Sawyer v. Life & Casualty Insurance

BRANCH, J. Appellant’s assignments of error as to denial of motions for nonsuit and denial of its request for peremptory instruction challenge the sufficiency of the evidence to go to the jury. Appellant contends that the death of insured resulted directly from insured’s voluntary act and aggressive misconduct and therefore did not come within the policy provision of death resulting from “bodily injury effected solely through violent, external and accidental means.” In the case of Fallins v. Insurance Co., 247 N.C. 72, 100 S.E. 2d 214, the Court, considering an insurance policy which insured deceased against death by external, violent and accidental means, and speaking through Higgins, J., stated: “An injury is 'effected by accidental means’ if in the line of proximate causation the act, event, or condition from the standpoint of the insured person is unintended, unexpected, unusual, or unknown. The unintended acts of the insured are deemed accidental. Injuries caused to the insured by the acts of another person, without the consent of the insured, are held due to accidental means unless the injurious acts are provoked and should [413] have been expected by the insured. (Citing numerous authorities) .” Appellant relies heavily on Scarborough v. Insurance Company, 244 N.C. 502, 94 S.E. 2d 558, and points with particularity to that portion of the opinion which states: “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. “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.” This Court quoted with approval the above language from Scarborough in the recent case of Mills v. Insurance Company, 261 N.C. 546, 135 S.E. 2d 586, and further stated: “. . . This excerpt from the opinion of Hoke, J. (Later C.J.), in Clay is quoted with approval in Scarborough and in Gray: . . in case of death by “external, violent and accidental means,” without more, we hold that the true test of liability in cases of this character is whether the insured, being in the wrong, was the aggressor, under circumstances that would render a homicide likely as a result of his own misconduct.’ ” See also Clay v. Insurance Co., 174 N.C. 642, 94 S.E. 289. It is well established in this jurisdiction that upon motion to nonsuit the plaintiff’s evidence is taken as true and considered in the light most favorable to him, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence, and defendant’s evidence which tends to impeach or contradict plaintiff’s evidence is not considered. Green v. Meredith, 264 N.C. 178, 141 S.E. 2d 287. Applying these recognized rules of law to the instant case, we hold that plaintiff’s evidence is sufficient for the jury to infer that the insured was not the aggressor and in the wrong under such cir [414] cumstances as would render his injury and resulting death tbe natural and probable consequences of his conduct. The trial judge, properly overruled defendant’s motion for judgment as of nonsuit. Nor does the uncontradicted evidence establish facts precluding recovery so as to allow the court to give a peremptory instruction against defendant. Wesley v. Lea, 252 N.C. 540, 114 S.E. 2d 350. No error.