Goldberg v. UNITED LIFE & ACC. INS. CO., CONCORD, NH

Supreme Court of North Carolina

Goldberg v. UNITED LIFE & ACC. INS. CO., CONCORD, NH

102 S.E.2d 521, 248 N.C. 86, 1958 N.C. LEXIS 346

CourtSupreme Court of North Carolina

DecidedMarch 26, 1958

Docket239

StatusPublished

Cited by10 cases

This text of 102 S.E.2d 521 (Goldberg v. UNITED LIFE & ACC. INS. CO., CONCORD, NH) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Goldberg v. UNITED LIFE & ACC. INS. CO., CONCORD, NH, 102 S.E.2d 521, 248 N.C. 86, 1958 N.C. LEXIS 346 (N.C. 1958).

Pincite

Opinion

JohnsoN, J.

Conceding, without deciding, that the plaintiff’s evidence in some aspects is sufficient to show prima facie that the insured met his death through accidental means within the insuring provisions of the policies, even so, the evidence discloses conclusively that the insured met his death by homicide as the result of being struck by Dr. Black. True, it may be inferred that Dr. Black was incited to action by the insulting language of the insured and that in striking the blow he had no intent to kill. Nevertheless, the rule is that no words, however violent or insulting, justify a blow. Lewis v. Fountain, 168 N.C. 277, 84 S.E. 278; Palmer v. R.R. 131 N.C. 250, 42 S.E. 604; 6 C. J. S., Assault and Battery, Sec. 91, p. 943. And death having resulted from the voluntary, unlawful act of Dr. Black, i.e.; an assault and battery, it was death by “homicide” within the meaning of the exception clauses of the policies. 40 C. J. S., Homicide, Sec. 58; 29 C. J., p. 1150. See also S. v. Knight, 247 N.C. 754 102 S.E. 2d 259; S. v. Hovis, 233 N. C. 359, 64 S. E. 2d 564; United Life & Accident Ins. Co. v. Prostic, 169 Md. 535, 182 A. 421. These things appearing as the only reasonable inferences deducible from the testimony received in evidence, the judgment of nonsuit entered below will be upheld on the ground that the defendant’s affirmative defense of homicide was established as a matter of law by the plaintiff’s evidence. Where a defendant’s affirmative defense is so established, nonsuit may be entered. Hedgecock v. Ins. Co., 212 N. C. 638, 194 S. E. 86; Butler v. *89 Ins. Co., 213 N. C. 384, 196 S. E. 317; Thomas-Yelverton Co. v. Ins. Co., 238 N. C. 278, 77 S. E. 2d 692; Jarman v. Offutt, 239 N. C. 468, 80 S. E. 2d 248.

In Hedgecock v. Ins. Co., supra, at p. 641, the rule is stated this way: “When the plaintiff offers evidence sufficient to constitute a prima jade case in an action in which the defendant has set up an affirmative defense, and the evidence of the plaintiff establishes the truth of the affirmative defense as a matter of law, a judgment of nonsuit may be entered.”

Affirmed.

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JohnsoN, J.

Conceding, without deciding, that the plaintiff’s evidence in some aspects is sufficient to show prima facie that the insured met his death through accidental means within the insuring provisions of the policies, even so, the evidence discloses conclusively that the insured met his death by homicide as the result of being struck by Dr. Black. True, it may be inferred that Dr. Black was incited to action by the insulting language of the insured and that in striking the blow he had no intent to kill. Nevertheless, the rule is that no words, however violent or insulting, justify a blow. Lewis v. Fountain, 168 N.C. 277, 84 S.E. 278; Palmer v. R.R. 131 N.C. 250, 42 S.E. 604; 6 C. J. S., Assault and Battery, Sec. 91, p. 943. And death having resulted from the voluntary, unlawful act of Dr. Black, i.e.; an assault and battery, it was death by “homicide” within the meaning of the exception clauses of the policies. 40 C. J. S., Homicide, Sec. 58; 29 C. J., p. 1150. See also S. v. Knight, 247 N.C. 754 102 S.E. 2d 259; S. v. Hovis, 233 N. C. 359, 64 S. E. 2d 564; United Life & Accident Ins. Co. v. Prostic, 169 Md. 535, 182 A. 421. These things appearing as the only reasonable inferences deducible from the testimony received in evidence, the judgment of nonsuit entered below will be upheld on the ground that the defendant’s affirmative defense of homicide was established as a matter of law by the plaintiff’s evidence. Where a defendant’s affirmative defense is so established, nonsuit may be entered. Hedgecock v. Ins. Co., 212 N. C. 638, 194 S. E. 86; Butler v. *89 Ins. Co., 213 N. C. 384, 196 S. E. 317; Thomas-Yelverton Co. v. Ins. Co., 238 N. C. 278, 77 S. E. 2d 692; Jarman v. Offutt, 239 N. C. 468, 80 S. E. 2d 248.

In Hedgecock v. Ins. Co., supra, at p. 641, the rule is stated this way: “When the plaintiff offers evidence sufficient to constitute a prima jade case in an action in which the defendant has set up an affirmative defense, and the evidence of the plaintiff establishes the truth of the affirmative defense as a matter of law, a judgment of nonsuit may be entered.”

Affirmed.

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102 S.E.2d 521, 248 N.C. 86, 1958 N.C. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldberg-v-united-life-acc-ins-co-concord-nh-nc-1958.

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