Kirkley v. Merrimack Mutual Fire Insurance , 232 N.C. 292 ( 1950 )

59 S.E.2d 629 (1950) 232 N.C. 292

KIRKLEY
v.
MERRIMACK MUT. FIRE INS. CO.

No. 524.

Supreme Court of North Carolina.

June 9, 1950.

Jones & Small, Charlotte, for plaintiff.

Smathers & Carpenter, Charlotte, for defendant.

DENNY, Justice.

Does damage to the wooden frame of the plaintiff's station wagon caused by woodboring insects, entering at an unknown time and in an unknown manner and remaining therein for an unknown period, constitute direct and accidental damage or loss, as contemplated under the provisions of the comprehensive loss or damage clause of the automobile insurance policy issued to the plaintiff by the defendant? This question in our opinion must be answered in the negative.

The so-called comprehensive coverage policy is written for the purpose of including all property damages to an automobile resulting from "direct and accidental loss of or damage to such automobile except loss caused by collision * * *." Even so, in our opinion, the loss complained of in this action is not "accidental" within the meaning of the provisions of the policy, although the loss sustained may be traceable to the infestation of the wooden portions of the body of the plaintiff's station wagon by some kind of wood-boring beetle.

The mere fact that an occurence is infrequent or unusual or even unexpected, does not necessarily make it an accident within the meaning of a casualty insurance policy. It is the general rule to construe such policies strictly against the insurer when the provisions therein are ambiguous, but like any other contract the intention of the contracting parties must be gathered from the instrument itself. Crowell v. Maryland Motor Car Ins. Co., 169 N.C. 35, 85 S.E. 37, Ann.Cas.1917D, 50; McCain v. Hartford Live Stock Ins. Co., 190 N.C. 549, 130 S.E. 186; Jolley v. Jefferson Standard Life Ins. Co., 199 N.C. 269, 154 S.E. 400; Woodell v. Aetna Life Ins. Co., 214 N.C. 496, 199 S.E. 719; Stanback v. Winston Mut. Life Ins. Co., 220 N.C. 494, 17 S.E.2d 666; Bailey v. Life Ins. Co. of Virginia, 222 N.C. 716, 24 S.E.2d 614, 166 A.L.R. 826.

"Accidental" means, in common speech, that which is unintended, unexpected, unforeseen and fortuitous, or, to put it another way, an accident in its ordinary sense is an event caused by some casualty, disaster, chance, mishap, misadventure, or hazard. It is defined in Black's Law Dictionary, 3d Ed., p. 23, as "an unforseen event, occurring without the will or design of the person whose mere act caused 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." See also North American Accident Ins. Co. v. Henderson, 180 Miss. 395, 177 So. 528; New York Life Ins. Co. v. Wood, 182 Miss. 233, 190 So. 819; Stuart v. Occidental Life Ins. Co., 156 Ore. 522, 68 P.2d 1037; U. S. Mutual Accident Ass'n v. Barry, 131 U.S. 100, 9 S. Ct. 755, 33 L. Ed. 60; Crutchfield v. Richmond & D. R. R. Co., 76 N.C. 320; Harris v. Jefferson Standard Life Ins. Co., 204 N.C. 385, 168 S.E. 208; Mehaffy v. Provident Life & Accident Ins. Co., 205 N.C. 701, 172 S.E. 331, and Fletcher v. Security Life & Trust Co., 220 N.C. 148, 16 S.E.2d 687.

The damages sustained by the plaintiff may have been unusual and unexpected, but were they the result of "direct and accidental loss", as contemplated in the comprehensive clause of the insurance policy involved? The infestation apparently existed over a period of years. It did not cause an accident directly or otherwise, unless we construe the infestation of the station wagon by wood-boring beetles to be an accident. For ordinarily, the words "accident" and "accidental" refer to the event or occurence which produces the result and not the result. Fletcher v. Trust Co., supra.

Therefore, conceding, but not deciding, that the infestation was an accident and that the loss complained of resulted therefrom, there is no allegation in the plaintiff's complaint to the effect that the entry and damages caused by the woodboring beetle referred to in the complaint, occurred between the effective dates of the policy. In fact there is no allegation as to the identity of the insect or beetle, nor as to the rapidity with which it usually destroys wood of the type and character used in constructing the body of plaintiff's station wagon. It is quite possible, since the nature and type of the wood-boring beetle, causing the damage complained of, is unknown in this section of the country, and the station wagon is a 1946 model, and the method of entry into said station wagon is alleged to be unknown, that the original infestation took place prior to 1 May, 1947.

The case is a novel one, but in our opinion the judgment sustaining the demurrer should be

Affirmed.