April 1, 1968.James M. Morris, Esq., of Manning, for Appellant, cites: As to in an action to recover the added indemnity providedby life policies for accidental death, the beneficiary has theburden of showing that death was accidental: 112 F.2d 769; 127 S.E.2d 132, 241 S.C. 46; 241 S.C. 299, 128 S.E.2d 171. As to contracts being construed by thecourts; but where a contract is not clear, or is ambiguousand capable of one or more constructions, what the partiesreally intended as a matter of fact should be submitted to ajury: 241 S.C. 299, 128 S.E.2d 171; 243 S.C. 405, 134 S.E.2d 217; 248 S.C. 374, 149 S.E.2d 915. As to error on part of trial judge in refusing motion fornonsuit, directed verdict, Judgment NOV or, in the alternative,a new trial: 208 S.C. 168, 37 S.E.2d 505; 243 S.C. 405, 134 S.E.2d 217; 45 C.J.S., Secs. 776, 809; 45 C.J.S., Secs. 776, 810, 811; 241 S.C. 384, 128 S.E.2d 699; 237 S.C. 47, 115 S.E.2d 500; 248 S.C. 374, 149 S.E.2d 915. As to error on part of trial judgein charging the jury on the death of the insured by violentor external means: 208 S.C. 168, 37 S.E.2d 505. Asto the jury being coerced into reaching a verdict after returningtwice and stating to the Court that they were hopelesslydeadlocked: 126 S.C. 437, 120 S.E. 230; 235 S.C. 380, 111 S.E.2d 692; 54 S.C. 234; 105 S.C. 243, 89 S.E. 643; 239 S.C. 85, 121 S.E.2d 432. Ralph F. Cothran, Esq., of Manning, for Respondent, cites: As to there being ample proof of accidental death: 37 S.E.2d 505; 29 Am. Jur., 349, Sec. 1211.

In reaching contra results in Burk v. Prudential Ins. Co., 7 N.C. App. 209 ( 172 S.E.2d 67); Guardian Life Ins. Co. v. Scott, (Tex. Sup. Ct.), 405 S.W.2d 64; Aetna Life Ins. Co. v. Adams, (Tex.Civ.App.) 447 S.W.2d 453; Patterson v. Aetna Life Ins. Co., 248 S.C. 374 ( 149 S.E.2d 915), the courts noted that mere availability of outside physical facilities, without a contract therefor, was not sufficient; that a definition which says "has" does not mean merely "has access"; or that the plain, clear and unambiguous policy definition of "hospital" required the hospital to have the specified capabilities on the hospital premises and be primarily engaged in providing the specified services. The general rule which was applied in the above cases and which is to be applied here is that policies of insurance are to be liberally construed in favor of the object to be accomplished and in favor of the insured except when the language is so unmistakably clear and unambiguous as to allow but one meaning.

The only portion of the definition about which the parties on appeal present any real argument and dispute is whether the evidence demanded a finding either for or against that portion of the definition which requires that the institution be "operated continuously with organized facilities for operative surgery." Appellee contends that the evidence demands a finding that a working agreement was had with hospitals in the area where the complainant's child resided and was a patient, and that the case is controlled by the following decisions, the first of which involves an identical policy and the same institution but at a location different from that in the present case: Travelers Ins. Co. v. Esposito, 171 So.2d 177 (Fla.App.); Reserve Life Ins. Co. v. Marr, 254 F.2d 289; Reserve Life Ins. Co. v. Mattocks, 6 Ariz. App. 450 ( 433 P.2d 303); McKinney v. American Security Life Ins. Co., 248 S.C. 374 ( 149 S.E.2d 915) where there were no facilities for surgery and no agreement with a hospital for surgical facilities. See also Guardian Life Ins. Co. of America v. Scott, 405 S.W.2d 64 (Texas), involving a Devereux Foundation facility and holding that under the policy there involved having facilities at another hospital was not in compliance with the terms of the policy in that case.

Accordingly, numerous courts have upheld denials of coverage where the "hospital" definitions therein contained requirements similar to the definition in the instant case. See Guardian Life Insurance Company of America v. Scott, 405 S.W.2d 64 (Tex.Sup.Ct. 1966); Burk v. Prudential Insurance Company of America, 7 N.C. App. 209, 172 S.E.2d 67 (1970); Patterson v. Aetna Life Insurance Company, 248 S.C. 374, 149 S.E.2d 915 (1966). Plaintiff cites two cases which he claims support his claim that he is entitled to coverage.

The judicial function of a court of law is to enforce contracts as made by the parties and not to re-write or distort, under the guise of judicial construction, the terms of an unambiguous contract. Patterson v. Aetna Life Ins. Co., 248 S.C. 374, 149 S.E.2d 915 (1966). Here, the contract clearly provides that the leases may be transferred "upon consent of the lessor."

Messrs. Boyd, Knowlton, Tate Finlay, and Daniel R.McLeod, Atty. Gen., of Columbia, for Appellants, cite: Asto the amendment as set out in the letter of agreement havingbeen executed according to the terms of the contract: 129 F. Supp. 4; 199 S.C. 325, 19 S.E.2d 463; 199 S.C. 332. As to the contract, with regard to whom may executean amendment, not being susceptible of two or more reasonableinterpretations so the rule favoring construction ofambiguities in favor of the insured should not be applied: 238 S.C. 438, 120 S.E.2d 509; 144 F. Supp. 5; 207 S.C. 150, 35 S.E.2d 160; 238 S.C. 600, 121 S.E.2d 200; 43 Am. Jur.2d Insurance § 271; 144 F. Supp. 9; 158 S.C. 394, 155 S.E. 617; 252 S.C. 519, 167 S.E.2d 420; 199 S.C. 325, 19 S.E.2d 463; 220 S.C. 335, 67 S.E.2d 512; 248 S.C. 374, 149 S.E.2d 915. Messrs. Stephen Cummings, of Spartanburg, for Respondent, cite: As to the Amendment as set out in the letterof agreement not having been executed according to theterms of the contract: 252 S.C. 519, 167 S.E.2d 420. As to the contract, with regard to whom may execute anAmendment, being susceptible to two or more reasonableinterpretations so that the rule favoring construction of ambiguitiesin favor of the insured should be applied: 144 F. Supp. 5, affirmed; 242 F.2d 136; 207 S.C. 150, 35 S.E.2d 160; 233 S.C. 376, 104 S.E.2d 673; 191 S.C. 187, 4 S.E.2d 248.

However, the administrator of the institution stated in his deposition that the institution had access to the facilities of one or more of the hospitals with which the institution's doctors were associated. The Texas court held that this did not satisfy the policy definition for a hospital. In the case of Patterson v. Aetna Life Insurance Company, 248 S.C. 374, 149 S.E.2d 915 (1966), the insurance policy under consideration recited: "The term `hospital' means only an institution which meets fully everyone of the following tests, namely, (a) it is primarily engaged in providing — for compensation from its patients and on an inpatient basis — diagnostic and therapeutic facilities for the surgical and medical diagnosis, treatment, and care of injured and sick persons * * *."