Flintall v. Charlotte Liberty Mutual Insurance Co.

131 S.E.2d 312 (1963) 259 N.C. 666

Cora FLINTALL
v.
CHARLOTTE LIBERTY MUTUAL INSURANCE COMPANY.

No. 744.

Supreme Court of North Carolina.

June 14, 1963.

J. J. Shields, Greensboro, for defendant appellant.

Dalton & Long, Burlington, for plaintiff appellee.

DENNY, Chief Justice.

The appellant assigns as error several excerpts from the charge of the court below applicable to the first and second issues. We have carefully considered these assignments of error and in our opinion when the charge is considered contextually with respect to these issues, the jury could not have been misled to the prejudice of the defendant. Kennedy v. James, 252 N.C. 434, 113 S.E.2d 889; Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19; Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356; Wyatt v. Queen City Coach Co., 229 N.C. 340, 49 S.E.2d 650.

In 45 C.J.S. Insurance § 601, page 417, it is said: "Whether statements as to temperate habits or denials of excessive use of stimulants or narcotics are regarded as warranties or as material representations, they are to be construed as referring to continuous or periodical excessive indulgence which has become habitual, and not to occasional use or even an exceptional case of excess. So it has been held that a statement that insured does not drink or does not use malt or spirituous liquors or beverages, or does not use narcotics, should receive a reasonable construction, and refers not to a single incidental use but to a customary or habitual use."

Likewise, in 29 Am.Jur., Insurance, section 774, page 1030, we find the following statement: "It is generally held that questions whether an applicant for insurance has used or uses intoxicating liquor, and if so, the extent and average quantity, do not refer to an occasional or exceptional use of such drinks, but to the habitual or customary use. For instance, in an application for life insurance, a negative answer to the question, ``Do you use spirituous, malt, or vinous liquors?' is not false when the answerer partakes of intoxicating liquors only occasionally and temperately. It is likewise generally held that a warranty or representation that the insured is sober and temperate does not mean that he is a total abstainer from the use of intoxicants, but implies that his use is a moderate and not an excessive one. An occasional use of intoxicating liquors does not render the insured a man of intemperate habits, and an occasional case of excess will not justify the application of this character to him."

Furthermore, we think the evidence supports the conclusion that the insured procured the policy of insurance in question on his life. If so, he had the right to designate any person he might choose as beneficiary. Hardy v. Aetna Life Insurance Co., 152 N.C. 286, 67 S.E. 767; Hardy v. Aetna Life Insurance Co., 154 N.C. 430, 70 S.E. 828.

It appears the insured had previously taken out a policy on his life with the defendant but had let it lapse due to his unemployment. When he procured a new job in July 1960 he requested the defendant to reinstate his old policy, but at the suggestion of the defendant's agent he took out a new policy instead.

These assignments of error are overruled.

The defendant contends that its liability, if any, upon the policy of insurance involved herein, is limited by the provisions of the policy to $500.00, and assigns as error the following instruction to the jury: "Upon this third issue, members of the jury, I instruct you that if you are satisfied from the evidence and by its greater weight, the burden being upon the defendant to so satisfy you that Wade Hinton did die from some undetermined cause it being admitted that he died within twelve months of the date of the policy, that is you find he died from cause not decided upon after a reasonable investigation as to what the cause was, it would be your duty to answer the issue ``Yes.' If you fail to so find, it would be your duty to answer ``No.'"

In 29A Am.Jur., Insurance, section 1854, page 918, it is said: "If a risk is excepted by the terms of a policy which insures against other perils or hazards, loss from such a risk constitutes a defense which the insurer may urge, since it has not assumed that risk, and from this it follows, at least as a general rule, that an insurer seeking to defeat a claim because of an exception or limitation in the policy has the burden of proving that the loss, or a part thereof, comes within the purview of the exception or limitation set up. In other words, the principle generally applied by the courts is that if proof is made of a loss apparently within a contract of insurance, the burden is upon the insurer to prove that the loss arose from a cause of loss which is excepted or for which it is not liable, or from a cause which limits its liability."

This assignment of error seems to present a question not heretofore considered by this Court. Moreover, the briefs contain no citation of authority bearing on the interpretation to be given the words "undetermined causes." Neither have we found any. Even so, we see no reason why the word "undetermined" should not be given its ordinary meaning. Webster's New International Dictionary, Third Edition, defines "undetermined" as: "Not yet definitely or authoritatively decided, settled, or fixed; not yet positively identified or ascertained."

The insured died under unusual or mysterious circumstances. The evidence discloses no illness immediately prior to his death except in the proof of death, defendant's Exhibit 1, in answer to question No. 5, which reads as follows: "When did deceased first complain of, or give other indications of his last illness?" this question was answered by the plaintiff, viz: "November 3, 1960, sore throat." This was on Thursday before the insured was found dead on Sunday, 6 November 1960. The proof of death also reveals that the deceased last attended to his usual work on 4 November 1960

In view of the facts and circumstances disclosed on this record, we have come to the conclusion that the statement in the certificate of death, that the immediate cause of death was "unknown," and giving the antecedent causes as "natural causes," that the antecedent causes should not be interpreted to mean anything more than that the coroner found no evidence of foul play. Moreover, if the cause of death is unknown, it necessarily follows that the cause of death is undetermined. Therefore, when the defendant introduced in evidence the proof of death filed by the plaintiff, and the coroner's certificate of death, they were sufficient to show that the cause of death was undetermined. Consequently, we think the defendant was entitled to an instruction that, if the jury answered the first and second issues "No," and found from the evidence and by its greater weight that the insured died from "undetermined causes," the jury would answer the third issue "Yes." We do not think the burden was on the defendant to establish by the greater weight of the evidence that the defendant died from "cause not decided upon after a reasonable investigation as to what the cause was * *."

"While ordinarily a verdict may not be directed in favor of the party having the burden of proof, when only one inference can be drawn from the facts admitted, the court may draw the inference and peremptorily instruct the jury." Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165; Lumbee River Conference of Holiness Methodist Church v. Locklear, 246 N.C. 349, 98 S.E.2d 453; Home Finance Co. of Georgetown v. O'Daniel, 237 N.C. 286, 74 S.E.2d 717; Morris v. Tate, 230 N.C. 29, 51 S.E.2d 892; La-Vecchia v. North Carolina Joint Stock Land Bank, 218 N.C. 35, 9 S.E.2d 489; McIntosh, North Carolina Practice and Procedure, Second Edition, Section 1516.

Therefore, since the burden of proof was on the defendant to establish an affirmative answer to the third issue, thereby reducing the amount that plaintiff was entitled to recover under the provisions of the policy from $1,000.00 to $500.00, the defendant, in light of all the evidence adduced in the trial below, was entitled to a peremptory instruction on the third issue.

The defendant is entitled to a new trial and it is so ordered.

New trial.