Police & Firemen's Ins. Ass'n v. Hines

• Decision Date: 14 October 1938
• Citation: 183 So. 831,134 Fla. 298
• Court: Florida Supreme Court
• Parties: POLICE & FIREMEN'S INS. ASS'N v. HINES.

183 So. 831

134 Fla. 298

POLICE & FIREMEN'S INS. ASS'N v. HINES.

Florida Supreme Court, Division B.

October 14, 1938

BROWN J., dissenting.

Suit by Mina Margaret Hines, widow, against the Police &amp Firemen's Insurance Association to recover on an accident insurance policy issued on the life of her husband. To review a judgment of the circuit court affirming a judgment rendered by the civil court of record in favor of the plaintiff, the defendant brings certiorari.

Writ of certiorari quashed.

COUNSEL

Shutts & Bowen, L. S. Bonsteel, and E. S. Quick, all of Miami, for petitioner.

Batchelor & Dyer, of Miami, for respondent.

OPINION

PER CURIAM.

This is a proceeding in certiorari to the Circuit Court of Dade County, Florida, seeking to quash the judgment of that court which affirmed a judgment rendered by the Civil Court of Record of Dade County in behalf of Mina Margaret Hines against Police and Firemen's Insurance Association entered on November 7, 1935. The transcript of record shows the case at bar was heard by the Circuit Court of Dade County on appeal from the final judgment, supra, entered by the Civil Court of Record. Honorables Worth W Trammell and Jeffn. B. Browne held that the judgment should be affirmed, while Honorable Paul D. Barns held that the judgment should be reversed.

In considering an appellate judgment of the Circuit Court upon certiorari from this Court, the Supreme Court is not permitted to review the correctness of the Circuit Judge's rulings on the merits of the appeal as disclosed by the evidence in the Civil Court of Record's bill of exceptions; that is, the Supreme Court is not permitted to consider and weigh the effect of the evidence. On certiorari before the Supreme Court can look into the sufficiency of the evidence, there must be some showing that the Circuit Court adopted or enforced a wrong view of the law reviewing the case on the evidence and that it applied such wrong rule of law to its own appellate considerations and weighing of the evidence and that the case is one where the legal sufficiency of the evidence to warrant the particular judgment appealed from was appropriately raised and presented on the appeal to the Circuit Court as a ground for reversal. See Mutual Life Ins. Co. v. Johnson, 122 Fla. 567, 166 So. 442; American Railway Express Co. v. Fegenbush, 107 Fla. 145, 144 So. 320; Ulsch v. Mountain City Mill Co., 103 Fla. 932, 138 So. 483, 140 So. 218; Brinson v. Tharin, 99 Fla. 696, 127 So. 313.

The widow sought to recover on an accident insurance policy issued on the life of her husband, Johnie Needam Hines, in the amount of $2500. The declaration alleged that the husband came to his death by an accidental pistol shot, self inflicted, on December 20, 1934, and that due proof of the insured's death was given the defendant as required by the terms of the policy but payment was refused. She sought a reasonable attorney's fee as provided by statute. The case went to trial on the declaration and three pleas: (1) Not guilty; (2) the death of the insured was due to the use of intoxicating liquors; (3) the death of the insured was due to a pistol wound intentionally self inflicted and its liability under the terms of the policy was $100 and not $2500.

It is contended that the Circuit Court departed from the essential requirements of the law by failure to consider the evidence which clearly established that the insured committed suicide and the evidence fails to show the insured was accidently injured or killed. It becomes necessary to examine the record for the purpose of ascertaining whether there was any evidence to support the judgment.

The evidence shows that Johnie Needam Hines, on Monday, December 17, 1934, at 6:00 o'Clock P. M., in his bedroom at his home at Miami, Florida, shot himself and from the effects of the would died some three or four days later. He had been an employee of the City of Miami for some time prior to his death. The pistol ball entered his left chest below the heart and ranged inward and downwards and appeared above his right hip. The pistol with which he was wounded belonged to his step-son. It became out of repair and the deceased obtained the pistol in the room of his step-son, who was at the time making his home with the deceased. The deceased owned a pistol kept in good condition which he carried while on duty in behalf of the City of Miami, and while at home he kept it in his bed room when off duty. Shortly prior to his injury he told his step-son he could or would repair his pistol. The insured was locked in his room when information was had that he was shot. His wife and step-son found him suffering from a pistol wound. He told them: 'I have shot myself'. He was taken to the Jackson Memorial Hospital. The insured was not sick the day he was shot, but had been drinking some while off duty. About 1:30 P. M. on the day of the injury, he took a bath and shaved then went to bed. He was a man of good disposition and had lived with his wife since 1927 and the couple got along well. There was no evidence of the odor of whiskey on him when he was taken to the hospital. He told a number of people he shot himself but the only witness testifying that he shot himself intentionally was Dr. Hall. Dr. McKenzie was connected with the hospital from December 17th to 21st and knew the insured and described his wound and filled out the blank showing proof of death and in the blank stated the wound was accidental--he stated that it was his impression that the insured told him he shot himself accidentally. The parties offered conflicting evidence as to what the insured stated about how he received his wound. One set of witnesses testified as to a happy home life, while others testified as to trouble and friction with his wife--a separation of co-habitation for a short time; some evidence as to his remarks about killing himself, a moody disposition and excessive drinking.

This court has held that if the jury as reasonable men could have found the verdict rendered from the evidence submitted, a new trial should not be granted where evidence is conflicting. See Wilson v. Maddox, 97 Fla. 489, 121 So. 805.

Where there is conflicting evidence on the issues made and the verdict is not manifestly against the weight of the evidence, the court should not interfere with and set aside the verdict of the jury. See Burnett v. Soule, 78 Fla. 507, 83 So. 461; Tallahassee R. Co. v. Macon, 8 Fla. 299; Florida East Coast R. Co. v. Hayes, 66 Fla. 589, 64 So. 274; Harbeson Lumber Co. v. Anderson, 102 Fla. 731, 136 So. 557. There is nothing in this record to show that the jury rendering the verdict complained of was actuated by any improper motives. We think there is ample testimony in the record to sustain the findings of the jury as expressed by the verdict.

It is next contended that a departure from the essential requirements of law occurred when the Judge of the Civil Court of Record gave Charge No. 5 for the plaintiff, viz.:

'(5) The court instructs the jury that the law presumes that death was the result of an accident when nothing more is shown than that death was caused by a violent and external injury, and the character of the injury is consistent with the theory of accident. If the jury find from the evidence that Johnie Hines met his death from gunshot, and that the circumstances surrounding his death are consistent with a theory of it having been accidental, then your verdict must be for the Plaintiff.'

It is settled law in this Court that in passing upon a single instruction it should be considered in connection with other charges bearing on the subject, and if, when thus considered, the law appears to have been fairly presented to the jury, an assignment predicated upon the giving of such instruction must fail. See Lewis v. State, 55 Fla. 54, 45 So. 998. We cannot overlook the fact here in connection with this assignment that the trial court instructed the jury of its own volition and then gave instructions for the plaintiff and defendant bearing on this same subject.

The trial Court of his own volition charged the jury, viz.:

'The Court charges you that because the evidence establishes the fact that Johnie Needam Hines died from a self-inflicted pistol shot, you are not on that account to assume that the shot was intentionally self-inflicted. That is, you are not on that account to assume that the deceased was a suicide. Such is not the law. On the contrary, under the law there arises a presumption that a self-inflicted wound producing death was the result of an accident, rather than from a premeditated design to effect one's death. But this presumption may be overcome or rebutted by proof satisfactory to the jury that the act causing death was in fact intentionally committed. Then the presumption of accident disappears.

'Here you have a case where both parties admit or rather, they both agree, that the deceased came to his death as the result of a self-inflicted pistol bullet wound. This fact is also established by the evidence beyond any question. If this were all there is to the case, that is, proof of death by a pistol shot self-inflicted, nothing more, then your finding on that phase of the case would have to do for the Plaintiff, for, in a case of death, though self-inflicted, without any further proof of how the act took place or happened, showing it to have been intentional, a presumption would arise that the act was accidental.'

Charges given at the request of plaintiff:

'(1) The court instructs the jury that the burden of proof if upon the plaintiff to show by a preponderance of the evidence...