Higgins v. Life & Casualty Insurance, 220 N.C. 243 (1941)

Oct. 29, 1941 · Supreme Court of North Carolina

220 N.C. 243

MRS. ELSIE HIGGINS v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE.

(Filed 29 October, 1941.)

1. Insurance § 38—

Evidence that the car in which insured was riding was forced off the highway by another car passing it on a curve, that after being forced off the highway it skidded on the shoulder of the road, struck a ditch and skidded on, against, over, and across a driveway bridge, that when it struck the ditch insured was thrown against the door which flew open, and that he fell out and was caught under the car and dragged 100 to 130 feet causing fatal injury, is held sufficient to show an accident to the automobile and that insured fell from the automobile as a proximate result thereof.

2. Insurance § 39—

Evidence that prior to the accident the automobile was in good condition and that immediately after the accident a door was warped so that it would not shut easily, the door stop broken, the glass of the door cracked, and a fender dented and one of the running boards damaged is held competent upon the issue of whether the accident caused visible injury to the vehicle as required for recovery in the policy of accident insurance in suit, and was sufficient to be submitted to the jury upon that issue. Sanderlin v. Ins. Co., 214 N. C., 362, cited and distinguished.

Appeal by defendant from Sink, J., at Eebruary-Marcb Term, 1941, of Caldwell.

No error.

Civil action to recover tbe death benefit under a limited accident policy.

Tbe defendant issued and delivered to Fonies C. Higgins its limit Industrial Travel and Pedestrian policy in wbicb plaintiff was named beneficiary. Under tbe terms of tbe policy defendant agreed to pay plaintiff, beneficiary named in tbe policy, tbe sum of $1,000.00 for tbe loss of tbe life of tbe insured, if sucb loss of life should be caused “by collision of or by any accident to any . . . private motor-driven automobile . . . inside of wbicb tbe insured is riding or driving . . . provided that . . . there shall be some external or visible injury to and on tbe said vehicle of tbe collision or accident . . . and provided that tbe collision or accident must occur on a public highway.”

On 17 September, 1939, tbe insured, while a passenger on an automobile, fell out of tbe car, receiving injuries from wbicb be died tbe next day. Whereupon this action was instituted.

Tbe jury answered tbe issues submitted in favor of tbe plaintiff. From judgment thereon defendant appealed.

Townsend & Townsend for plaintiff, appellee.

Pritchett & Strickland for defendant, appellant.

BaeNHill, J.

It is admitted in tbe answer that tbe insured was, on tbe day be received fatal injuries, a passenger on an automobile being driven on a highway near "Wilkesboro; that be fell out of tbe automobile and tbe vehicle ran over him and dragged him some distance; that tbe insured died tbe next day; and that tbe policy at tbe time was in full force and effect.

Hence, to recover on tbe policy plaintiff must show that tbe insured fell from tbe automobile as a proximate result of a collision of or an accident to tbe vehicle on wbicb be was a passenger and that sucb collision or accident caused some external or visible injury to tbe vehicle other than to tbe tires thereof.

As tbe driver of tbe automobile was proceeding around an “S” curve, another car, going at a high rate of speed and approaching from tbe rear, attempted to pass. In so doing it crowded or forced tbe vehicle on wbicb tbe insured was riding oil the main portion of the highway. It skidded sidewise on the shoulder of the road, struck a ditch or gully and skidded on, against, over, and across a driveway bridge. When the car struck the ditch the insured was thrown against the door, which flew open, and he fell out and was caught under the ear and dragged 100 to 130 feet before the automobile finally came to rest. That this constitutes an accident to the automobile is not seriously controverted.

Did the accident produce or cause any external visible injury to the vehicle ? This the defendant denies and upon the issue thus raised it bases its primary defense.

The answer must he in the affirmative. The evidence, when viewed in the light most favorable to the plaintiff, tends to show that prior to the accident the automobile was in good condition. There were no dents or marks on it. The glass was not broken and the doors were in proper condition. Immediately after the accident it was discovered that the door was warped or bent to such an extent that it would not shut easily. The door stop or check was broken. The glass in the door was cracked all the way down. About 3 inches of the circle part of the fender had been bent back. There were dents in the right fender, the right rear rim was dented in several places, and the running board was damaged.

No one actually saw the fenders dented or the glass broken or the other damage done to the car. However, that such external visible injuries were not in existence just prior to the accident and were discovered shortly thereafter permits and perhaps commands the inference that they resulted from the accident. Certainly the evidence was such as to require its submission to the jury and it is sufficient to sustain the verdict. Sanderlin v. Ins. Co., 214 N. C., 362, 199 S. E., 275, upon which defendant relies, is factually distinguishable.

The exceptions to the rulings of the court upon the admissibility of the testimony offered cannot be sustained. Evidence tending to show that the automobile had no visible sign of injury prior to the accident, together with evidence of such signs shortly thereafter, was competent on one of the issuable facts involved. And, incidentally, one of the witnesses for defendant testified in respect thereto.

We have examined the other exceptive assignments of error and find in them no sufficient cause for disturbing the verdict.

No error.