Scarborough v. World Insurance Co. , 244 N.C. 502 ( 1956 )

94 S.E.2d 558 (1956) 244 N.C. 502

Edna M. SCARBOROUGH
v.
WORLD INSURANCE COMPANY.

No. 22.

Supreme Court of North Carolina.

September 26, 1956.

Jack W. Marer, R. C. Andrews, Omaha, Neb., and Worth & Horner, Elizabeth City, for defendant, appellant.

Wallace R. Gray, and McCown & Mc-Cown, Manteo, for plaintiff, appellee.

DEVIN, Justice.

The policy issued to Adrian C. Midgett by the defendant insured against loss of life resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means. It was not controverted that the death of the insured resulted from an altercation with the witness Baldwin. From the testimony of this witness, who was the sole witness to the occurrence offered by the plaintiff, the conclusion seems inescapable that the insured was the aggressor; that he used the language of vituperation and fury and demonstrated an attempt to do violence to the person of the witness; that he advanced with arms raised up the steps of Baldwin's home in such a manner as to put Baldwin in fear, so much so that Baldwin was caused to push him away to protect himself and his home, and then to retreat within doors.

The policy sued on insured against loss of life resulting from bodily injuries sustained through accidental means. In Fletcher v. Security Life & Trust Co., 220 N.C. 148, 16 S.E.2d 687, Barnhill, J., drew the distinction between "accidental" and "accidental means" as these terms are used in accident insurance policies, and pointed out that the phrase "accidental means" refers to the occurrence or happening which produces the result rather than the result. Scott v. Aetna Life Ins. Co., 208 N.C. 160, 179 S.E. 434; Kirkiey v. Merrimack Mut. Fire Ins. Co., 232 N.C. 292, 59 S.E.2d 629; Ocean Accident & Guarantee Corp. v. Glover, 165 Va. 283, 182 S.E. 221. See also Michie's Jurisprudence, Law of Virginia, Insurance Sec. 128; Vance on Insurance, 569.

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. 45 C.J.S., Insurance, § 753, p. 779.

Where the insured is the aggressor in a personal encounter and commits an assault upon another with demonstration of violence and knows, or under the circumstances should reasonably anticipate, that he will be in danger of great bodily harm as the natural and probable consequence of his act or course of conduct, his injury or death may not be regarded as caused by accidental means. 45 C.J.S., Insurance, § 788, p. 827.

Where the death of the insured results from an aggressive assault upon another, whether the loss is covered by the terms of the policy insuring against death through accidental means depends on whether the death was the natural and probable consequence of the insured's aggression, and what is the natural and probable consequence thereof depends on the character of the aggression and the circumstances attending. Podesta v. Metropolitan Life Ins. Co., Mo.App., 150 S.W.2d 596.

It was said by Hoke, J., in Clay v. State Ins. Co., 174 N.C. 642, 94 S.E. 289, 290, L.R.A.1918B, 508, that "the true test of liability, in cases of that character, is whether the insured, being in the wrong, was `the aggressor under circumstances that would render a homicide likely as result of his own misconduct.'" In that case the insured was killed by a pistol shot while engaged in an affray with another.

In Mutual Ben. Health & Accident Ass'n v. Ryder, 166 Va. 446, 185 S.E. 894, 896, it was said: `One who assaults another, or voluntarily enters into an affray and is hurt, has not suffered an accident."

Applying these principles of law to the uncontradicted evidence in this case, we conclude that the death of the insured Adrian C. Midgett did not result from bodily injuries sustained through purely accidental means, and hence was not covered by the policy of insurance sued on.

We have considered the authorities cited by counsel for the appellee in their brief and the arguments they advance that the death of the insured in the manner described by the witness was not the natural and probable consequence of the conduct of the insured, but we think the character and the extent of the insured's aggression under the circumstances herein fully set out are such as to exclude the concept of death by accidental means within the meaning of the policy.

The defendant's motion for judgment of nonsuit, aptly interposed, should have been allowed.

The judgment of the Superior Court is Reversed.

JOHNSON, J., not sitting.