#### G. E. HARRIS, Administrator of ROBERT HESTER HARRIS, v. JEFFERSON STANDARD LIFE INSURANCE COMPANY.

(Filed 15 March, 1933.)

Insurance It a — Death in tins case held caused by accidental means within terms of insurance policy sued on.

Where the insured, voluntarily engaging in a basketball game, is hit in the chest when he and one of his opponents collide, and the blow causes traumatic pneumonia resulting in the death of the insured in a few days, the death is caused by accidental means within the terms of a life insurance policy providing for double indemnity if the insured should die of bodily injury inflicted solely through external, violent, and accidental means or from bodily poisoning or infection occurring simultaneously with and in consequence of such bodily injury, for although collisions with opponents could have been foreseen and the game was voluntarily engaged in, no such injury as suffered by the insured was ' probable or foreseeable, and, since the death was through accidental means, the distinction noted by some jurisdictions between accidental death and death by accidental means is inapplicable.

Appeal by defendant from *Daniels, J.,*at August Term, 1932, of PeesoN.

No error.

Plaintiff’s intestate, Robert Hester Harris, died on 18 March, 1931. At the date of his death, two policies of insurance both issued by the defendant, one on 24 February, and the other on 1 April, 1924, each in the sum of $5,000, were in full force and effect. By virtue of the provisions of these policies, the defendant has paid to the plaintiff as the beneficiary named in each of said policies, the sum of $10,000. This sum is the face amount of said two policies of insurance.

*386Eacb of tbe policies contains a clause in words as follows:

“Double Indemnity. Tbe company will pay tbe beneficiary in full settlement of all claims hereunder double tbe face amount of tbis policy if, during tbe premium paying period, and before default in tbe payment of any premium, and before waiver of any premium on account of disability and before any nonforfeiture other than automatic premium loan is in effect, tbe death of tbe insured results from bodily injury within ninety days after tbe occurrence of such injury provided death results directly and independently of all other causes, from bodily injury effected solely through external, violent and accidental means, while the insured is sane and sober. Except, these provisions do not apply if the insured shall engage in military or naval service, or any allied branch thereof, in time of war, or in case death results from bodily injury inflicted by the insured himself, or intentionally by another person; or from engaging in aeronautic or submarine operations, either as a passenger or otherwise; or from any violation of law by the insured; or from a state of war or insurrection; or self-destruction, whether during the first policy year or afterwards; or directly or indirectly from -bodily or mental infirmity, poisoning or infection other than that occurring simultaneously with and in consequence of bodily injury.”

This action is to recover of the defendant under the provisions of the double indemnity clauses in both the policies of insurance issued by the defendant on the life of Robert Hester Harris, deceased, the sum of $10,000.

The insured, Robert Hester Harris, died at the home of his father in Person County, on 18 March, 1931. The physician, who- attended him during his fatal illness, first saw him on 11 March, 1931. This physician testified that in his opinion the insured died of pneumonia, which was the result of a traumatic condition. Other physicians who testified as expert witnesses for the plaintiff, were of the opinion that the insured died of traumatic pneumonia. All the evidence at the trial was to the effect that the insured died of pneumonia, which followed a bodily injury suffered by him while he was playing in a game of basketball on the night of 10 March, 1931.

At the date of his death, the insured, Robert Hester Harris, was about nineteen years of age. He was a student at the Roxboro High School, and was a member of the basketball team of said school. On the night of 10 March, 1931, while playing with his team in a game of basketball, he was injured by a player on the opposing team. This player had the ball, and was running with it toward the goal. In accordance with the rules of the game, the insured undertook to prevent this player from throwing the ball into the basket, which was his goal. In the collision between them, the insured was struck by his opponent in his side or on his chest.

