Mills v. State Life & Health Ins. Co.

• Decision Date: 08 April 1964
• Docket Number: No. 316,316
• Citation: Mills v. State Life & Health Ins. Co., 135 S.E.2d 586, 261 N.C. 546 (N.C. 1964)
• Parties: Edward Ward MILLS, Administrator of the Estate of James Ward Mills v. The STATE LIFE AND HEALTH INSURANCE COMPANY, Inc.
• Court: North Carolina Supreme Court

Page 586

135 S.E.2d 586

261 N.C. 546

Edward Ward MILLS, Administrator of the Estate of James Ward Mills v.The STATE LIFE AND HEALTH INSURANCE COMPANY, Inc.

No. 316

Supreme Court of North Carolina.

April 8, 1964

Dees, Dees & Smith and William L. Powell, Jr., Goldsboro, for plaintiffappellant.

Taylor, Allen & Warren, Goldsboro, for defendantappellee.

BOBBITT, Justice.

Two questions are presented: (1) Did the death of Mills result 'directly and independently of all other causes from accidental bodily injuries (excluding suicide or any attempt thereat, while sane or insane)' within the meaning of the policy?(2) If so, did the policy and rider provide coverage for Mills when 'he was not engaged in any of the duties pertaining to his occupation or self-employment? ' Affirmative answers to both questions are prerequisite to recovery.

'In the absence of any policy provision on the subject, it is a well-established rule that where an insured is intentionally injured or killed by another, and such injury or death is not the result of misconduct or an assault by the insured, but is unforeseen in so far as he is concerned, the injury or death is accidental within the meaning of an accident insurance policy, and the insurer is liable.'29A Am.Jur., Insurance§ 1192;45 C.J.S.Insurance§ 772; Annotations: 20 A.L.R. 1123, 57 A.L.R. 972, 116 A.L.R. 396.As noted in Nationwide Mutual Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654, such injury (death) is by 'accident' under our Workmen's Compensation Act.SeeWithers v. Black, 230 N.C. 428, 53 S.E.2d 668.

Decisions supporting said rule listed in 20 A.L.R. 1123 are cited with approval in Clay v. State Insurance Co., 174 N.C. 642, 645, 94 S.E. 289, L.R.A.1918B, 508, and later decisions listed in 57 A.L.R. 972 and in 116 A.L.R. 396 are cited with approval in Fallins v. Insurance Co., 247 N.C. 72, 75, 100 S.E.2d 214.

In Clay v. Insurance Co., supra, Scarborough v. World Insurance Co., 244 N.C. 502, 94 S.E.id 558, andGray v. State Capital Insurance Co., 254 N.C. 286, 118 S.E.2d 909, decision was based on the legal principle stated in Scarborough by Devin, formerly Chief Justice but then serving as Emergency Justice, as follows: '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. ' This excerpt from the opinion of Hoke, J. (later C.J.), in Clay is quoted with approval in Scarborough and in Gray: '* * * in 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 a result of his own misconduct.''

In each of the following decisions, the policy under consideration provided insurance against loss (death) resulting from bodily injuries effected solely through 'external, violent, and accidental means': Clay v. State Insurance Co., supra;Powers v. Travelers' Insurance Co., 186 N.C. 336, 119 S.E. 481;Warren v. Pilot Life Insurance Co., 212 N.C. 354, 193 S.E. 293; s. c., 215 N.C. 402, 2 S.E.2d 17; s. c., 217 N.C. 705, 9 S.E.2d 479;s. c., 219 N.C. 368, 13 S. E.2d 609;Whitaker v. Jefferson Standard Life Insurance Co., 213 N.C. 376, 196 S.E. 328;Fallins v. Durham Life Ins. Co., 247 N.C. 72, 100 S.E.2d 214;Goldberg v. United Life & Acc. Insurance Co., 248 N.C. 86, 102 S.E.2d 521;Slaughter v. State Capital Insurance Co., 250 N.C. 265, 108 S.E.2d 438;Gray v. State Capital Insurance Co., supra.

In Warren, Whitaker, Fallins, Slaughter and Gray, a policy provision excluded from coverage death resulting from bodily injuries intentionally inflicted by another person.Also, seePatrick v. Pilot Life Insurance Co., 241 N.C. 614, 86 S.E.2d 201.In Powers, the policy provision excluded from coverage 'death resulting wholly or partly from * * * 'firearms.' ' In Goldberg, the policy provision excluded from coverage death resulting 'from homicide.'Where recovery was denied, decision was based on such exclusionary provision.

While there is a division of authorty elsewhere (see29 A Am.Jur., Insurance§ 1166andComment Note, 166 A.L.R. 469), this Court has consistently drawn a distinction between the terms 'accidental death' and 'death by accidental means.'Fletcher v. Security Life & Trust Co., 220 N.C. 184, 16 S.E.2d 687, and cases cited.For later cases, seeStrong, N.C.Index, Insurance§ 34.

Attention was called to this distinction in Scarborough v. Insurance Co., supra, where the policy insured against loss of life 'resulting directly and independently of all other causes from bodily injuries sustained during any term of this policy through purely accidental means.'

Here, the insurance is against '(l)oss resulting directly and independently of all other causes from accidental bodily injuries (excluding suicide or any attempt thereat, while sane or insane) * * *' Moreover, the policy contains no provision excluding from coverage death resulting from bodily injuries intentionally inflicted by another person.Nor does it contain any other exclusionary provision.

The word 'accidental,' in the absence of a policy definition, must be interpreted in its usual, ordinary and popular sense.Clay v. State Insurance Co., supra;Iowa Mutual Insurance Co. v. Fred M. Simmons, Inc., 258 N.C. 69, 74, 128 S.E.2d 19.In Clay, Hoke, J.(later C. J.), quotes with approval this definition of 'accident': '[A]n event which, under the circumstances, is unusual and unexpected by the person to whom it happens.'In Fallins, Higgins, J., states: '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 is unintended, unexpected, unusual, or unknown.'Again: '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.'

Appellee relies largely on Slaughter v. State Capital Insurance Co., supra.Conceding there are expressions in the opinion that are favorable to appellee's contention, the primary basis on which recovery was denied in Slaughter was the fact that plaintiff's evidence affirmatively established that the insured's death...