Horn v. Protective Life Ins. Co., 33

• Court: North Carolina Supreme Court
• Writing for the Court: RODMAN
• Citation: Horn v. Protective Life Ins. Co., 143 S.E.2d 70, 265 N.C. 157 (N.C. 1965)
• Decision Date: 23 July 1965
• Docket Number: No. 33,33
• Parties: George R. HORN v. PROTECTIVE LIFE INSURANCE COMPANY.

Page 70

143 S.E.2d 70

265 N.C. 157

George R. HORN v. PROTECTIVE LIFE INSURANCE COMPANY.

No. 33.

Supreme Court of North Carolina.

July 23, 1965.

Van Winkle, Walton, Buck & Wall, Herbert L. Hyde, Asheville, for defendant appellant.

Hamrick & Jones, Rutherfordton, for plaintiff appellee.

RODMAN, Justice.

The first and principal question debated in the briefs and on oral argument is directed to the motion to nonsuit. Defendant asserts the court's ruling was erroneous for two reasons:

First, plaintiff alleged, and defendant denied, that proof of loss required by the policy had been given. Plaintiff must establish compliance with policy provisions to recover, and proof of loss is a condition precedent. If this case had been tried on the theory that plaintiff had not filed proof of loss, as required by the policy, we would feel compelled to reverse for that reason; but it is manifest from the record, and tacit admission in appellant's brief, that the court and counsel understood that defendant's liability depended on proof at the trial that insured's death was the result of injuries, as defined in the policy. Defendant did not tender an issue relating to proof of death. It requested no instruction relating to proof. It is stated in appellee's brief that defendant paid the $10,000 called for by the policy proper, by check, stating it was in full settlement of all claims against defendant. Plaintiff declined to accept the check as a full settlement. It was cashed with the understanding that it would not in any manner affect plaintiff's right to maintain this action.

Defendant's position was a waiver of its formal denial in its answer that plaintiff had not filed proof of loss. To hold otherwise would not only be unjust to the litigants but unjust to the court and the counsel that participated in the trial.

The second reason assigned to support the motion to nonsuit is not so easily disposed of. An interpretation of the insuring provisions of the Accidental Death Supplement is necessary to ascertain the extent of defendant's obligation under its contract, and the application of the evidence to the contractual obligations.

Plaintiff has the burden of proof. His evidence must be sufficient to permit a jury to find death resulted directly and independently of all other causes from bodily injuries caused directly and exclusively by violent and accidental means. Langley v. Durham Life Insurance Co., 261 N.C. 459, 135 S.E.2d 38; Slaughter v. State Capital Life Insurance Co., 250 N.C. 265, 108 S.E.2d 438; Penn v. Standard Life & Accidental Insurance Co., 158 N.C. 29, 73 S.E. 99, 42 L.R.A.,N.S., 593; Tix v. Employers Casualty Company, Tex.Civ.App., 368 S.W.2d 105; Hume v. Standard Life & Accident Insurance Co., Okl., 365 P.2d 387; New York Life Insurance Co. v. Rees, Ky., 341 S.W.2d 246; Newton v. Colonial Life & Accident Insurance Co., D.C., 149 F.Supp. 113; Dauphin Deposit Trust Co. v. Lumbermens Mut. Cas. Co., 171 Pa.Super. 86, 90 A.2d 349; Lucas v. Metropolitan Life Ins. Co., 339 Pa. 277, 14 A.2d 85, 131 A.L.R. 235; Calkins v. National Travelers' Ben. Ass'n of Des Moines, 200 Iowa 60, 204 N.W. 406, 41 A.L.R. 363.

The evidence is sufficient to permit a jury to find these facts:

Insured died between 1:00 and 2::30 a. m. on Sunday, January 13, 1964. He was 72 years of age. He and his son were partners. Their business was extensive. They had the franchise for the Buick automobile at Forest City. They operated a used car lot. They had extensive real estate holdings, including rental properties and a small farm near Bostick. Insured looked after the real estate business and the farm, supervising the maintenance and repair of the buildings. He was active in buying and selling livestock, which he took to the farm for resale. His principal work in connection with the automobile business was in driving cars to and from dealers in other towns to Forest City.

