Tayloe v. Hartford Accident & Indemnity Company , 257 N.C. 626 ( 1962 )

127 S.E.2d 238 (1962) 257 N.C. 626

Dr. John C. TAYLOE, Dr. A. R. Peters, Jr., Joseph P. Tunstall, Dr. Sam. H. Williams, Jr., Dr. W. C. Piver, Jr., Dr. Clark Rodman, Dr. David T. Tayloe, Dr. R. G. Silverthorne, and Dr. C. T. Partrick, Partners, Trading and Doing Business as Tayloe Drug Company
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY.

No. 21.

Supreme Court of North Carolina.

September 19, 1962.

Carter & Ross, Washington, for appellees.

James & Speight, William C. Brewer, Jr., Greenville, for appellant.

DENNY, Chief Justice.

This appeal turns on whether or not the damage to the premises involved in this action resulted from an unavoidable accident within the terms of the plaintiff partnership's lease.

"Accident" is defined as "an unforeseen event, occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; the effect of an unknown cause, or, the cause being known, an unprecedented consequence of it; a casualty." Black's Law Dictionary, Third Edition. This definition of an accident was cited with approval in Thomas v. Lawrence, 189 N.C. 521, 127 S.E. 585 and Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726.

In 1 C.J.S. Accident, page 443, an "unavoidable accident" is defined "as meaning an accident which cannot be avoided by that degree of prudence, foresight, care, and caution which the law requires of every one under the circumstances of the particular case, which is not occasioned in any degree, either remotely or directly, by the want of such care and skill as the law holds every man bound to exercise, or which occurs without fault attributable to any one; * * *."

Webster's Third New International Dictionary (Unabridged) defines "unavoidable casualty or unavoidable accident" as "an unintentional occurrence that cannot be avoided by the degree of care required of a person under all the circumstances. A casualty or accident happening without fault of any person involved."

In the case of Baxley v. Cavenaugh, 243 N.C. 677, 92 S.E.2d 68, Bobbitt, J., speaking for the Court, said: "An unavoidable accident, as understood in the law of torts, can occur only in the absence of causal negligence."

There is a divergence of opinion among the authorities as to whether or not an intentional act of a third party or parties constitutes an "unavoidable accident." Some hold, however, that damage to leased premises by the act of a stranger is included in the term "unavoidable casualties." Kirby v. Davis, 210 Ala. 192, 97 So. 655.

In the case of Leominster Fuel Co. v. Scanlon, 243 Mass. 126, 137 N.E. 271, 24 A.L.R. 1459, the plaintiff had leased the premises from the defendant for a period of years. There was a plate-glass window in the leased premises next to the sidewalk, the window formed a part of the wall of plaintiff's office. The window was broken by a third person who ran into it from the street. The plaintiff brought an action against the lessor to recover for the expense of replacing the plate-glass window.

In the lease the lessee had covenanted, "To keep the premises in tenantable repair, damage by fire, unavoidable casualty, and unusual wear and tear alone excepted."

The Supreme Court of Massachusetts held: "The breaking of the window through accident or negligence by an outsider, for whose conduct neither the landlord nor the tenant were responsible, was not an ``unavoidable casualty' within the meaning of those words in the lease exonerating the tenant from keeping the premises in tenantable repair. Welles v. Castles, 3 Gray, 323; French v. Pirnie, 240 Mass. 489, 134 N.E. 353, 20 A.L.R. 1098.

"It follows that the defendant is under no liability to the plaintiff for replacing the window. * * *" See Anno—Lease—Unavoidable Casualty, 20 A.L.R. 1101, et seq.

It appears from the evidence on this record that the plaintiff partnership remodeled the leased premises at a cost of approximately $16,000; building a completely new front, installing new doors and new windows. The glass double doors were of the double-action type with metal frames. The insurance policy involved contains this provision with respect to the property interest covered: "Ownership of Property; Interests Covered. The insured property may be owned by the insured, or held by the insured in any capacity whether or not the insured is liable for the loss thereof, or may be property as respects which the insured is legally liable; provided, the insurance applies only to the interest of the insured in such property, including the insured's liability to others, and does not apply to the interest of any other person or organization in any of said property unless included in the insured's proof of loss."

There is no controversy about the proof of loss. Proof of loss was waived by stipulation of counsel.

There is no contention that the lessors have any liability for repairs to the premises involved during the leased period. According to the evidence, all the property damage inflicted by the burglar or burglars was to property bought and installed by the partnership lessee and repaired or replaced by it after the robbery.

This Court has been inclined to the view that where injury or death has resulted from the intentional or wrongful conduct of a third party, the death or injury was not the result of accidental means. Slaughter v. State Capital Life Insurance Co., 250 N.C. 265, 108 S.E.2d 438; Goldberg v. United Life & Acc. Insurance Co., 248 N.C. 86, 102 S.E.2d 521.

In the case of Slaughter v. State Capital Life Insurance Co., supra, the action was brought by the plaintiff, beneficiary, to recover on an accident policy issued by the defendant in which it contracted to pay $2,500 for the loss of life by the insured, William B. Slaughter, "resulting directly and independently of all other causes from bodily injury sustained by the insured solely through external, violent, and accidental means." The policy contained an exclusion clause, in material part as follows: "The insurance under this policy shall not cover death * * * caused directly or indirectly, wholly or partly, (1) by the intentional act of the Insured or any other person, whether sane or insane * * *." The insured operated a taxicab in Selma. An unidentified man requested Slaughter to take him to Smithfield. Later, Slaughter's body was found near the City dump about three miles from Smithfield. His money, his pistol, and the taxicab were gone. This Court said: "All the evidence points to an intentional killing with robbery as the motive. This evidence, viewed in the light of reason and common sense, leaves no basis for a finding of death as the result of accident as the term ``accident' is generally understood. The evidence, circumstantial, of course, offered nothing which even remotely tended to suggest, much less to support a finding, that death resulted through accidental means."

The appellant concedes that the burglar or burglars intended to smash the doors of the drug store owned by the plaintiff partnership in order to gain entrance thereto so they might take and carry away cash and merchandise stored therein.

In our opinion, the damage to the premises was not the result of an unavoidable accident within the meaning of the terms of the lease. Consequently, plaintiff partnership was required to make the necessary repairs to the premises if it desired to continue its business. We hold, therefore, that under the terms of the lease and the policy of insurance issued by the defendant to plaintiff partnership, the judgment of the court below should be sustained.

The judgment entered below is

Affirmed.