North American Acc. Ins. Co. v. Moreland

• Decision Date: 10 November 1910
• Citation: 60 Fla. 153,53 So. 635
• Parties: NORTH AMERICAN ACCIDENT INS. CO. v. MORELAND.
• Court: Florida Supreme Court

53 So. 635

60 Fla. 153

NORTH AMERICAN ACCIDENT INS. CO. v. MORELAND.

Florida Supreme Court, Division A.

November 10, 1910

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by Nellie Moreland against the North American Accident Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A judgment by default properly entered against parties sui juris operates as an admission by the defendants of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. Conclusions of law, and facts not well pleaded, and forced inferences, are not admitted by a default judgment.

A judgment by default entitles the plaintiff to the relief for which a proper predicate has been laid in the declaration.

After judgment all reasonable intendments should be indulged to support the pleadings.

In an action on an indemnity contract, after judgment a declaration is not fatally defective when the character of the injury is clearly shown, and it is in effect expressly alleged that the injury was received under conditions that render the defendant liable, if it appears from the declaration that the injury could reasonably have been received under any one of the circumstances stated as a condition to liability in the contract of indemnity.

While the contract made a part of the declaration as the basis of the cause of action cannot be used to supply an omitted allegation essential in stating the right of action, and if the allegations and the contract made a part of the declaration are so repugnant or inconsistent as to neutralize each other, no cause of action would appear or the variance may be fatal, yet, if the contract is not repugnant to or inconsistent with the allegations, it may be referred to in support of, and may amplify or elucidate, proper and sufficient allegations.

Where the sufficiency of a declaration is not tested by demurrer or otherwise, and the defendant suffers judgment by default to be entered, after final judgment, on writ of error all just intendments should be indulged to sustain the pleadings, when no essential allegation in stating a cause of action is omitted.

Where the declaration affords a legal basis for a judgment, and no other question is presented for determination, the judgment will be affirmed.

COUNSEL Kay & Doggett, for plaintiff in error.

A. H King and E. G. Baxter, for defendant in error.

OPINION

WHITFIELD C.J.

The defendant brought an action in the circuit court for Duval county, Fla., on an accident insurance policy in which she was the designated beneficiary. It is alleged: 'That on July 29, 1908, in Alachua county, Fla., William H. Moreland the person insured, 'met his death from the effects of a gunshot wound then and there inflicted upon said William H Moreland's body. That said bodily injury resulting in the death of said William H. Moreland was then and there effected directly and independently of all other causes, through external, violent, and accidental means, * * * and said bodily injury and death occurred in all respects and in such circumstances as to come within the promise of said defendant to pay the said William H. Moreland's beneficiary.' The contract or policy of insurance is attached to and made a part of the declaration. By the policy it appears that the contract was to 'insure the person described * * * against loss caused by bodily injuries as hereinafter provided. * * * Two thousand dollars for loss of life * * * provided the assured shall sustain, exclusively by the means hereinafter stated (fatal) bodily injuries effected solely by external, violent, or accidental means: * * *

'(1) While actually riding as a passenger in a place regularly provided for the transportation of passengers within a street car, railroad, car, steamboat, automobile, omnibus, cab, or other public conveyance provided by a common carrier for passenger service only; or

'(2) While riding as a passenger in any passenger elevator in a place regularly provided for the sole use of passengers; or

'(3) Through the explosion of a stationary locomotive, marine, or portable boiler, when such explosion causes the destruction of such boiler; or

'(4) By the burning of a dwelling, hotel, theater, store, or barn, in which the assured may be burned by fire or suffocated by smoke, but this shall not apply to or cover the assured while acting as a volunteer or paid fireman; or

'(5) In consequence of freezing; or

'(6) At the hands of any burglar or robber when robbing, or attempting to rob, by force, the assured; or

'(7) While actually riding within any private automobile provided that the assured shall not then be a hired driver thereof, in consequence of a collision or other accident to the conveyance in which the assured is so riding; or

'(8) While riding within a conveyance drawn by horse power, provided that the assured shall not then be a hired driver thereof, nor be riding or driving in or upon any conveyance used for any business purpose, or any work whatsoever (but this exception shall not apply to any physician or surgeon then employed in the practice of his profession, or any commercial traveler selling goods from samples for future delivery only), in consequence of collision or other accident to the conveyance in which the assured is so riding; or

'(9) In case a regular physician, surgeon, undertaker, or dentist cuts or wounds himself accidentally while holding an autopsy or performing a surgical operation, and...