Wilson v. Inter-Ocean Casualty Co.

• Decision Date: 04 November 1936
• Docket Number: 307.
• Parties: WILSON v. INTER-OCEAN CASUALTY CO.
• Court: North Carolina Supreme Court

188 S.E. 102

210 N.C. 585

WILSON v. INTER-OCEAN CASUALTY CO.

No. 307.

Supreme Court of North Carolina

November 4, 1936

Appeal from Superior Court, Pitt County; J. Paul Frizzelle, Judge.

Action by Myrtle H. Wilson against Inter-Ocean Casualty Company. From a judgment for the plaintiff, the defendant appeals.

No error.

Inaccuracy in contention stated by court in charge cannot be called to court's attention after verdict, but must be called to court's attention at the time when made.

This is an action brought by plaintiff against defendant to recover $2,500 on an accident insurance policy A-8-1,383469 in defendant's company, executed December 15, 1933, on the life of her husband, R. C. Wilson, provided he came to his death from the effects of bodily injury caused directly by external, violent, and accidental means, and the death resulted from such injury within 30 days from the date of the injury. Plaintiff was the beneficiary under the policy. The premium had been paid.

R. C Wilson was fatally injured in an automobile accident near Graingers Station in Lenoir county, N. C., on December 12 1934, at 11:05 p. m., while riding as a passenger in an automobile, and died the next day from the injury sustained. The policy was in full force and effect, and the defendant was notified pursuant to the terms of the policy.

The defendant denied the material allegations of the complaint and for a further answer set up the following defense "That the defendant is informed, advised and believes and upon such information, advice and belief alleges that at the time the said R. C. Wilson sustained the injury complained of, the said R. C. Wilson was intoxicated or under the influence of or affected by alcoholic liquors and intoxicants and that said injuries resulted directly or indirectly from intoxicants or narcotics and while the said R. C. Wilson was violating the laws of the State of North Carolina, and such violation and intoxication was the direct cause of said injuries, and the defendant specifically pleads the general provisions, conditions and limitations of its said policy in bar of any recovery in this action, and herein incorporates said general provisions to the same full extent as though the same were herein copied word for word and specifically pleads in bar of any recovery in this action Section 8, of the general provisions of said policy, which are as follows: 'The insurance under this policy does not cover any loss, fatal or otherwise, sustained: while intoxicated or under the influence of or affected by, or resulting directly or indirectly from intoxicants or narcotics; while violating the law, if such violation is the direct cause of the accident; any loss contributed to or caused by any mental or bodily infirmity,' and the defendant is advised and so alleges that at the time of said accident the injury complained of, the said R. C. Wilson was violating the terms, conditions and provisions of said policy and the defendant specifically pleads such violation and limitation of said policy in bar of any recovery in this action."

The facts: The insured, R. C. Wilson, was fatally injured in an automobile accident about 11:05 p. m., the night of December 12, 1934, on the Kinston-Greenville Highway, at Graingers Station, while an occupant in a Chevrolet coupé, one-seat car, the property of W. J. Hardee, and occupied by W. J. Hardee, R. C. Wilson, and one Jesse Jones, driver of the car, all three in one seat. The car was being driven at a high rate of speed toward Kinston from Greenville, and failed to make a curve, left the highway and turned over several times, coming to rest on the railroad tracks. W. J. Hardee was instantly killed; R. C. Wilson, the insured, fatally injured, and Jesse Jones was only slightly injured and disappeared from the scene of the accident shortly after the first persons on the scene arrived. Jesse Jones was not available as a witness on the trial, having been killed by a hit-and-run driver a few days prior thereto. The defendant's evidence tended to show that the insured, R. C. Wilson, and W. J. Hardee on the day prior to the night of the accident were in attendance upon a hogkilling on the Hardee farm, adjacent to the town of Greenville, at which there was much drinking during the day on and off at the hogkilling. Wilson was drinking. In the words of defendant's witness, T. E. Pollard: "He was what I would call drinking. He was jolly good, but did not stagger. He stayed about one way all day. The last time I saw him, about three o'clock, his condition was the same." During the course of the hogkilling, Mr. Wilson bet Mr. Hardee a pint of liquor on the weight of the hogs, and Wilson won the bet. Pollard testified: "I don't know whether he got the pint of liquor or not." Wilson ate no food during the day at the hogkilling. On cross-examination, he testified: "There was seven men present at the hogkilling. I did not see but two points of whiskey out there. I think pretty much all seven men took a drink. All seven men took a drink out of the two pints. The hogkilling started at nine o'clock and between nine o'clock and three o'clock all seven men drank two pints of whiskey. I said he was not drunk. I say he could attend to his business. He did do it. He did not seem to stagger any."

Between 4 and 5 o'clock on the afternoon prior to the night of the accident, Mr. Wilson and Mr. Hardee were found in Mr. Hardee's Chevrolet coupé on a dirt road about three miles southeast of Greenville, parked on the left side of the road, stalled in a ditch, with lights on the car and the door of the car open into the road, blocking the road, by the witness, Arthur Denton, who was accompanied by one Jesse Jones. Mr. Wilson came out of a house and asked Denton to help him get into town, stating he, Wilson, could not drive the car, and that Hardee was too drunk to drive. Jesse Jones, who was riding with Denton, offered to drive the car for Wilson and Hardee and joined Wilson and Hardee and drove the car in a direction away from Greenville. This was around 5 o'clock p. m., preceding the night of the accident. At about 11:05 p. m., the coupé (single seat) being driven in the direction of Kinston on the Greenville-Kinston Highway, occupied by Wilson, the insured, Hardee and Jones, at a high rate of speed, failed to make a curve at the railroad crossing at Graingers Station, left the highway, ran head-on into an embankment and turned over, killing Hardee instantly and fatally injuring Wilson. Jesse Jones was only slightly injured and able to leave the scene of the accident immediately after its occurrence. Wilson was thrown six or eight feet from where the car finally rested. A pint bottle of whisky, half full, was found on the scene. Wilson was carried to the Parrott Memorial Hospital in Kinston at approximately 12 o'clock. He had been drinking and there was a strong odor of alcohol upon his breath. He was unconscious from the accident and died the following day. Jack Taylor testified: "I detected the odor of alcohol of whiskey upon him. It was as strong as I ever detected, I think. It was my opinion that night he was under the influence of intoxicating liquor."

The plaintiff contended that the insured, Wilson, was not intoxicated or under the influence or effects of intoxicating liquor, or granting that he was drinking and intoxicated and affected by liquor during the day preceding the night of the accident, that he had fully recovered therefrom. Plaintiff offered evidence of witnesses who saw and talked to the insured between the hours of 3 and 8:30 o'clock p. m., on the day of the accident, and none of them detected the odor of alcohol about the deceased, and all of whom declared that so far as they could tell, the insured was sober. Several witnesses were introduced who went to the scene of the wreck all of whom testified that they came in close contact with the insured, handled him, and put him in the automobile, and that they did not detect on him the odor of alcohol, and that so far as they could tell insured had not been drinking. After the insured had been taken to the hospital at Kinston, Dr. M. T. Frizzelle, a reputable physician of Ayden and brother-in-law to W. J. Hardee, who was killed in the same accident, Jack Spain, a lawyer of Greenville and son-in-law of W. J. Hardee, and S. G. Wilkerson, an undertaker of Greenville, went to the hospital where insured had been carried. Dr. Frizzelle testified in part: "I bent down close to his face for the purpose of smelling his breath, in about six inches, something like that. I didn't detect...