During the week preceding his death, he had driven a car from Greensboro to Forest City; and about three weeks prior thereto, he had driven a car from Atlanta to Forest City. On Friday, prior to his death, he purchased four calves. He loaded and hauled these to his farm. He worked all day on Saturday prior to his death. He worked until the usual closing time, 6 to 7 p. m. He seemed to those who saw him at work on Saturday to be in good health.

About 8:30 p. m. he and a companion, pursuant to a prior agreement, left for insured's camp near Marion. There they prepared and ate an oyster stew. After supper they looked at television. During that period he appeared to his companion to be in good health. He looked for his medicine but could not find it. They left for home about 1:00 a. m. It was cold, raining and sleeting. Ice on the windshield was brushed off with a sack. The companion testified: 'The windshield wipers were working but it was very poor on account of the ice, rain and weather.' Because the road was slick, insured was driving 15-25 miles per hour. The companion felt the rear end of the car slide. It ran off the paved portion of the highway, across two ditches, through woods, down a 90 foot embankment, coming to rest only when it violently collided with a large tree.

As soon as the vehicle came to rest, the companion turned off the ignition switch and jumped out. He proceeded immediately to the highway to seek assistance. Perhaps an hour elapsed before help arrived.

The first person to see the insured after the car left the highway expressed the opinion insured was then dead. 'He had his arms upon the steering wheel, his head down like this. I walked around to the other side of the car and Mr. Horn went over to the right and his arms dropped down to the passenger side. * * * Mr. Horn's body was not lying down in the front seat. It was kind of slumped over that way. He was still half sitting up and half laying over in the seat. As to his hands, as I remember, one hand was down on his leg and in his lap.' A few minutes thereafter, insured was placed on a stretcher and taken to a hospital. The coroner saw the body at the hospital about 2:30 a. m. He testified: 'I observed Mr. R. R. Horn after I got to the hospital. He was then dead. I observed that he was bruised on the right side of his forehead, with cuts and bruises and blood running down his eyes.'

A highway partolman responded to the call for assistance. He reached the wreck between 1:30 and 2:00 a. m., about 15 minutes ahead of the ambulance. He expressed the opinion that insured was dead when he first saw him. He described insured's position in the automobile. He testified as to the location of the automobile, the fact that it had hit a large tree, rendering it impossible for one to get out of the driver's side. He made no reference to any signs of external injuries, merely saying, 'I noticed there was saliva or mucous coming out of his mouth dripping on the seat.'

Plaintiff arrived at the hospital shortly after the ambulance. His father was then dead. Describing the body, he said: 'With reference to my father's head and face, I saw the whole right-hand side of his face, he was blue up through here above his eye and all in here and he had a cut across his eye here, right along here and there was blood in his right eye and some running down his face.'

An autopsy was made by Dr. Reese, pathologist, on Sunday morning, the 13th. He testified:

'[T]he external auditory canals were free from blood and fluid and there were superficial laceration or cut over the right eyebrow, these associated with a few mild excorations [sic] of the skin. A superficial laceration is a very small cut. Mild excorations [sic] are scratches on the skin in that particular area. There was also some bleeding into the soft tissues of the skin and subcutaneous tissue, that is right under the skin, over the right forehead. The neck was normal in contour and there was a superficial scratch on the left side of the chin. * * * There was a superficial laceration over the posterior aspect of the right hand and bruises and superficial excoriations, involving the skin and soft tissues of each knee.'

He testified there was no evidence of blood or injury to the brain or other organs of the body, other than the heart.

'The heart weighed 550 grams, enlarged about 10 to 15%. There was superficial scars on the surface of the heart. On opening the heart, there was extensive scarring, some softening and also old adhesions involving heart muscles itself. The chambers of the heart were normal in proportion, guarded by competent valves. The blood supply showed extensive hardening of the arteries, placques of calcium deposit. These greatly reduces the size of the vessels and there was one vessel, the left anterior had a very small blood clot. The aorta, and the great vessels of the body were essentially normal, but did show extensive harding of the arteries, arteriosclerosis. * * * There were gall stones in the gall bladder and some scarred areas near the fundus.

'In regard to those supervicial [sic] lacerations or scratches on the skin on the outside of the body, I have an opinion satisfactory to myself as to whether or not they were of major importance sufficient to produce death, and in my opinion they were minor and they did not represent major injuries to the body or the organs contained therein. * * * I have an opinion satisfactory to myself as to the cause of the death of Mr. R. R....