Henderson v. Hartford Accident & Indemnity Co. , 268 N.C. 129 ( 1966 )

150 S.E.2d 17 (1966) 268 N.C. 129

Mrs. Lillian D. HENDERSON
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY.

No. 119.

Supreme Court of North Carolina.

September 21, 1966.

Don V. Young, Asheville, for plaintiff H. Phillips, Asheville, for defendant appellee.

Williams, Williams & Morris and Ann H. Phillips, Asheville, for defendant appellee.

BRANCH, Justice.

Plaintiff assigns as error the granting of judgment of nonsuit. The policy here involved provides coverage "against loss resulting directly and independently of all other causes from bodily injuries sustained during the term of this policy, and effected solely through accidental means." (Emphasis ours).

We are cognizant of the well-settled law in this state that "since insurance policies are prepared by the insurer, they must be construed liberally in favor of insured and strictly against insurer," Barker v. Iowa Mutual Insurance Co., 241 N.C. 397, 85 S.E.2d 305, but that the rule of liberal construction does not justify the courts in enlarging the terms of the policy beyond the meaning of the language of the policy. Weiss v. Pacific Mut. Life Insurance Co., 215 N.C. 230, 1 S.E.2d 560.

The contract must be construed as the parties have made it. Scarboro v. Pilot Life Insurance Co., 242 N.C. 444, 88 S.E.2d 133, 54 A.L.R. 2d 407.

In order to repel the defendant's motion for nonsuit the plaintiff must bring the insured's death within the coverage provision above quoted.

It now seems to be well-settled law in this state that our courts have drawn a distinction between "accident" and "accidental means," on the theory that although the results of an intentional act may be an accident, the act itself, that is, the cause, where intended, is not an "accidental means," that where an unusual or unexpected result occurs by reason of the doing by the insured of an intentional act, with no mischance, slip or mishap occurring in doing the act itself, the ensuing death or injury is not caused by "accidental means."

In the case of Skillman v. Acacia Mutual Life Insurance Co., 258 N.C. 1, 127 S.E.2d 789, the evidence tended to show that insured was suffering from hypertension, and while driving his car along a straight highway he ran off the highway and into a river. The policy sued on provided for payment of loss "upon receipt by the Company of due proof that the death of insured resulted, directly and independently of all other causes, from bodily injury sustained solely through external, violent and accidental means." (Emphasis ours). Denny, C. J., speaking for the Court in this case, said:

"This Court has consistently held that there is a distinct difference in the meaning of the terms ``accidental death' and ``death by external accidental means.' In Fletcher v. Trust Co., 220 N.C. 148, 16 S.E.2d 687, Barnhill, J., later C. J., said: ``"Accidental" means that which happens by chance or fortuitously without intent or design and which is unexpected, unusual and unforeseen. 29 Am.Jur., 706-707, sec. 931. "Accidental means" refers to the occurrence or happening which produces the result and not to the result. That is, "accidental" is descriptive of the term "means". The motivating, operative and causal factor must be accidental in the sense that is unusual, unforeseen and unexpected. Under the majority view the emphasis is upon the accidental character of the causation—not upon the accidental nature of the ultimate sequence of the chain of causation.' See also Slaughter v. State Capital Life Ins. Co., 250 N.C. 265, 108 S.E.2d 438, and cf. Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173."

The case of Langley v. Durham Life Ins. Co., 261 N.C. 459, 135 S.E.2d 38, was a case in which the evidence tended to show that the insured was found lying face down on his bed some six to ten hours after death, his face buried but not entangled in the bed covers, and his nose, lips and entire face flat. In this case the Court again recognized the difference between accident and accidental means, and Bobbitt, J., speaking for the Court, said:

"While there is a division of authority elsewhere (see 29A Am.Jur., Insurance § 1166 and Comment Note, 166 A.L.R. 469), this Court has consistently drawn a distinction between the terms ``accidental death' and ``death by external accidental means.'"

The Court has made the same distinction between accidental means and accident in the cases of Fletcher v. Security Life & Trust Co., 220 N.C. 148, 16 S.E.2d 687; Scott v. Aetna Life Insurance Co., 208 N.C. 160, 179 S.E. 434; Mehaffey v. Provident Life & Accident Insurance Co., 205 N.C. 701, 705, 172 S.E. 331.

There are very strong equities for the plaintiff in this case, in that this was a policy of insurance issued under a group or blanket policy to furnish coverage to a fireman when in the exercise of his duties, and if there were such ambiguities as to allow a construction of the policy, we would tend to grant relief to the plaintiff; however, in order for the plaintiff to establish coverage she must show that insured's death was caused by "accidental means." In the instant case the insured was voluntarily performing an intentional act and there is no evidence of any unusual mishap, slip or mischance occurring in the doing of the act. To the contrary, it appeared that the result was unusual and unexpected and unforeseen.

An ambiguity in a life policy is to be construed most favorably to the insured. The Courts cannot make a contract for the parties and can only enforce the contract which the parties have made. Davis v. Fidelity Mutual Life Insurance Co., 4 Cir., 107 F.2d 150.

Unless the plaintiff's evidence in this case permits the legitimate inference that the insured's death resulted directly and independently of all other causes from bodily injuries sustained during the term of this policy and effected solely through accidental means, nonsuit is proper. Slaughter v. State Capital Life Insurance Co., 250 N.C. 265, 108 S.E.2d 438.

It is unnecessary for the Court to consider the plaintiff's second exception in view of the result herein reached.

Affirmed.