Benson v. Coastal Plain Life Insurance , 23 N.C. App. 481 ( 1974 )

MARTIN, Judge.

Defendant argues the trial court erred in submitting question three to the jury. However, the record shows the trial court merely submitted issues to the jury to which both parties had agreed. An objection and exception to the form of an issue or to its submission to the jury comes too late when taken after the jury has rendered its verdict upon the issue. Yandle v. Yandle, 17 N.C. App. 294, 193 S.E. 2d 768 (1973). Not only did defendant not object to the issue under consideration, he, in fact, agreed to it. Defendant will not be heard to complain now. Duke v. Insurance Co., 22 N.C. App. 392, 206 S.E. 2d 796 (1974).

However, we are of the opinion that the trial court committed prejudicial error in its application of the law to the facts. Even though a party is bound by his consent to the submission óf an (issue, he is entitled to a correct charge thereon. Duke v. Insurance Co., supra. While the trial court instructed the jury with regard to the interpretation of an insurance contract, there is no mention of the effect of an exclusionary clause upon the liability of an insurer. In Ritchie v. Travelers Protective Association, 203 N.C. 721, 166 S.E. 893 (1932), the Court interpreted language precluding coverage “when or while a member is in any degree under the influence of intoxicating liquor or liquors or of any narcotic or narcotics. . . .” The Court held that such language precluded liability of the insurance company even though intoxication was not causally connected to the injury. “As to whether there must be a causal connection between the insured’s injury or death and the intoxication, the courts have held with practical unanimity that wherever the insurer is released from liability in cases of injury or death ‘while’ intoxicated . . . the insurer is exonerated if injury or death occurs while the insured occupies the forbidden status. In other words, no causal relation between the two events need be shown.” 44 Am. Jur. 2d, Insurance, § 1290, p. 138.

Defendant is entitled to a new trial. Since there must be a new trial, we call attention to the following statement. “As a general rule, the construction and effect of a written contract of insurance is a matter of law, to be determined by the court and not by the jury, where there is no occasion to resort to extrinsic evidence for the purpose of resolving an ambiguity.” 1 Couch on Insurance 2d, § 15:3, p. 638-639.

New trial.

Chief Judge Brock and Judge Morris concur.