 saw Mr. Peele take it out of his hand. Four shots were fired; Sullivan shot three, and somebody else shot the other one. I could not say exactly that I heard Clay say to Sullivan he could not move the household effects of Mr. Peele. I heard Clay say, T will kill you.'"

On issue submitted as to liability and amount, the court charged the jury, if they

[94 S.E. 290]

believed the evidence, to answer the issue: "Yes; $1,000, with interest." Judgment for plaintiff, and defendant excepted and appealed.

Winston & Matthews, of Windsor, and H. S. McMichael, of Indianapolis, Ind., for appellant.

Pruden & Pruden, of Edenton, Gilliam & Davenport, of Windsor, and S. Brown Shepherd, of Raleigh, for appellee.

HOKE, J. (after stating the facts as above). [1, 2] We regard it as established by the numerous decisions on the subject that, in case of accident insurance, as expressed in the general terms of this policy, the word "a...