#### KATHERINE SANDERLIN v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE.

(Filed 2 November, 1938.)

1. Insurance § 38 — Evidence held insufficient to show death by accidental means within coverage provision of policy.

Plaintiff beneficiary’s evidence tended to show that insured died as a result of an accident occurring when the door of the ear in which he was riding came open and insured fell or was thrown out of the car. Held: The death was not by accident within the coverage of a policy providing *363for liability if insured should die by accident occurring by bis being struck by an automobile, or by collision or accident to an automobile in wbieb be was riding.

2. Insurance § 13—

An insurance contract must be construed as tbe parties bave made it.

Appeal by plaintiff from Grady, J., at May Term, 1938, of Oeaven.

Affirmed.

Suit to recover upon an accident insurance policy. At tbe close of plaintiff’s evidence, motion for judgment of nonsuit was allowed. Plaintiff appealed.

M. 8. Bunn and R. B. Whitehurst for plaintiff.

Barden & Stith for defendant.

Devin, J.

Tbe plaintiff was tbe beneficiary named in a policy of accident insurance issued by tbe defendant on tbe life of Bill Sanderlin, Jr., son of plaintiff, aged six years. By tbe policy tbe defendant contracted, in consideration of tbe premium specified, to insure tbe person named in tbe policy against tbe result of bodily injuries received and effected solely by external, violent and accidental means, strictly in tbe manner and subject to all tbe provisions and limitations contained in tbe policy, tbe pertinent portions of wbieb are as follows: If tbe insured shall suffer loss of life “by being struck by actually coming in physical contact with tbe vehicle itself and not by coming in contact with some object loaded or attached thereto, or some object struck and propelled against tbe person by said vehicle, which is being propelled by steam, . . . gasoline or liquid power, while tbe insured is walking or standing on a public highway; . . . or by collision of, or by any accident to, any private horse-drawn vehicle, private motor-driven automobile or motor truck inside of which tbe insured is riding or driving . . .; provided, that in all cases referred to in this paragraph there shall be some external or visible injury to and on tbe said vehicle of tbe collision, or accident.”

Tbe plaintiff’s evidence tended to show that plaintiff and her husband, a daughter aged fifteen years, and tbe insured, Bill Sanderlin, Jr., were riding in a four-door automobile being driven by plaintiff’s husband along tbe highway near Jacksonville, North Carolina. Plaintiff and her husband were on tbe front seat and tbe daughter and tbe insured were on tbe rear seat, tbe daughter being asleep at tbe time. Tbe automobile was being driven at a speed of between forty and fifty miles per hour. By some means tbe rear door came open and tbe insured fell or was thrown out of tbe car, resulting in bis death. Later, a dent or mark was discovered on tbe bowl of tbe rear fender.

*364It is apparent that tbe unfortunate death of tbe insured did not occur in any manner against wbicb tbe defendant bad contracted to insure. Tbe injury was not witbin tbe terms of tbe policy. It did not occur by bis being struck by an automobile while be was walking or standing on tbe highway, nor was it occasioned by collision of tbe automobile in wbicb be was riding, nor by an accident to tbe automobile. ¥e can only construe tbe contract as tbe parties have made it. Whitaker v. Ins. Co., 213 N. C., 376; Taft v. Casualty Co., 211 N. C., 507, 191 S. E., 10; Gilmore v. Ins. Co., 199 N. C., 632, 155 S. E., 566; 14 R. C. L., 931.

Tbe motion for judgment of nonsuit was properly sustained by tbe learned judge of tbe Superior Court, and tbe judgment is

Affirmed.