Chesson v. Pilot Life Insurance Company
150 S.E.2d 40
N.C.
1966
Check Treatment
Sharp, J.

The executed contract of a mentally incompetent person is ordinarily voidable and not void. Reynolds v. Earley, 241 N.C. 521, 85 S.E. 2d 904; Walker v. McLaurin, 227 N.C. 53, 40 S.E. 2d 455; Carawan v. Clark, 219 N.C. 214, 13 S.E. 2d 237. If, however, the person has been adjudged incompetent from want of understanding to manage his affairs and the court has appointed a guardian for him, he is conclusively presumed insane insofar as parties and privies to the guardianship proceedings are concerned; as to all others, it is presumptive (but rebuttable) proof of the ward’s incapacity. Medical College v. Maynard, 236 N.C. 506, 73 S.E. 2d 315; Sutton v. Sutton, 222 N.C. 274, 22 S.E. 2d 553. See State v. Duncan, 244 N.C. 374, 93 S.E. 2d 421. Although the insured, Ches-son, had been committed to Dorothea Dix Hospital under the provisions of Article 7, Chapter 122 of the General Statutes, as an alleged mentally disordered person, he had not been judicially declared insane as provided by G.S. 35-2, and no guardian had been appointed for him.

Plaintiff’s evidence tended to show that on May 14, 1964, Ches-son lacked the ability to understand the nature and effect of the act in which he was engaged when he surrendered the insurance policy for the amount of its unearned premiums, $25.40. Defendant offered cogent evidence to the contrary. The jury’s answer to the first issue, however, established that on the day he surrendered the policy, Chesson was not mentally competent. The burden then devolved *103 upon defendant, if it would sustain its insured’s cancellation of the policy, to show that it “(1) was ignorant of the mental incapacity; (2) had no notice thereof such as would put a reasonably prudent person upon inquiry; (3) paid a fair and full consideration; (4) took no unfair advantage of plaintiff; and (5) that the plaintiff has not restored and is not able to restore the consideration or to make adequate compensation therefor.” Carawan v. Clark, supra at 216, 13 S.E. 2d at 238. Accord, Wadford v. Cillette, 193 N.C. 413, 137 S.E. 314. Its failure to establish each of these propositions, in the absence of unusual circumstances, would result in an annulment of the cancellation. Lawson v. Bennett, 240 N.C. 62, 81 S.E. 2d 162; Dougherty v. Byrd, 221 N.C. 17, 18 S.E. 2d 708. Cf. In re Will of Shute, 251 N.C. 697, 111 S.E. 2d 851; In re Will of Kemp, 234 N.C. 495, 67 S.E. 2d 672. The jury’s answers to the second issue showed defendant unable to prove requirements (1), (2), (4), and (5). Obviously, the parties could be restored to their position on May 14, 1964, by plaintiff’s returning to defendant the sum of $413.80. The judgment of the court accomplished this return.

Defendant, treating the complaint as having stated three distinct causes of action, made three separate motions of nonsuit: (1) to the cause of action for rescission of the surrender of the policy; (2) to the cause of action for the face amount of the policy; (3) to the cause of action for double indemnity for accidental death. Plaintiff’s evidence tending to establish insured’s mental incapachy was sufficient to defeat defendant’s motions of nonsuit as to the first two “causes.” Carland v. Allison, 221 N.C. 120, 19 S.E. 2d 245. The judge submitted the issues relating to this aspect of the case to the jury under a charge which was strictly in accord with the law as stated in Carawan v. Clark, supra, and Wadford v. Gillette, supra.

At the conclusion of plaintiff’s evidence, the affidavits of Dorothy M. Chesson and Dr. James T. Wright, made on March 25, 1964, in the proceedings before the Clerk of the Superior Court to have Ches-son recommitted to the State hospital were admitted by the court, over defendant’s objection, for the purpose of corroborating these two witnesses, who had theretofore testified that Chesson lacked mental capacity to know and understand the consequences of his actions. The affidavits were clearly competent for this purpose. Stansbury, N. C. Evidence (2d Ed. 1963) §§ 50, 51. Each of defendant’s assignments of error relating to the first and second issues is found to be without merit.

We come now to the assignment of error based upon defendant’s exception to the refusal of the court to dismiss the cause of action based upon the accident indemnity clause of the policy. In order to recover the double indemnity proceeds of $5,000.00, plaintiff must *104 show that her husband “sustained bodily injuries resulting in death . . . through external, violent, and accidental means” and that his death was “the direct result thereof and independent of all other causes.” If his death resulted wholly or in part from disease or bodily or mental infirmity, or if it did not result from bodily injury sustained through accidental means, she is not entitled to recover. As this Court has pointed out many times “ '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 it is unusual, unforeseen and unexpected. . . . (T)he emphasis is upon the accidental character of the causation —not upon the accidental nature of the ultimate sequence of the chain of causation.” Fletcher v. Trust Co., 220 N.C. 148, 150, 16 S.E. 2d 687, 688. Accord, Gray v. Insurance Co., 254 N.C. 286, 118 S.E. 2d 909; Langley v. Insurance Co., 261 N.C. 459, 135 S.E. 2d 38.

The testimony upon which plaintiff relies to establish death by accidental means is that of Mr. Boger, the eyewitness, who said that as Chesson stood smoking nervously in the corridor, he suddenly threw his arms and hands across his chest and jumped straight backwards, striking his head on the cement floor. The immediate cause of his death was a cerebral hemorrhage.

The theory of plaintiff’s case is that the fall caused the hemorrhage. There is no competent evidence that this is so. Conceding, however, for the purpose of weighing the motion for nonsuit, that the fall caused the hemorrhage rather than the converse, the record is devoid of any evidence that the fall was accidental. Chesson did not trip over an obstacle; he was not startled by an unexpected noise; he was not shoved or pushed. One moment he was standing still; the next, he jumped straight backwards and ended up on the floor. If he jumped backwards voluntarily, the fall was not through accidental means. Langley v. Insurance Co., supra. If he jumped backwards involuntarily as a result of a stroke brought on by hypertension, delirium tremens, or some other disease, mental or physical infirmity, the fall was not the sole cause of his death, and insured’s death is not covered by the policy.

In our opinion, the admitted evidence does not show that Ches-son’s death from a cerebral hemorrhage was caused by accidental means. The reason for his backward jump is left to conjecture. Defendant’s motion to dismiss plaintiff’s cause of action for the accidental indemnity insurance should have been allowed.

The verdict on the third and fourth issues is set aside and the judgment entered is vacated. The cause is remanded to the Superior Court for the entry of judgment that plaintiff recover of the *105 defendant the sum of $4,586.20 with interest ($5,000.00, the face amount of the policy, less $413.80).

Error and remanded.