Massachusetts Bonding & Ins. Co. v. Williams

• Decision Date: 30 March 1936
• Citation: 167 So. 12,123 Fla. 560
• Parties: MASSACHUSETTS BOUNDING & INS. CO. v. WILLIAMS.
• Court: Florida Supreme Court

167 So. 12

123 Fla. 560

MASSACHUSETTS BOUNDING & INS. CO. v. WILLIAMS.

Florida Supreme Court

March 30, 1936

Error to Circuit Court, Pasco County; John U. Bird, Judge.

Action by S.D. Williams, as administrator of the estate of Eppes Tucker, deceased, against the Massachusetts Bonding &amp Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

COUNSEL McKay, Macfarlane, Jackson & Ramsey, of Tampa for plaintiff in error.

Dayton Dayton & Dayton, of Dade City, for defendant in error.

OPINION

PER CURIAM.

Eppes Tucker, on May 7, 1934, filed his declaration against the Massachusetts Bonding & Insurance Company, alleging substantially that defendant, in consideration of the payment of a premium and a policy fee, undertook to insure plaintiff during the life of the policy, against the effects resulting directly and exclusively of all other causes from bodily injuries sustained solely through external, violent, and accidental means, exclusive of suicide, in the sum of $100 a month for a period not exceeding five years, where the injury alone within five days after the accident wholly and continuously disables the insured from performing any and every duty pertaining to his occupation as lawyer, for the continuous period of total loss of time caused thereby; that during the life of the policy, plaintiff was struck down by an automobile in Hillsborough county, Fla causing him to sustain a fractured skull, concussion of the brain, a fractured vertebra, third lumber, injury to vertebra of the neck and internal injuries, by reason of which plaintiff has been wholly and continuously disabled from transacting any and every kind of business pertaining to his said occupation from the date of injury until the filing of this suit; that plaintiff has complied with all the terms, conditions, and provisions of said policy, but defendant has refused to pay plaintiff the sum of $100 per month from the date of injury to the date hereof, and defendant has refuted all liability on its contract of insurance; that, by necessity, the claim was placed in the hands of an attorney for collection, and plaintiff is entitled to be indemnified for a reasonable compensation to be paid as attorney's fees; wherefore plaintiff claims $2,500 damages. The policy of insurance was attached to the declaration as an exhibit.

To this declaration, defendant filed four pleas.

The first and second pleas are practically the same, although each alleges plaintiff's fraud in slightly different language. These pleas allege substantially that plaintiff signed and delivered to defendant an application for insurance containing the following printed question, '7. Have you ever been declined, postponed, restricted or rated up for life, accident or health insurance, or have you ever had any such insurance cancelled or renewal thereof refused?' and plaintiff's answer to that question was, 'No'; that the application contained a stipulation to the effect that the answers to the questions were made to induce issuance of the policy, and that the applicant's right to recover should be forfeited if any answer was false, and made with the actual intent to deceive, and affected the risk assumed by the company; that the application was part of the policy, and that the policy and the papers attached thereto contained the entire contract between the parties; that applicant, at the time when applying to defendant for this insurance, had had policies canceled by the following companies: United States Fidelity & Guaranty Company, of Baltimore, Md., canceled June, 1930; Federal Life Insurance Company, of Chicago, Ill., canceled 1930; North American Accident Insurance Company, of Chicago, Ill., canceled in 1931; New Amsterdam Casualty Company, of Baltimore, Md., canceled in 1931; and the Pacific Mutual Life Insurance Company, of Los Angeles, Cal., in January, 1932, rejected plaintiff's application for insurance; that plaintiff's answer to said question was wholly false and untrue, thus materially affecting the risk assumed by defendant; and defendant denies any liability under the policy, and tenders the court the sum of $4.30 paid by plaintiff to defendant.

The third and fourth pleas are likewise practically the same. They allege substantially that one of the questions in the application was as follows: 'Have you in the past five years had medical or surgical advice or treatment or any departure from good health?' and plaintiff answered, 'Yes'; and the next question was as follows: 'If so, state when and what, and duration'; and plaintiff answered: 'In the month of April, 1930, automobile injuries--fully recovered. Duration of ailment two months'; that the application contained a stipulation to the effect that the answers to the questions were made to induce issuance of the policy, and that applicant's right to recover should be forfeited if any of the answers were false, and made with the actual intent to deceive, and affected the risk assumed by the company; that the duration of the ailment from said automobile injury was more than two months for which disability plaintiff received $1,500 from the New Amsterdam Casualty Company on a $40 per week disability policy, and $800 from the United States Fidelity & Guaranty Company on a $25 per week disability policy; that the answer of plaintiff to said question was wholly false and untrue and materially affected the risk assumed by the defendant; and defendant denies any liability under the policy, and tenders the court the sum of $4.30 paid by plaintiff to defendant.

Plaintiff filed replications to the first and second pleas alleging substantially that the agent of the defendant company wrote down the answers to the questions after making verbal inquiries of plaintiff and plaintiff had answered verbally; that when said agent propounded the seventh question, plaintiff answered it in the affirmative, and told the agent that he had had insurance canceled by the following companies: United States Fidelity & Guaranty Company, of Baltimore, Md.; Federal Life Insurance Company, of Chicago, Ill.; North American Accident Insurance Company, of Chicago, Ill.; New Amsterdam Casualty Company, of Baltimore, Md.; and that the Pacific Mutual Life Insurance Company, of Los Angeles, Cal., rejected plaintiff's application and declined to grant him insurance; that the agent did willfully and without the knowledge, consent, or acquiescence of the plaintiff insert 'no' in answer to said question; that plaintiff signed said application believing the agent had correctly reported all of the facts given in reply to the questions; and plaintiff did not learn that said question was answered 'no' until after receiving said injuries; that plaintiff denies answering falsely the above-mentioned question or that he wrongfully concealed from defendant the fact that other insurance companies had canceled policies on him; and denies that the alleged false statement materially affected the risk.

Plaintiff joined issue on the third and fourth pleas.

Defendant filed a demurrer to plaintiff's replications to the first and second pleas, which demurrer was overruled by the court.

Trial of the issues was had on October 11, 1934.

After introduction of all the evidence, defendant made a motion that the court instruct the jury to find for the defendant. The court denied the motion.

After the arguments of counsel and the instructions of the court were heard, the jury returned a verdict in favor of plaintiff, assessing his damages at $1,123.31 and awarding him $160 as attorney's fees.

Defendant's motion for a new trial was denied by the court on March 15, 1935.

Upon motion of the defendant stating that Eppes Tucker died intestate about March 21, 1935, after judgment was rendered but before writ of error was taken, and that thereafter S.D. Williams was appointed and is now duly qualified and acting as administrator of the estate of Eppes Tucker, deceased, the court ordered that the cause be revived in the name of S.D. Williams, as administrator of the estate of Eppes Tucker, deceased, and that his name be inserted as party plaintiff in the cause.

Final judgment in favor of plaintiff was entered on the verdict of the jury.

From the final judgment, defendant took...