Kinney v. Home Security Life Insurance Company

163 S.E.2d 520 (1968)

2 N.C. App. 597

Elizabeth KINNEY v. HOME SECURITY LIFE INSURANCE COMPANY.

No. 6810SC309.

Court of Appeals of North Carolina.

October 16, 1968.

*521 Nassif & Churchill, by Ellis Nassif, Raleigh, for plaintiff appellant.

Hofler, Mount & White, Durham, and Mordecai, Mills & Parker, by John G. Mills, Jr., Raleigh, for defendant appellee.

BROCK, Judge.

Plaintiff's sole assignment of error is the action of the Court below in granting defendant's motion for judgment of nonsuit. The policy here involved provides for an additional benefit in the event of accidental death as follows: "The Company agrees, subject to the terms and conditions of this provision and the policy, to pay an Accidental Death Benefit to the Beneficiary upon receipt at its Home Office of due proof of the accidental death of the Insured which directly shows that (1) Death resulted solely from an accidental bodily injury. * * * The phrase `accidental death' means death resulting directly and solely from a. An accidental injury visible on the surface of the body or disclosed by an autopsy. * * *" (Emphasis added.) The policy contained an exclusion clause in material part as follows: "No benefit will be payable under this provision if the Insured's death results directly or indirectly, or wholly or partially, *522 from. * * * (4) Participation in an assault or a felony."

In order to recover the plaintiff must show coverage within the terms of the policy. And nonsuit would be proper where plaintiff's evidence fails to show coverage, or establishes a defense under an exclusion clause. Under the decisions of our Supreme Court the prevailing rule, as stated by Justice Higgins in Slaughter v. State Capital Life Insurance Co., 250 N.C. 265, 108 S.E.2d 438, is: "When the plaintiff fails to show coverage under the insuring clause of a policy, nonsuit is proper. If the plaintiff's evidence makes out a case of coverage and at the same time establishes the defense that the particular injury is excluded from coverage, nonsuit is likewise proper. * * * However, when the defendant's evidence, not in conflict with the plaintiff's, shows the plaintiff does not have a case, or that the defendant does have a complete defense, the defendant's remedy is by motion for a peremptory instruction to the jury * * * rather than by motion for nonsuit."

Plaintiff, in our view, has met her responsibility by sufficiently showing the insured's accidental death came within the terms of the policy to require submission of the case to the jury. The defendant argues that opinion evidence by the patrolman and the undertaker to the effect that insured's death resulted from the automobile accident was incompetent and should not have been admitted over defendant's objection. Such argument is unavailing here since on appeal from a judgment of nonsuit all evidence favorable to the plaintiff, whether competent or incompetent, must be considered. Langley v. Durham Life Insurance Co., 261 N.C. 459, 135 S.E.2d 38.

The defendant cites a number of cases for the proposition that, where an accident insurance policy provides coverage for injuries sustained by external, violent and accidental means, the burden is on the plaintiff to show, not only that the means were external and violent, but also that they were accidental. It contends that nonsuit was proper in this case because plaintiff's evidence fails to show that insured came to his death by "accidental means." However, defendant has failed to recognize that for purposes of coverage under an accident policy a distinction exists between the terms "accidental death" and "death by accidental means." Mills v. State Life & Health Insurance Co., 261 N.C. 546, 135 S.E.2d 586. The phrase "accidental means" as distinguished from "accidental death" refers to the occurrence or happening which produces the result rather than the result itself. They are not synonymous and coverage of the policy is materially affected by the use of the one or the other. Scarborough v. World Insurance Co., 244 N.C. 502, 94 S.E.2d 558; Fletcher v. Security Life & Trust Co., 220 N.C. 148, 16 S.E.2d 687. The phrase "accidental death," as defined in the policy under consideration, and as distinguished from the phrase "death by accidental means," refers to the result itself rather than the occurrence or happening which produces the result.

It is obvious that a "crushed skull" sustained in an automobile accident is "an accidental injury visible on the surface of the body," and where death results from such an injury, that this is an "accidental death" within the terms of the policy.

The defendant also contends that nonsuit was proper because the accidental death benefit is excluded by the policy where the insured's death results "directly or indirectly, or wholly or partially, from participation in a felony." This contention is entirely without merit. The only evidence which tends to show that the wrecked automobile was one which had been stolen was evidence offered by the defendant.

In this case the plaintiff's evidence makes a prima facie showing of coverage under the "accidental death" provision of the policy. *523 It does not establish a bar under the exclusion clause. On this Record plaintiff is entitled to have her case determined by the jury.

The judgment of nonsuit appealed from is

Reversed.

BRITT and PARKER, JJ., concur.