Peacock v. Our Home Life Ins. Co.

Decision Date09 June 1917
PartiesPEACOCK v. OUR HOME LIFE INS. CO.
CourtFlorida 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

SYLLABUS

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.

OPINION

SHACKLEFORD J.

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:

'That the policy of insurance sued upon was issued by this defendant, to the said William Lewis Peacock, on the 9th day of January, A. D. 1913, in consideration of an annual premium of $175.05, to be paid this defendant on the 15th day of October, A. D. 1913. That the said William Lewis Peacock executed and delivered to this defendant his promissory note due October 15, 1913, for the said policy. That when the said note became due, and afterwards on November 5, 1913, this defendant duly requested payment of same from the said William Lewis Peacock, and thereupon the said William Lewis Peacock refused to pay the said note, and unconditionally stated and declared he did not intend to pay said note, or in any wise comply with said contract, and averred that he would not take the said policy of insurance or pay the said note or be bound by the same.
'And it was then and there agreed between this defendant and the said William Lewis Peacock that the said contract of insurance, together with the said note given therefor, then and there stand discharged. Wherefore defendant says the said William Lewis Peacock in his lifetime renounced the said contract, and this defendant became thereby discharged.'

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.

'That the said W. L. Peacock agreed to pay the said annual premium, but wholly failed the same to do, and afterwards, about the 13th day of December, 1913, died. That in truth and in fact the said William Lewis Peacock did not in his lifetime and good health pay the annual premium provided for in said policy of insurance, to wit, the sum of $175.05, but, on the contrary, after obtaining possession of said policy, refused to pay said annual premium and declared his intention not to pay same.

'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:

'(1) The plaintiff admits that the said policy of insurance sued on was issued on January 9, 1913, and was about January 9 1913, delivered by defendant to the said William Lewis Peacock, insured. The plaintiff further admits that, at the time of the issuance and delivery of said policy by the defendant, the said William Lewis Peacock, the insured, executed and delivered to the defendant his certain promissory note, payable to the defendant, or order, for the sum of $175.05, due on or about October 15, 1913, but the plaintiff alleges that the said promissory note was accepted by the defendant as payment of the first year's premium on said policy of insurance, and that said note was executed and...

To continue reading

Request your trial
15 cases
  • Wall v. Bankers' Life Co. of Des Moines
    • United States
    • Iowa Supreme Court
    • January 23, 1929
    ...Corpus Juris, 1243, § 426; Grand Lodge Brotherhood of Railroad Trainmen v. Martin (Tex. Civ. App.) 218 S. W. 40;Peacock v. Our Home Life Insurance Co., 73 Fla. 1207, 75 So. 799;Reliance Insurance Co. v. Russell, 208 Ala. 559, 94 So. 748. See, also, Hicks, Adm'x, v. Insurance Co., 166 Iowa, ......
  • Wall v. Bankers Life Co. of Des Moines
    • United States
    • Iowa Supreme Court
    • January 23, 1929
    ... ... Co., 182 Iowa 982, 164 N.W. 780. See, also, Wright ... v. Minnesota Mut. Life Ins. Co., 193 U.S. 657, 48 L.Ed ... 832, 24 S.Ct. 549; Polk v. Mutual Reserve Fund Life ... Assn., ... Lodge Brotherhood of Railway Trainmen v. Martin (Tex ... Civ. App.), 218 S.W. 40; Peacock v. Our Home Life Ins ... Co., 73 Fla. 1207 (75 So. 799); Reliance Life Ins ... Co. v ... ...
  • Palm Beach Estates v. Croker
    • United States
    • Florida Supreme Court
    • August 31, 1932
    ... ... Bank of St. Petersburg v ... Ulmer, 66 Fla. 68, 63 So. 145; Peacock v. Our Home ... Life Ins. Co., 73 Fla. 1027, 75 So. 799; Tampa Water ... ...
  • Federal Land Bank of Columbia v. Brooks
    • United States
    • Florida Supreme Court
    • July 27, 1939
    ... ... Abbott, 73 Fla ... 402, 74 So. 488; Peacock v. Our Home Life Ins. Co., ... 73 Fla. 1207, 75 So. 799 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT