Florida Life Ins. Co. v. Dillon

• Citation: 63 Fla. 140,58 So. 643
• Parties: FLORIDA LIFE INS. CO. v. DILLON.
• Decision Date: 08 May 1912
• Court: Florida Supreme Court

58 So. 643

63 Fla. 140

FLORIDA LIFE INS. CO. v. DILLON.

Florida Supreme Court

May 8, 1912

Error to Circuit Court, Jackson County; J. Emmett Wolfe, Judge.

Action by John M. Dillon against the Florida Life Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Wherever fraud is relied upon in any pleading, either at law or in equity, the allegations or averments should be specific, and the ultimate facts constituting the particular fraud relied upon should be stated with certainty and distinctness, else such pleading, upon proper attack, will be held had.

The sufficiency of pleas setting up fraud as a defense is properly raised by demurrer.

In an action a life insurance policy, which contains a clause that with the exception of the suicide of the insured within one year from the date of such policy, 'the policy will be incontestable from any cause from the date of its issue provided the premiums have been duly paid,' a demurrer is properly sustained to pleas which attempt to set up fraud on the part of the insured in his answers to certain questions in his application fos such policy, but which pleas fail to show any actual fraud practiced by the insured.

COUNSEL Fletcher & Dodge, of Jacksonville, and Lewis &amp Buford, of Marianna, for plaintiff in error.

C. L. Wilson, of Marianna, for defendant in error.

OPINION

SHACKLEFORD J.

The defendant in error, as plaintiff below, brought an action against the plaintiff in error, as defendant, upon two insurance policies issued by the defendant upon the life of Perry Mitcham Wingate. One of the policies is dated the 20th day of October, 1909, is for the sum of $2,000, and made payable to John M. Dillon, a creditor of the insured, and forms the basis for the first count in the declaration. The other policy is dated the 21st day of October, 1909, is for the sum of $1,500, made payable to Luella D. Wingate, the wife of the insured, was regularly transferred and assigned to the plaintiff, and forms the basis for the second court of the declaration. Each of such policies is attached to and made a part of the declaration. There is no occasion to copy the declaration or policies. Each policy contains the following clauses:

'This policy is issued in consideration of the statements and agreements in the application and medical examination, which are hereby made a part of this contract, and the payment in advance of' the premiums for the first year, the amount of which is recited.

'The privileges, conditions and provisions set forth on the following pages form a part of the contract as fully as if recited over the signatures hereto attached.'

'Suicide, whether the insured be sane or insane, is a risk not assumed by the company during the first year of this policy. With this exception the policy will be incontestable from any cause from the date of its issue provided the premiums required have been duly paid.'

The declaration alleges the death of the insured on the 11th day of April, 1910, and that due notice and satisfactory proofs of his death were made to and received and accepted by the defendant company, yet it had failed and refused to pay the amounts of such policies, or any part thereof.

The defendant filed nine pleas to the declaration, to all of which a demurrer was successfully interposed; whereupon the defendant filed 10 'amended and additional pleas,' and attached thereto as an exhibit the application of the insured to the company for insurance and the medical examiner's report, in which are set out the answers to the various questions propounded in each paper. A demurrer was likewise successfully interposed by the plaintiff to all of these amended and additional pleas. The defendant declined to plead further; whereupon final judgment was rendered in favor of the plaintiff, which judgment is brought here by the defendant for review. Twenty-one errors are assigned, all of which, except the last two, question the correctness of the rulings of the trial judge in sustaining the demurrers to the respective pleas. The twentieth assignment is not argued, and therefore must be held, under our repeated decisions, to be abandoned. The twenty-first assignment is based upon the rendering of the final judgment.

The plaintiff in error rightly says that 'there is little necessity to argue each assignment of error separately, because the same question is involved in each assignment.' In its brief is the further statement that 'the first set of pleas filed did not allege any knowledge on the part of the insured as to the falsity of his statements, while the last set of pleas did allege knowledge on the part of the insured as to his false statements.' Admittedly, then, the second set of pleas are fuller and better than the first set. This being true, if we should find that the demurrer was properly sustained to such second set of pleas, there would be no occasion to consider the correctness of the ruling sustaining the demurrer to the first set of pleas. It will doubtless also prove sufficient to select the strongest of the second set of pleas for examination. This course we shall pursue. We copy the eighth, ninth, and tenth of such pleas, which are as follows:

'(8) And for a further plea the defendant says that the policy of insurance sued upon provided that the same was issued in consideration of the statements and agreements in the application and medical examination of Perry Mitcham Wingate the insured, and that the same were made a part of the policy of insurance sued upon; that said policy also provided that the same, and the application therefor and the statements made to the medical examiner, taken together, constituted the entire contract on the part of this defendant; and the defendant says that the said Perry Mitcham Wingate, in his application for said policy of insurance, did agree that every statement and answer contained in said application, and every statement to the company's medical examiner at the time of the application for said policy of insurance, was true; and the said Perry Mitcham Wingate, in his answers to the medical examiner under his application for said policy of insurance, did warrant, in writing, that the answers to the questions stated in said medical examination and said application for said policy of insurance were complete and true; and the defendant says that the said answers of said Perry Mitcham Wingate to the company's medical examiner and the answers in said application were not complete and true, in this: That the said Perry Mitcham Wingate, in answer to the question, 'Have you ever had any other illness, local disease or personal injury?' answered, 'No,' and this defendant says that the said answer was untrue; that the said Perry Mitcham Wingate, during the past few years, up to the time of the application for this policy of insurance, had been frequently treated by different doctors for various diseases and ailments, and said Perry Mitcham Wingate was frequently confined to his house for months at a time, previous to his application for insurance under said policy, and previous to the time of his answer to said question asked by the medical examiner of this defendant; and said Perry Mitcham Wingate, about six or eight months previous to the time he obtained the said policy of insurance and made said application and said answers, had been treated for pains in his head, at the base of his brain, by a professional physician, and the said Perry Mitcham Wingate's death was caused either by paralysis or dyspepsia; that said Perry Mitcham Wingate had suffered with his head for a year or more, and had been so suffering at the time of his answers to the medical examiner of this defendant. And the...