Skillman v. Phoenix Mut. Life Ins. Co., 256

• Court: North Carolina Supreme Court
• Writing for the Court: DENNY
• Citation: Skillman v. Phoenix Mut. Life Ins. Co., 127 S.E.2d 789, 258 N.C. 1 (N.C. 1962)
• Decision Date: 31 October 1962
• Docket Number: No. 256,256
• Parties: Louise Yurt SKILLMAN v. PHOENIX MUTUAL LIFE INSURANCE COMPANY, a Corporation. Louise Yurt SKILLMAN v. ACACIA MUTUAL LIFE INSURANCE COMPANY, a Corporation.

Page 789

127 S.E.2d 789

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.

Oct. 31, 1962

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.

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 causation--not upon the accidental nature of the ultimate sequence 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,...