Peacock v. Our Home Life Ins. Co.
Decision Date | 09 June 1917 |
Parties | PEACOCK v. OUR HOME LIFE INS. CO. |
Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; E. C. Love, Judge.
Action by James Ann Peacock against the Our Home Life Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Syllabus by the Court
All points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration; but this principle has no applicability to and is not decisive of points presented upon a second writ of error that were not presented upon the former writ of error, and consequently were not before the appellate court for adjudication.
A judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided.
The giving of a note is prima facie not a payment, but merely an extension of time for the payment till the note matures.
Where a policy of life insurance is issued and a note is given for the first premium, which note is not paid at maturity, but the insured after the note was due and unpaid refused to pay it, and unconditionally stated that he did not intend to pay the note or in any wise comply with the contract of insurance, and stated that he will not take the policy or pay the note or be bound by the same, and it is then agreed between the insurance company and the maker of the note that the contract of insurance together with the note shall stand discharged, and the maker of the note dies without making any payment, the beneficiary, being the wife of the maker of the note, cannot recover on the policy in view of its conditions.
The judgment should not be reversed or a new trial granted in any case, civil or criminal, for errors in rulings upon the admission or rejection of evidence or for errors in giving or refusing charges, or for errors in any other matter of procedure or practice, unless it shall appear to the court from a consideration of the entire cause that such errors injuriously affect the substantial rights of the complaining party. Nor should a judgment be reversed or a new trial granted on the ground that the verdict is not sustained by the evidence, unless it appears that there was no substantial evidence to support the findaing, or that upon the whole evidence the verdict is clearly wrong, or that the jury were not governed by the evidence in making their finding.
COUNSEL James H. Finch and John H. Carter, both of Marianna, for plaintiff in error.
Chas S. Adams and Morgan Jones, both of Jacksonville, and Wm. B Farley, of Marianna, for defendant in error.
This case comes here for the second time. For the opinion rendered on the former writ of error, see Our Home Life Insurance Co. v. Peacock, 71 Fla. 35, 70 So. 775. As stated therein, James Ann Peacock brought an action against Our Home Life Insurance Company upon an insurance policy issued on the life of her husband, William Lewis Peacock, deceased, and recovered judgment, which was reversed by this court on the ground that the trial court erred in sustaining a demurrer to the fourth amended plea. Upon the former writ of error, the case was presented on the pleadings, as, upon the sustaining of such demurrer, the defendant refused to plead over, in consequence whereof judgment was rendered against the defendant. Upon the going down of the mandate from this court, the original declaration stood unchanged, as did the fourth amended plea. There is no occasion to copy the declaration, but for the purpose of rendering this opinion the more readily intelligible we again set forth the fourth amended plea, which is as follows:
The defendant also filed a further plea, which is as follows:
'Now comes the defendant, and for further plea to the plaintiff's declaration says the policy of insurance sued on contains a stipulation that it should not take effect unless the annual or authorized premium thereon is paid to the company, or an authorized agent of the company in the lifetime and good health of the insured.
'Wherefore defendant says that under the said stipulation the said policy sued on did not take effect.'
The plaintiff joined issue upon each of the foregoing pleas, and also filed the following replication to such fourth plea:
'Now comes the plaintiff, by James H. Finch and John H. Carter, her attorneys, and for replication to the fourth plea of the defendant says:
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