dissenting: I find myself unable to agree with the result reached in the able opinion written for the Court by the Chief Justice, and for the following reasons :
*5361. A careful examination of all the evidence adduced at the trial leads me to the conclusion that there was no other reasonable hypothesis upon which to account for the death of the insured but that it resulted from a wound self-inflicted. The clear provision of the policy is that: “This insurance does not cover suicide.” To my mind it is a manifest case of suicide, which the courts and everybody else should face, notwithstanding technical rules of legal procedure. However, I have no quarrel j^ith the principle of law followed by the Court and sustained by the authorities, that since the insurance is against “death by accidental means,” proof of violent death creates the inference of death by accident. This was the view held by the court below.
2. The statute of North Carolina (0. S., 6479), prescribing standard form of policy for accident insurance, authorized the insertion of the following provisions, which appeared in the policy in suit: “Written notice of injury on which claim may be based must be given to the company within twenty days. ... In the event of accidental death immediate notice thereof must be given to the company.” It was also written in the policy: “Failure to comply with any of the provisions of this policy shall render invalid any claim under this policy.”
It is uncontroverted that the insured died 8 March, 1933; that on 5 September, 1934, eighteen months later, a letter from an attorney was written the company. In this letter the company was advised of the death of the insured and request made for blanks to make formal application for the insurance benefits. On 25 February, 1935, this suit was instituted. The fact that an agent of the company, in June, 1933, a.dvised the company of the death of insured by suicide, and the receipt by it of a copy of the death certificate showing death by suicide, could not be regarded as notice of claim by the beneficiary under the policy.
The plaintiff’s contention that her failure to give notice is attributable to her total incapacity, through no fault of her own, under the rule laid down in Rhyne v. Ins. Co., 196 N. C., 717, 147 S. E., 6, in my opinion is not borne out by the evidence.
The evidence is uncontradicted that she qualified with reasonable promptness as co-executor of her husband’s estate, and in March, 1933, she made claim under six life insurance policies (unaffected by suicide), which were paid. She was admitted to the State Hospital 18 May, 1933, under a diagnosis of “drug addictional psychosis,” meaning her condition was due to over indulgence of drugs, and not to a mental illness. (Testimony of the superintendent of State Hospital, Dr. Ashby.) On 17 August, 1933, she was paroled and left that institution. At that time “her mental condition was good.” Said Dr. Ashby: “In my opinion she was competent to transact ordinary business affairs.” Thereafter she transacted business, consulted lawyers, executed deeds, traveled to *537New York, and performed many other intelligent acts before attempting to comply with the requirements of the policy to give “immediate notice” of claim, so that the facts might be promptly investigated.
Over against this we have the testimony of plaintiff’s daughter, “I thought she was insane.” Dr. Speight said: “Her mental and physical condition was not such as to enable her to read a contract of several pages of insurance policy and to comprehend and know what was required of her by the contract of the policy.” Who could ? This is a far cry from the rule laid down in Rhyne v. Ins. Co., supra.
The judge of the Superior Court, Judge Parker, who tried this case with care and reasoned judgment, and heard all the evidence at first hand, made a written statement of his reasons for granting the motion for judgment of nonsuit, and filed it at the time with the court. This statement is printed in the appellee’s brief with the consent of the appellant. I quote this statement as follows: “Now in this case the first notification that the defendant had from the beneficiary that she contended that it was an accidental killing, is a letter from Mr. Yalentine on 5 September, 1934, that is, lacking a few days being 18 months after the body of Dr. Gorham was found. She says the reason she did not give immediate notice was due to disability and she relies upon the Rhyne and Nelson cases. The Court says this, that if the beneficiary is prevented by a total incapacity to act in the matter, resulting from no fault of his own, that performance within a reasonable time by the assured after regaining his senses or by his representative after discovering the policy, would suffice. The Rhyne case, 196th Eeport, is the first case that went to our Supreme Court involving that principle of law. In that case Ehyne was insane. He was insane when the suit was brought. In the Nelson case, following the Rhyne case, Mr. Nelson was suffering from softening of the brain. Of course that was through no fault of their own, insanity and softening of the brain. In this case, the evidence is undisputed that Mrs. Gorham was suffering from no mental diseases. She was addicted to drugs and certainly the taking of drugs is a voluntary act. Dr. Ashby testified she had no trace of insanity. Not a single witness of hers has sworn she was insane. In addition to that, she has presented a number of witnesses who testified that in their opinion Mrs. Gorham was of noncapacity, but the evidence is uncontradicted that Mrs. Gorham, in the fall of 1933, signed several deeds; in 1934, she signed several deeds; she consulted Mr. F. S. Spruill in respect to this particular policy; she consulted Mr. W. S. Wilkinson in respect to accident insurance; she had the body of her husband exhumed and, of course, the purpose of that was this litigation; she carried that body to Duke University, entered into a contract with the doctor she selected to perform a post mortem, that he should not divulge *538wbat be found; sbe bas part of tbe skull taken off; sbe bad tbe bullet taken out, carried it to New York and to "Washington; it is put in tbe People’s Bank in Rocky Mount where I believe they now say part of Dr. Gorham’s skull is. Our court bas said in tbe face of facts of that kind tbe statement of a witness that tbe person was of noncapacity, is a mere assertion or expression of opinion which bas no probative value, which shows that tbe witness is mistaken, that bis opinion is utterly erroneous and does not carry tbe issue to tbe jury. In my opinion in this case, tbe fact that sbe consulted Mr. Spruill, tbe fact that sbe consulted Mr. Wilkinson, and executed those deeds, tbe fact that sbe bad tbe body of her husband exhumed, tbe fact that sbe attempts to bind the doctor by contract not to divulge wbat be found, tbe fact that sbe carried part of tbe skull and tbe bullet to cities in tbe north, show that tbe opinion of tbe witnesses who said sbe was of noncapacity is a mere assertion or expression of opinion and that she bas fatally failed to give immediate notice to this company of loss.”
I do not understand tbe majority opinion to bold as a matter of law that denial of liability by tbe defendant in its answer on tbe ground of failure to comply with tbe terms of tbe policy with respect to giving tbe notice of claim, as well as on tbe ground of suicide, would dispense with tbe'necessity of giving tbe notice, required by tbe contract of insurance against accident, and constitute a waiver on tbe part of tbe defendant. To do so would render nugatory tbe provisions contained in tbe policy with respect thereto, by which tbe parties have agreed to be bound, and which provisions are inserted in tbe policy by tbe sanction of tbe statute, and would seem to be in conflict with tbe decisions of this Court in Dewease v. Ins. Co., 208 N. C., 732, 182 S. E., 447; Whiteside v. Assurance Society, 209 N. C., 536, 183 S. E., 754; Fulton v. Ins. Co., 210 N. C., 394, 186 S. E., 486.
Tbe distinction between these cases and those cited in tbe opinion appears in tbe language quoted in Misskelley v. Ins. Co., 205 N. C., 496 (at page 505), 171 S. E., 862: “Tbe provision in tbe insurance policy requiring proof of total disability to be furnished within a certain definite time is waived by tbe company denying liability within such time upon other grounds than failure to furnish proof of total disability.” Ins. Co. v. Lewis, 183 Pac. Rep. (Okla.), 975.
Here tbe denial was contained in an answer filed (as appears from tbe record) more than two years after tbe time for giving “immediate notice” of claim under tbe terms of tbe policy bad elapsed.