Jones v. General Acc., Fire & Life Assur. Corp., Limited, of Perth, Scotland

• Citation: 137 So. 889,103 Fla. 787
• Parties: JONES v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LIMITED, OF PERTH, SCOTLAND.
• Decision Date: 02 December 1931
• Court: United States State Supreme Court of Florida

137 So. 889

103 Fla. 787

JONES v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LIMITED, OF PERTH, SCOTLAND.

Florida Supreme Court, Division B.

December 2, 1931

Certiorari to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by Lula M. Jones against General Accident, Fire & Life Assurance Corporation, Limited, of Perth, Scotland. Judgment of nonsuit was affirmed by the circuit court, and plaintiff brings certiorari.

Judgment of civil court of record, affirmed by circuit court, quashed.

BROWN J., dissenting.

Syllabus by the Court.

SYLLABUS

A case should not be taken from the jury, unless the conclusion follows from the evidence as matter of law that no recovery can be lawfully had upon any view taken of facts that the evidence tends to establish.

Where in an action on an accident insurance policy which insures against 'the effects resulting directly and exclusively of all causes, from bodily injury sustained * * * solely through external, violent and accidental means,' it is alleged that the decedent 'was struck by a moving automobile and in consequence thereof directly and exclusive of all other causes, sustained bodily injury from which such injury solely the death * * * resulted,' though there be positive evidence that the insured died of 'tuberculosis of left kidney and of bladder,' yet, where there is evidence from which a jury might infer that the death actually resulted 'directly and exclusive of all other causes, from bodily injury sustained solely through external violent and accidental means,' within the meaning of the policy, a verdict should not be directed for the insurer, but the case should be submitted to the jury with proper instructions.

Where a civil court of record directs a verdict when the case should be submitted to the jury, and a judgment on the directed verdict is affirmed by the circuit court, the Supreme Court may review the record on certiorari.

COUNSEL

George C. Bedell and Chester Bedell, both of Jacksonville, for petitioner.

Lee Guest and Wm. A. Stanley, both of Jacksonville, for respondent.

OPINION

WHITFIELD P.J.

Lula M. Jones, as beneficiary, brought an action in the civil court of record on an insurance policy to recover for the accidental death of her husband, Philip Jones, it being alleged that the decedent 'was struck by a moving automobile and in consequence thereof directly and exclusive of all other causes sustained bodily injury from which such injury solely the death of the said Philip Jones resulted.'

The policy insured against 'the effects resulting directly and exclusively of all other causes, from bodily injury sustained solely through external, violent and accidental means.' When apparently in good health, the insured was struck by an automobile, May 12, 1927, and continued in ill health till his death, August 10, 1927. The main defense was that the death was cause at least in part by disease.

The court rendered the following:

'The parties in this cause having concluded the submission of evidence in support of the issue joined, the defendant moved the Court to instruct the jury to find a verdict for defendant; and the Court having heard argument of counsel for the respective parties did grant said motion and announce its purpose to instruct the jury to find a verdict for the defendant. To which ruling the plaintiff did then and there except.

'And the plaintiff, thereupon and before the jury retired, did move for a non-suit with bill of exceptions.

'Whereupon it is considered by the Court that said motion be granted, and that plaintiff have sixty days from this date within which to present her bill of exceptions.

'It is thereupon further considered by the Court that the plaintiff take nothing by her suit, and that the defendant go thereof without day, and have and recover its costs.'

On appeal to the circuit court, the judgment of the civil court of record was affirmed.

This court granted a writ of certiorari to the affirming judgment of the circuit court.

For a proper form of judgment where nonsuit is allowed, see Spiker v. Hester (Fla.) 133 So. 872; Id. (Fla.) 135 So. 502....