Allred v. Prudential Insurance Company of America , 247 N.C. 105 ( 1957 )

100 S.E.2d 226 (1957) 247 N.C. 105

Earl ALLRED
v.
The PRUDENTIAL INSURANCE COMPANY OF AMERICA.

No. 387.

Supreme Court of North Carolina.

November 6, 1957.

Buford T. Henderson, Winston-Salem, for plaintiff appellant.

Wharton & Wharton, Greensboro, for defendant appellee.

WINBORNE, Chief Justice.

In the light of the evidence offered upon trial in Superior Court, taken most favorably to plaintiff, and giving to him the benefit of every reasonable inference, did the death of the insured result, directly and independently of all other causes, of bodily injuries effected through external, violent and accidental means, within the meaning of the accidental means death benefit provision contained in the policy of insurance in suit? Principles applied in decisions of this Court dictate a negative answer. See Clay v. State Ins. Co., 174 N.C. 642, 94 S. E. 289, L.R.A.1918B, 508; Mehaffey v. Provident Life & Accident Ins. Co., 205 N.C. 701, 172 S.E. 331; Fletcher v. Security Life Trust Co., 220 N.C. 148, 16 S.E.2d 687; Scarborough v. World Ins. Co., 244 N.C. 502, 94 S.E.2d 558, and cases cited.

In the Mehaffey case, supra, opinion by Brogden, J., the Court, in treating of liability clause of a policy of insurance resting upon death or injury [205 N.C. 701, 172 S.E. 333], "solely through external, violent and accidental means," declared that "in order to warrant recovery for death in such event, such death must not only be accidental but must be produced by ``accidental means.'" Then after citing and referring to cited cases, the Court concluded that "upon consideration of these authorities and others of like import, it seems that ``accidental means' implies ``means' producing a result which is not the natural and probable consequence of such means. If the result, although unexpected, flows directly from an ordinary act in which the insured voluntarily engages, then such is not deemed to have been produced by accidental means."

In the Fletcher case, supra, Barnhill, J., later C. J., drew distinction between "accidental" and "accidental means" as these terms are used in accident insurance policies, and pointed out that the term "accidental means" refers to the occurrence or happening which produced the result, rather than the result.

And in the Scarborough case, supra, after referring to the Fletcher case, it is said "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." [244 N.C. 502. 94 S.E.2d 561.]

The principle is approved and applied in Thompson v. Prudential Ins. Co. of America, 84 Ga.App. 214, 66 S.E.2d 119, and in Baker v. National Life & Accident Ins. Co., Tenn., 298 S.W.2d 715, where factual situations are comparable to that in case in hand.

In the Thompson case the insured was killed while engaged in game of Russian Roulette. And the opinion of the Court is epitomized in these headnotes:

"1. Under life policies containing provisions for double indemnity for death caused by accidental means, death which is the natural and probable consequence of an act or course of action is not an accident nor is it produced by accidental means, and, if not the result of actual design, insured must be held to have intended the result.

"2. Where insured engaged in game of ``Russian Roulette' and removed all but one cartridge from revolver cylinder, spun cylinder, and without ascertaining position of cartridge, placed revolver to head, pulled trigger and was killed, death was not caused by ``accidental means', within double indemnity provisions of life policies.

"3. In action by beneficiary for double indemnity under life policies providing for such payment for death caused by accidental means, evidence on issue of whether insured, who had killed himself while playing ``Russian Roulette' with loaded revolver, was killed by accidental means was insufficient to take case to jury."

And in the Baker case, supra (of "William Tell" import), these headnotes portray opinion of Supreme Court of Tennessee:

"1. Where insured placed pepper can on his head and invited friend to fire at the can with a revolver and insured moved his head just as revolver was fired with bullet entering insured's head causing his death, insured should have reasonably foreseen that death or injury might result and his death was not through ``accidental means' within double indemnity provision of life policy.

"2. Death is not caused by accidental means if it is the natural and foreseeable result of a voluntary, though unusual and unnecessary act or course of conduct of the insured."

Applying these principles to case in hand, this Court is constrained to hold that the facts and circumstances shown by the undisputed evidence disclose that the death of the insured was "the natural and probable consequence of an ordinary act in which he voluntarily engaged." Mehaffey v. Provident Life & Accident Ins. Co., supra.

Cases relied upon by appellant are distinguishable.

Hence no recovery can be sustained, and the judgment as of nonsuit must be

Affirmed.

JOHNSON and BOBBITT, JJ., dissent.