Harris v. Jefferson Standard Life Insurance

Connor, J. Tbe defendant on its appeal to this Court contends tbat there was error in tbe refusal of tbe trial court to allow its motion made at tbe close of all tbe evidence, tbat tbe action be dismissed by judgment as of nonsuit, for tbat there was no evidence at tbe trial tending to show tbat tbe death of tbe insured was tbe result of a bodily injury effected solely through accidental means. Tbe defendant concedes tbat there was evidence tending to show tbat tbe death of tbe insured was acci *388 dental in the sense that it was the unexpected and unforeseen result of the injury suffered by the insured while he was playing in the game of basketball. It contends, however, that the bodily injury which the insured suffered was not accidental in that sense, but was the probable result of the game in which the insured had voluntarily engaged, and that for this reason the defendant is not liable to the plaintiff in this action under the provisions of the double indemnity clauses in the policies issued by the defendant and insuring the life of Robert Hester Harris, 'deceased. The distinction between an accidental death and a death by accidental means has been recognized and applied by courts of other jurisdictions in actions to recover on provisions in policies of insurance similar to those contained in the double indemnity clause involved in this action. No case involving such distinction has heretofore been presented to this Court. The distinction, however, was recognized and applied by the Supreme Court of California in Rock v. Travellers Insurance Co., 156 Pac., 1029, L. R. A., 1916E, 1096, by the Supreme Court of Rhode Island in Kimball v. Massachusetts Accident Co., 117 Atl., 228, 24 L. R. A., 126, and by the Supreme Court of Tennessee in Stone v. Fidelity & Casualty Co., 133 Tenn., 613. In each of these cases, it was held that where the death of the insured resulted from his voluntary act, although such death was both unexpected and unforeseen, and for that reason accidental, the death was not caused by accidental means, within the meaning of these words as used in the policy of insurance on which the action was brought. This distinction, if conceded to be sound, is not applicable to the instant case. The insured in this ease did not by his own act cause the injury which resulted in his death. He engaged voluntarily in the game of basketball, and while he anticipated collisions during the progress of the game with players on the opposing team, no such injury as that which he suffered by the act of his opponent was probable as the result of the game. This injury was effected by accidental means within the meaning of these words as used in double indemnity clauses in his policies of insurance. The contention of the defendant that there was error in the refusal of the trial court to allow its motion for judgment as of nonsuit cannot be sustained. There was no error in the trial of this action. The judgment is affirmed. No error.