Fallins v. Durham Life Ins. Co., No. 96

Docket NºNo. 96
Citation100 S.E.2d 214, 247 N.C. 72
Case DateOctober 30, 1957
CourtUnited States State Supreme Court of North Carolina

Page 214

100 S.E.2d 214
247 N.C. 72
Laura FALLINS
v.
DURHAM LIFE INSURANCE CO.
No. 96
Supreme Court of North Carolina.
Oct. 30, 1957

George W. Ball, Morehead City, George M. Womble, Raleigh, by G. M. Womble, Raleigh, for defendant, appellant.

C. R. Wheatly, Jr., Beaufort, for plaintiff, appellee.

HIGGINS, Justice.

The defendant's exception to the instructions and its motion for nonsuit raise the same question--the sufficiency of the evidence to go to the jury.

In cases of this character 'the plaintiff, to establish a prima facie case, must prove: (1) the existence of the contract or policy sued on; (2) the death of the insured or the happening of the event provided for in the policy; and the giving of notice and proof of death (or other event), as required by the policy. On the other hand the burden is on the company to show a violation of conditions avoiding an otherwise valid policy, or exceptions in the policy which limit the liability of the company. ' Collins v. United States Casualty Co., 172 N.C. 543, 90 S.E. 585, 586. The burden is on the plaintiff to show the insured met his death by bodily injury effected directly through external, violent, and accidental means, and upon such a showing the defendant can [247 N.C. 75] relieve itself of liability by showing the insured's death resulted directly or indirectly from (d)

Page 217

participating in, or attempting to commit an assault or a felony; or (e) violence intentionally inflicted by another.

The only witness (except as to proof of loss) was Levi Williams, who testified in substance that upon being told his nephew and some other boy were fighting, fired his rifle at a telephone pole for the purpose of stopping the fight. 'Me wouldn't have done it for nothing. Me wanted to stop them from fighting. * * * Me did that so they would hear that so that would make them stop fighting.'

There was no evidence the insured was the aggressor in the fight or that he brought it on; no evidence that either was hurt or in danger. Williams, according to his testimony, intentionally fired a rifle at the telephone pole in order to stop the fight, but with no intent to injure either participant. The jurors heard the story. They observed the witness when he told it. They weighed the testimony and found for the plaintiff on all issues. Does the evidence show that death was effected by accidental means?

An injury is 'effected by accidental means' if in the line of proximate causation the act, event, or condition from the standpoint of the insured person is unintended, unexpected, unusual, or unknown. The unintended acts of the insured are deemed accidental. Injuries caused to the insured by the acts of another person, without the consent of the insured, are held due to accidental means unless the injurious acts are provoked and should have been expected by the insured. Vance on Insurance, 3rd ed., Sec. 181, p. 947; Warren v. Pilot Life Ins. Co., 215 N.C. 402, 2 S.E.2d 17; Powers v. Travelers' Ins. Co., 186 N.C. 336, 119 S.E. 481; Ziolkowski v. Continental Casualty Co., 365 Ill. 594, 7 N.E.2d 451; Franchebois v. New York Life Ins. Co., 171 La. 358, 131 So. 46; Hutson v. Continental Casualty Co., 142 Miss. 388, 107 So. 520; Eagan v. Prudential Ins. Co., Mo.App., ...

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26 practice notes
  • Barrino v. Radiator Specialty Co., No. 439A84
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 18, 1986
    ...daughter would be the particular victim or that death, as opposed to some lesser harm, would be the result. Fallins v. Insurance Co., 247 N.C. 72, 100 S.E.2d 214 The above analysis of N.C.R.Civ.P. 56 and relevant case law thus indicates that plaintiff has in fact shown the question of defen......
  • Town of Peterborough v. Hartford Fire Ins. Co., Civ. No. 92-50-SD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • June 9, 1993
    ...447, 392 S.W.2d 331 (1965); Fuller v. Eastern Fire & Cas. Co., 240 S.C. 75, 124 S.E.2d 602 (1962); Fallins v. Durham Life Ins. Co., 247 N.C. 72, 100 S.E.2d 214 (1957); New Hampshire Fire Ins. Co. v. Walker, 178 Ark. 319, 11 S.W.2d 772 (1928); Hawkeye Clay Works v. Globe & Rutgers Fi......
  • New Hampshire Ball Bearings v. Aetna Cas., No. C-87-457-L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • April 1, 1994
    ...447, 392 S.W.2d 331 (1965): Fuller v. Eastern Fire & Cas. Co., 240 S.C. 75, 124 S.E.2d 602 (1962); Fallins v. Durham Life Ins. Co., 247 N.C. 72, 100 S.E.2d 214 (1957); New Hampshire Fire Ins. Co. v. Walker, 178 Ark. 319, 11 S.W.2d 772 (1928); Hawkeye Clay Works v. Globe & Rutgers Fi......
  • Potter v. Carolina Water Co., No. 91
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 12, 1960
    ...To exculpate itself on either of these grounds, it would carry the [253 N.C. 120] burden of proof. Fallins v. Durham Life Insurance Co., 247 N.C. 72, 100 S.E.2d 214; Thomas-Yelverton Co. v. State Capital Life Insurance Co., 238 N.C. 278, 77 S.E.2d 692; Wells v. Clayton, 236 N.C. 102, 72 S.E......
  • Request a trial to view additional results
26 cases
  • Barrino v. Radiator Specialty Co., No. 439A84
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 18, 1986
    ...daughter would be the particular victim or that death, as opposed to some lesser harm, would be the result. Fallins v. Insurance Co., 247 N.C. 72, 100 S.E.2d 214 The above analysis of N.C.R.Civ.P. 56 and relevant case law thus indicates that plaintiff has in fact shown the question of defen......
  • Town of Peterborough v. Hartford Fire Ins. Co., Civ. No. 92-50-SD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • June 9, 1993
    ...447, 392 S.W.2d 331 (1965); Fuller v. Eastern Fire & Cas. Co., 240 S.C. 75, 124 S.E.2d 602 (1962); Fallins v. Durham Life Ins. Co., 247 N.C. 72, 100 S.E.2d 214 (1957); New Hampshire Fire Ins. Co. v. Walker, 178 Ark. 319, 11 S.W.2d 772 (1928); Hawkeye Clay Works v. Globe & Rutgers Fi......
  • New Hampshire Ball Bearings v. Aetna Cas., No. C-87-457-L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • April 1, 1994
    ...447, 392 S.W.2d 331 (1965): Fuller v. Eastern Fire & Cas. Co., 240 S.C. 75, 124 S.E.2d 602 (1962); Fallins v. Durham Life Ins. Co., 247 N.C. 72, 100 S.E.2d 214 (1957); New Hampshire Fire Ins. Co. v. Walker, 178 Ark. 319, 11 S.W.2d 772 (1928); Hawkeye Clay Works v. Globe & Rutgers Fi......
  • Potter v. Carolina Water Co., No. 91
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 12, 1960
    ...To exculpate itself on either of these grounds, it would carry the [253 N.C. 120] burden of proof. Fallins v. Durham Life Insurance Co., 247 N.C. 72, 100 S.E.2d 214; Thomas-Yelverton Co. v. State Capital Life Insurance Co., 238 N.C. 278, 77 S.E.2d 692; Wells v. Clayton, 236 N.C. 102, 72 S.E......
  • Request a trial to view additional results

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