Voelker v. Combined Ins. Co. of America

• Decision Date: 25 June 1954
• Citation: 73 So.2d 403
• Parties: VOELKER v. COMBINED INS. CO. OF AMERICA. VOELKER v. LIFE & CASUALTY INS. CO. OF TENNESSEE.
• Court: Florida Supreme Court

Page 403

73 So.2d 403

VOELKER v. COMBINED INS. CO. OF AMERICA.

VOELKER v. LIFE & CASUALTY INS. CO. OF TENNESSEE.

Supreme Court of Florida, Division B.

June 25, 1954.

Mizell & Carmichael, West Palm Beach, for appellant.

Earnest, Lewis, Smith & Jones, West Palm Beach, for appellee.

HOBSON, Justice.

These cases were consolidated for trial in the circuit court and are likewise consolidated upon appeal. The suit against Combined Insurance Company of America is a common law action predicated upon two policies of insurance which were issued to Edward H. Voelker on April 4, 1946. The suit against Life and Casualty Insurance Company of Tennessee is upon an insurance policy issued by that company to Edward H. Voelker during his lifetime.

Although the evidence in each case is the same, we are forced, because of a difference in language used in the policies issued by the two insurance companies, to separate this opinion into two divisions, the first of which will deal with the case of Voelker v. Combined Insurance Company of America and the second with the case of Voelker v. Life and Casualty Insurance Company of Tennessee.

Edward H. Voelker left West Palm Beach, Florida, at approximately 10:30 or 11:00 P.M., on the 13th day of February, 1952, for a trip to Dunedin, Florida. He was driving his own automobile when he departed from West Palm Beach and while on this trip he met his death at a point near Six Mile Bridge on State Road 80, in Palm Beach County. At about 1:20 A.M., on February 14, 1952, one C. S. Clements and his wife discovered the automobile driven by Voelker, which evidently had been involved in some type of accident, on the south side of the canal that borders State Road 80.

Since there were no eyewitnesses to the ostensible accident which either caused or immediately preceded Edward Voelker's death, the testimony is composed entirely of circumstantial evidence. According to the witnesses who observed the automobile as well as the scene of the tragedy, the physical facts indicated that Voelker's car, which was a 1941 black Pontiac, had proceeded to cross Six Mile Bridge, thereafter obviously had made a sharp curve to the left and had run down the bank before coming to rest on the edge of the canal and in the position heretofore outlined. The left front tire of the car contained about one half its normal air capacity. The front and rear fenders on the left side of the car were scraped and battered. The back fender which 'looked like it had been sideswiped' was bent in slightly 'with some of what looked like grey paint' on it. The door handle on the left front door was broken down, the lock was jammed, the left front headlight was broken and some glass which matched the glass of this headlight was found near the end of the bridge. The ignition switch was turned off, and the light switch, which was of the pull and push button type, was also in the 'off' position. The right front door of the automobile was open wide and the car was out of gear. About twenty feet from the end of the bridge the witness F. O. Cole found a headlight rim, with grey paint upon it, which had been run over and looked 'like it came off a Model A Ford.'

Mr. Clements, who, with his wife, discovered the wrecked car, reported the matter to the Highway Patrol. Patrolman Joseph P. Bertrand made an investigation and found Voelker's body floating in the canal about eight feet in front of the car. He caused the automobile to be towed into Belle Glade, Florida. Constable Whitlock also made an investigation at the scene of the accident and ordered the body released to the Berry Funeral Home, of Belle Glade and Pahokee, Florida. Voelker's body was immediately embalmed and later delivered to the Scobee-Vogel Funeral Home in West Palm Beach. No witness who examined or observed the body of Edward Voelker found or saw any marks or abrasions thereon, or, indeed, any other indications of external injury, and Voelker's eyeglasses were still in place.

These cases were tried before a jury which rendered verdicts in favor of the appellant. The appeal in each case is from the final judgment entered by the trial judge upon motion of counsel for appellee for a directed verdict after entry of the original final judgment rendered pursuant to the jury's verdict.

Each of the policies issued by the Combined Insurance Company of America insured Voelker 'against loss caused by bodily injuries which are not caused or contributed to by disease, and are effected exclusively by accidental means'. Section B of each policy provides: 'If Such Injuries shall be sustained by the Insured, and shall within thirty days from the date of the accident causing Such Injuries be the sole cause of loss of life by the Insured, and provided Such Injuries to the Insured shall occur: * * * While actually driving or riding in any automobile, * * * the Company will pay the sum of $500.00.' (Italics supplied.)

As aforestated, all of the evidence relied upon by appellant is circumstantial in character. In the comparatively recent case of City of Jacksonville v. Waldrep, Fla., 63 So.2d 768, we re-affirmed the rule that when circumstantial evidence is relied upon in a civil case as a method of proof any reasonable inference deducible therefrom which would authorize recovery must outweigh each and every contrary reasonable inference if the plaintiff is to prevail. We quote from our opinion in the case of King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858, 859: 'Where circumstantial evidence is relied on in a civil case to prove an essential fact or circumstance essential to recovery, the rule is that the particular inference of the existence of the fact relied on as arising from the circumstances established by the evidence adduced, shall outweigh all contrary inferences to such extent as to amount to a preponderance of all of the reasonable inferences that might be drawn from the same circumstances.' See Fireman's Fund Indemnity Co. v. Perry, 149 Fla. 410, 5 So.2d 862, and cases cited in our opinion in City of Jacksonville v. Waldrep, supra.

For the sake of emphasis we again call attention to the fact that in the cases of Fireman's Fund Indemnity Co. v. Perry, supra, and City of Jacksonville v. Waldrep, supra, we receded from our opinion in the case of Florida East Coast R. Co. v. Acheson, 102 Fla. 15, 135 So. 551, 137 So. 695, 140 So. 467, wherein we had invoked in a civil case the rule with reference to circumstantial evidence which prevails in criminal cases. We also state anew that in this jurisdiction the rule in civil cases when circumstantial evidence alone is relied upon differs from and is less stringent than the rule which governs in criminal cases.

The fact that circumstantial evidence is relied upon in a civil action at law does not alter either the rule that it is solely within the province of the jury to evaluate or weigh the evidence or that the burden of establishing a right of recovery by a preponderance of the evidence is upon the plaintiff. Consequently, in such a case if the circumstances established by the evidence be susceptible of a reasonable inference or inferences...