Whitaker v. Jefferson Standard Life Insurance

196 S.E. 328, 213 N.C. 376, 1938 N.C. LEXIS 92

Opinion

Stacy, C. J.

By the express terms of the policy in suit the double indemnity clause is not to apply in case “death results from bodily injury inflicted . . .. intentionally by another person.” Jolley v. Ins. Co., 199 N. C., 269, 154 S. E., 400; Matson v. Trav. Ins. Co., 74 Am. St. Rep., 368. It is conceded that the trial court was inattentive to this provision in charging the jury on the third issue. Warren v. Ins. Co., 212 N. C., 354. The contention is advanced, however, that, in view of the answers to the first and second issues, the submission of the third issue was unnecessary, and any error committed in respect thereof should he regarded as harmless. Bradshaw v. Ins. Co., 208 N. C., 214, 179 S. E., 665. Tbe difficulty with this suggestion lies in the fact that the third issue is the only one which imports liability under the double indemnity clause, and death resulting from “bodily injury inflicted intentionally by another person” is not covered by the clause, but comes directly within the exception appearing therein. Clay v. Ins. Co., 174 N. C., 642, 94 S. E., 289.

The meaning of the policy is not in dispute nor the law applicable thereto. The contract is of the making of the parties. They have agreed upon its terms, provisions, and limitations. “As a man consents to bind himself, so shall he be bound.” Allsbrook v. Walston, 212 N. C., 225, 193 S. E., 151; Elliott on Contracts (Vol. 3), sec. 1891. Such is the simple law of contracts. Gilmore v. Ins. Co., 199 N. C., 632, 155 S. E., 565; Headen v. Ins. Co., 206 N. C., 860, 175 S. E., 282. The defendant is entitled to have the issues submitted to the jury under a charge free from error. Warren v. Ins. Co., supra. To this end a new trial must be awarded. It is so ordered.

New trial.