Clay v. State Insurance Co.
94 S.E. 289
N.C.
1917
Check Treatment
Hoke, J.,

after stating the case: We regard it as established by the numerous decisions on the subject that in case of accident insurance, as expressed in the general terms of this policy, the word “accident” should receive its ordinary and popular definition as an unusual and unexpected occurrence — one that takes place without the foresight or expectation of the person affected — and that in a given case the question is to be determined by reference to the facts as they may affect the holder of the policy, or rather the person insured. “An event which, under the circumstances, is unusual and unexpected by the person to whom it happens.” Bomvier, 1883, as cited in Lovelace v. Travelers’ Protective Association, 126 Mo., 104, and the cases, hold further that the intentional killing of the insured by a third person does not of itself, and without more, withdraw the claim from the protection of the policy. Lovelace v. Travelers’ Association, supra; Richards v. Travelers’ Ins., 89 Cal., 170; Warner v. Mutual Accident Ins. Co., 8 Utah, 431; Supreme Council v. Garrigus, 104 Ind., 133; Ins. Co. v. Barrett, 90 Tenn., 256; Gresham v. Equitable Acc. Ins. Co., 87 Ga., 497; Travelers’ Ins. Co. v. McConkey, 127 U. S., 661; Kerr on Ins., 381; Vance on Ins., 566.

When the death has occurred as the result of an affray or other breach of the peace, several of the decisions contain expressions to the effect that the right to recover depends on whether the insured was the aggressor or in the wrong, but, so far as examined, a careful perusal of these cases will disclose that this of itself is not the ultimate test of liability.In some of them, as in Supreme Council v. Garrigus, supra, recovery was allowed, the intimations suggested are in the nature of obiter dicta. In others, where recovery was denied, it was by reason of exceptions of more inclusive meaning than any which appear in this policy. Thus, in Gresham v. Equitable, supra, the insured having been killed in an affray, the policy exempted the company from liability for death or injury caused by fighting. In Travelers’ Insurance Co. v. McConkey, 127 U. S., 661, the company was exempt if the death of the insured was caused by intentional injuries inflicted by the insured or any other person. But in policies without these or like specific and definite exceptions, and on facts calling for construction of insurance in case of death by “external, violent, and accidental means,” without more, we hold that the true test *646 of liability in cases of tbis character is whether the insured, being in the wrong, was the aggressor, under circumstances that would render a homicide likely as the result of his own misconduct.

The position finds full and direct support in Talifeiro v. Travelers’ Protective Association, 80 Fed., 368, where it was held “That a benefit certificate insured against death by accident does not cover a case where the assured was shot in a quarrel in which he was the aggressor and violently attacked his adversary with a pistol, accompanying the act with the exclamation that he must have revenge, and warning his adversary to put himself in shape.” . On such facts, Thayer, J., delivering the opinion, said: “This can be regarded as in no other than an invitation to a deadly encounter, in which the deceased voluntarily put his life at stake and deliberately took the chances of getting killed. Where a person thus invites another to a deadly encounter, and does so voluntarily, his death, if he sustains a mortal wound, cannot be regarded as accidental by any definition of that term which has been heretofore adopted. It might as well be claimed that death is accidental when a man intentionally throws himself across a railroad track, or leaps from a high precipice, or swallows a deadly poison. It is possible that death may not follow from either of these acts, but death is the result that would naturally be expected, and if such is the result it is not accidental.”

•The facts being essentially similar, we regard this well-reasoned case as decisive of the present appeal, it appearing here that the insured announcing that he would kill his adversary, first wrongfully assaulted him with a pea pole 3 or 4 feet long, a deadly weapon, and pursued the fight with a pistol, which he first fired, and was then himself shot and killed. Such a homicide could in no sense be called accidental, but on the facts as they are now presented the death of one or both of the parties was not unlikely, and that of the insured was fully justified under the law.

On the argument plaintiff cited and very much relied on the cáse of Lovelace v. Travelers’ Protective Association, 126 Mo., 104, supra. In that case the insured, entering a hotel about 11 o’clock at night with a view of becoming a guest, found a disorderly person in the office. He was a friend of the landlord, who was sick at the time, and he undertook to put the offender out of the office, and was shot and killed as a result. There had been no threat or display of deadly weapons, and there was nothing in the facts or attendant circumstances to indicate that a homicide would likely follow, and on such facts recovery was allowed.

The case, to our minds, is not inconsistent with our present decision, and the two seem very well to define and illustrate the dividing line by which the question of liability may be properly determined.. In the Missouri case, though the deceased may have been the aggressor, the *647 attendant circumstances, as stated, did not show tbat a homicide was to be naturally expected, and permitting tbe inference tbat tbe same was accidental, a recovery was sustained. In our case tbe affray from tbe beginning took on tbe aspect of a deadly encounter, and, tbe deceased being tbe aggressor and in tbe wrong, tbe homicide could not be considered an accident.

For tbe error indicated, there will be a new trial of the issue, and if tbe facts in evidence are as'now presented, tbe defendant-is entitled to tbe instruction tbat if these facts are accepted by tbe jury, their verdict should be for defendant.

New trial.