Insurance 38 — Where an accident and health policy excludes from its coverage death of the insured caused by intentional act of any person, evidence establishing that insured was intentionally shot and killed by his wife justices nonsuit. G.S. 58-253 (6), referring to death by unlawful conduct of insured, is not applicable, and the fact that the exclusion clause in the policy is not in the terms of that statute is immaterial.
BARNHILL, C.J., and DEVIN, J., took no part in the consideration or decision of this case.
Civil action in which plaintiff administrator of Johnnie Patrick seeks to recover $1,200.00 under a health and accident insurance policy No. 2364820, issued by the defendant on 26 February, 1951. The policy obligated the defendant, under specified conditions, to pay to the beneficiary $1,000.00, the face amount of the policy, plus an additional $100.00 each year for a term of 10 years. The policy contained the following: "This policy does not cover death or injury resulting: (2) From the intentional act of any person." The above exclusion clause was pleaded as a bar to plaintiff's right to recover.
By consent, a jury was waived. The judge heard the case without a jury. Plaintiff's counsel admitted, and the court found as a fact: "That on the fourth day of March, 1953, without provocation, either by words or actions on the part of said Johnnie W. Patrick, his wife, Dorothy L. Patrick, intentionally shot and killed the said Johnnie W. Patrick; and that the said Dorothy L. Patrick was tried in the Superior Court of Washington County, January 1954 Term, convicted of the crime of manslaughter and sentenced by the court to a term of 10 years in State Prison." The court held that the death of insured was not covered by the policy and entered judgment denying recovery. Plaintiff excepted and appealed.
PER CURIAM.
The plaintiff seeks to get around the exclusion clause in the policy by claiming the clause is contrary to the optional standard provision as set out in G.S. 58-253 (6). The section cited refers to the unlawful conduct of the insured. In this case it is admitted that the insured was without fault. The section cited, therefore, has no application. On the authority of Whitaker v. Insurance Co., 213 N.C. 376, 196 S.E. 328, the judgment is
Affirmed.
BARNHILL, C.J., and DEVIN, J., took no part in the consideration or decision of this case.