Gulf Life Ins. Co. v. Ferguson

• Decision Date: 10 June 1952
• Citation: 59 So.2d 371
• Parties: GULF LIFE INS. CO. v. FERGUSON.
• Court: Florida Supreme Court

Page 371

59 So.2d 371

GULF LIFE INS. CO. v. FERGUSON.

Supreme Court of Florida, en Banc.

June 10, 1952.

Philip D. Beall, Pensacola, for appellant.

Richard P. Warfield, Pensacola, for appellee.

TERRELL, Justice.

November 15, 1948, Gulf Life Insurance Company issued James P. McCraney a policy of insurance on his life, in which appellee was named as beneficiary. January 6, 1949, the insured died and his widow, now Susie McCraney Ferguson, brought this suit to recover on the policy. Defendant denied liability on the ground that insured made false representations as to his physical history when he applied for the policy. The case went to trial resulting in a verdict and judgment for the plaintiff, a new trial was denied and this appeal was prosecuted.

The point for determination is whether or not in a suit to recover on a contract of life insurance, where the defense of fraud in procuring the policy is interposed and no response thereto is proffered by the plaintiff, the plaintiff should be permitted over objection of the defendant, to introduce evidence at the trial to prove estoppel or waiver of the defense of fraud.

Rule 8, Florida Common Law Rules, 30 F.S.A., contemplates that the issues in a cause will generally be made by the answer to the complaint. When this is done there is no occasion for further pleading. In the case at bar the complaint is in the usual form based on a life insurance policy. If defendant had done no more than traverse the allegations of the complaint the case would have been at issue. Instead defendant filed pleas raising the defense of fraud in that (1) when deceased applied for the policy he represented that he was not addicted to the use of intoxicating liquors and in fact did not indulge in alcoholic beverages. (2) Deceased had not had a physical examination by a doctor or any illness not mentioned in his application for two years immediately preceding the date thereof. To this defense there was no responsive pleading on the part of plaintiff.

At the trial plaintiff introduced evidence to show that defendant was estopped to raise the defense of fraud in securing the policy because the agent of defendant had prepared the application for the policy without the aid of the insured and that if there were untruthful statements in it deceased was not responsible for them. Defendant seasonably objected to this testimony on the ground that it was immaterial to any issue raised by the pleadings and that if plaintiff intended to rely on any such defense the issue should have been raised as contemplated by the rules. The trial court held that it was not essential that a reply to the defense of fraud be interposed in order that evidence supporting estoppel or waiver be introduced. Defendant's objections were therefore overruled, the evidence was introduced, the court treated the issues as if they had been regularly raised by the pleadings and the trial proceeded to judgment.

We think the court was in error in so ruling. The clear requirement of Subsection (d) of Rule 9, Common Law Rules, is that when affirmative defenses are raised they are deemed as denied if an affirmative defense is not offered. No such issue was made but the court permitted evidence to prove waiver or estoppel and did not charge the jury that it was solely for the purpose of rebuttal. Waiver or estoppel was the major issue on which the case was decided, yet it was not affirmatively pleaded and defendant was not on notice of such an issue by the pleading. There was abundant evidence showing fraud in procurement of the policy. The judgment is accordingly reversed with permission to amend the pleadings and grant a new trial if desired.

Reversed.

SEBRING, C. J., and THOMAS and HOBSON, JJ., concur.

CHAPMAN, ROBERTS and MATHEWS, JJ., dissent.

CHAPMAN, Justice (dissenting).

The plaintiff-appellee, Susie McCraney Ferguson, sued the Gulf Life Insurance Company in the Circuit Court of Escambia County, Florida, for the proceeds of a certain life insurance policy upon the life of one James P. McCraney, who, it was alleged, died on the 6th day of January, 1949. The policy sued upon issued on November 15, 1948, and was for the sum of $500 and the plaintiff-appellee was the beneficiary named in the policy.

The defendant-appellant filed numerous pleas going largely to the point that James P. McCraney, in his written application for the policy of insurance, made statements and answers wherein he warranted that all statements and answers in the application for the insurance were true, and the appellant relying upon the truthfulness of the statements and answers issued the policy in question.

There was no denial: (1) that the appellant issued the policy sued upon; (2) that the premiums were paid at the proper time; (3) that James P. McCraney died on January 6, 1949; and (4) that the plaintiff-appellee was the beneficiary named in the policy. Since the statement of facts supra was admitted and the policy had been admitted into evidence, the burden of proof, as a matter of law, then shifted to the defendant-appellant to establish the truth of one or more of the defenses set up by a preponderance of the evidence. The case went to the jury on the issues made by the complaint and defendant's defenses 4 and 5. There was a verdict and judgment entered below for the plaintiff-appellee and the defendant appealed.

Defense No. 4 set up that the applicant made false and untrue statements and answers to questions in his application for the policy sued upon, and questions and answers are viz.: (28) 'Do you use alcoholic liquors? A. No.' 'If yes, give kind, frequency and amount.' The answer as given was 'None'. '(29) Have you ever used alcoholic liquors to excess or intoxication?' The answer was 'No.' The defendant contended that the answers to the questions were false because McCraney had, for a considerable period of time prior to October 22, 1948, indulged in the use of alcoholic liquors to excess and to the degree of intoxication.

Defense No. 5 was to the effect that the answers of McCraney to the following questions propounded to him in the written application for the policy were false: 'Q. Have you had a check up or examination by a doctor (other than for employment purposes) and or any illness not already mentioned, within the past two years?' The answer was 'No'. 'Disease or Impairment...