*387Tbe injury was not inflicted intentionally, but was tbe result of tbe collision between tbe insured and bis opponent. Tbe insured fell to tbe floor,i and complained immediately of pain in bis side or cbest. In response to inquiries made by bis friends, wbo urged bim to return to tbe game, tbe insured said tbat one of bis ribs was broken, and tbat be could not continue in tbe game. He retired to tbe side lines, and was in great pain until tbe conclusion of tbe game. He then left in bis automobile and drove to tbe borne of bis sister, wbo lived some distance from Roxboro. His mother was waiting for bim there. As soon as she discovered tbat her son was ill, she insisted upon taking bim to her borne. His condition grew worse from tbe time they reached their borne, until tbe physician was called to see bim tbe next day. This physician at once suspected tbat tbe insured bad pneumonia, and later definitely diagnosed bis illness as due to pneumonia. From bis first visit to tbe insured on 11 March, 1931, until bis death on 18 March, 1931, tbe physician treated bim for pneumonia. As a witness for tbe plaintiff, this physician testified tbat tbe insured died of pneumonia, resulting from a traumatic condition.

Tbe issues submitted to tbe jury were answered as follows:

“1. Was the plaintiff’s intestate, while sane and sober, injured in tbe cbest while engaged in playing a basketball game on tbe night of 10 March, 1931, as tbe result of a collision with another player in said game, as alleged in tbe complaint? Answer: Tes.

2. If so, was said injury effected solely through violent, external and accidental means? Answer: Yes.

3. If so, did plaintiff’s intestate’s death result within ninety days from 10 March, 1931, directly and independently of all other causes, from said injury? Answer: Yes.”

From judgment tbat plaintiff recover of tbe defendant tbe sum of $10,000, with interest from 12 May, 1931, and tbe costs of tbe action, tbe defendant appealed to tbe Supreme Court.

*F. O. Carver, L. M. Carlton, W. D.. Merritt, Pou & Pou and J. L. Emanuel for plaintiff.*

*Brooks, Parker, Smith & Wharton and Cooper A. Hall for defendant.*

Connor, J.

Tbe defendant on its appeal to this Court contends tbat there was error in tbe refusal of tbe trial court to allow its motion made at tbe close of all tbe evidence, tbat tbe action be dismissed by judgment as of nonsuit, for tbat there was no evidence at tbe trial tending to show tbat tbe death of tbe insured was tbe result of a bodily injury effected solely through accidental means. Tbe defendant concedes tbat there was evidence tending to show tbat tbe death of tbe insured was acci*388dental in the sense that it was the unexpected and unforeseen result of the injury suffered by the insured while he was playing in the game of basketball. It contends, however, that the bodily injury which the insured suffered was not accidental in that sense, but was the probable result of the game in which the insured had voluntarily engaged, and that for this reason the defendant is not liable to the plaintiff in this action under the provisions of the double indemnity clauses in the policies issued by the defendant and insuring the life of Robert Hester Harris, 'deceased.

The distinction between an accidental death and a death by accidental means has been recognized and applied by courts of other jurisdictions in actions to recover on provisions in policies of insurance similar to those contained in the double indemnity clause involved in this action. No case involving such distinction has heretofore been presented to this Court. The distinction, however, was recognized and applied by the Supreme Court of California in *Rock v. Travellers Insurance Co.,*156 Pac., 1029, L. R. A., 1916E, 1096, by the Supreme Court of Rhode Island in *Kimball v. Massachusetts Accident Co., 117*Atl., 228, 24 L. R. A., 126, and by the Supreme Court of Tennessee in *Stone v. Fidelity & Casualty Co.,*133 Tenn., 613. In each of these cases, it was held that where the death of the insured resulted from his voluntary act, although such death was both unexpected and unforeseen, and for that reason accidental, the death was not caused by accidental means, within the meaning of these words as used in the policy of insurance on which the action was brought. This distinction, if conceded to be sound, is not applicable to the instant case. The insured in this ease did not by his own act cause the injury which resulted in his death. He engaged voluntarily in the game of basketball, and while he anticipated collisions during the progress of the game with players on the opposing team, no such injury as that which he suffered by the act of his opponent was probable as the result of the game. This injury was effected by accidental means within the meaning of these words as used in double indemnity clauses in his policies of insurance.

The contention of the defendant that there was error in the refusal of the trial court to allow its motion for judgment as of nonsuit cannot be sustained.

There was no error in the trial of this action. The judgment is affirmed.

No error.