72 Fla. 467 | Fla. | 1916
—Mabel W. Hodges sued the Sovereign Camp of the Woodmen of the World, upon a beneficiary certificate of life insurance which the defendant had issued to John G. Plodges, husband of the plaintiff.
The declaration alleged that John G.'Hodges in February, 1913, being then a member in good standing of a subordinate lodge of the defendant made application for a “Beneficiary Certificate” of life insurance; that the defendant isssued the certificate and it was attached to and made a part of the declaration. It was alleged in the declaration that the certificate provided that “John G. Hodges should participate in its beneficiary fund to the amount of Two Thousand two hundred and fifty
The declaration contained a second count in which an additional sum was claimed as fees and compensation for the plaintiff’s attorney in prosecuting the suit against the defendant. The second count however seems to have been abandoned by the plaintiff below.
The “Beneficiary Certificate” which was issued to “J. G. Hodges” in the sum of $3,000.00 and which was attached to the declaration and made a part of it, contains the following clause: “This Certificate issued by the Sovereign Camp of the Woodmen of the World by its authority, Witnesseth, That Sovereign John G. Hodges a member of Browning Camp No. 47 located at Live Oak, State of Florida, is, while in good standing as a member of this Fraternity, entitled to participate in its Beneficiary Fund to the amount of One thousand five hundred dollars
“This Certificate is issued and accepted subject to all of the conditions on the back hereof and this certificate together with the Articles of Incorporation, the Constitution and Laws of Sovereign Camp of the AVoodmen of the AVorld and the application for membership and medical examination shall constitute the contract between the Order and the member, and any changes, additions or amendments to the Articles of Incorporation, Constitution and Laws hereafter made or enacted shall bind the member herein named and his beneficiaries, and shall govern and control the contract in all respects the same as though such changes, additions or amendments had been made prior thereto and were in force at the time of his application for membership, also subject to the by-laws of the Camp of which he is a member.”
The defendant below demurred to the declaration, the grounds of which are given in full, and are as follows:
“1. The allegations, or statements, contained in the cause of action, which is made a part of plaintiff’s declaration; are repugnant to and inconsistent with the allegations in the declaration.
“2. The declaration alleges that the defendant promised to pay to the plaintiff the sum of Two Thousand Two Hundred and Fifty ($2,250.00) Dollars should the death of John G. Hodges mentioned and described in the said declaration, occur during the second year of his said membership; while the said cause of action provides that the said John G. Hodges is, while in good standing as a member of the Woodmen of the World, entitled to participate in its beneficiary fund to the amount of Two Thousand Two Hundred and Fifty ($2,250.00) Dollars, should his death occur during the second year of his membership, payable at his death to the plaintiff by the defendant.
“3. Although the said cause of action contains a certain provision in the following words: ‘This certificate is issued and accepted subject to all the conditions on the back hereof and this certificate together with the Articles of Incorporation, the Constitution and Laws of Sovereign Camp of the Woodmen of the World and the application for membership and medical examination shall constitute the contract between the Order and the member, and any changes, additions or amendments to the Articles of Incorporation, Constitution and Laws here
“4. ' The declaration does not allege that there is a sufficient amount of money in the beneficiary fund of the defendant with which to pay plaintiff’s claim.”
This demurrer was overruled, and such action of the court is assigned as constituting error.
The plaintiff in error, by its counsel, contends that the following allegation in the declaration, viz., that the certificate provided that “John G. Hodges should participate in its beneficiary fund to the amount of two thousand two hundred and fifty dollars should his death occur during the second year of his membership and thereby the defendant promised it would pay to plaintiff, the beneficiary named therein, the said sum of two thousand two hundred and fifty dollars,” etc., is repugnant to the clauses contained in the certificate which provide that: John G. Hodges “while in good standing as a member of this fraternity” is “entitled to participate in its beneficiary fund” to the amount of Two thousand two hundred and fifty dollars should his death occur during the second year of his membership, and that the payment of the Certificate “shall be based upon an assessment on the entire beneficiary membership of this order in good standing; the full amount when so paid in no case to exceed the amount of one such assessment; nor shall any portion so paid be in excess of a like proportion of a single assessment on the entire beneficiary membership at that time,” etc.
A count in a declaration is held bad for repugnance when it contains allegations in relation to matters of substance which neutralize each other, in which, case the count would fail to state a cause of action. Jacksonville, T. & K. W. Ry. Co. v. Thompson, 34 Fla. 346, 16 South. Rep. 282; Hoopes v. Crane, 56 Fla. 395 47 South. Rep. 992; Florida Cent. & P. R. Co. v. Ashmore, 43 Fla. 272, 32 South. Rep. 832; State v. Seaboard Air Line Ry., 56 Fla. 670, 47 South. Rep. 986. The last case was one in which it was held that the rule would apply where statements in a cause of action attached to and by apt words made a part of the declaration, are repugnant to and inconsistent with the allegations in the declaration.
The position taken by counsel for plaintiff in error as to the effect of repugnancy in a declaration is undeniably settled by a long line of decisions by this court. The only question therefore on this point is whether the provisions referred to in the Certificate are inconsistent and repugnant to the allegations in the declarations.
The case of Ring v. United States Life & Accident
We think the allegations of the declaration that John G. Hodges at the date of his death “had paid all dues and assessments levied or charged against him during his lifetime and that he had fully complied with all the stipulations, conditions and provisions of the Constitution and by-law's of the said defendant and the said contract of insurance on his part to be kept and performed,” are sufficient under our statute permitting the averment, by either part}'- in an action, of performance of conditions precedent generally. Sec. 1436 Gen. Stats, of 1906, Florida Compiled Laws 1914; Tillis v. Liverpool & L. & G. Ins. Co., 46 Fla. 268, 35 South. Rep. 171, 110 Am. St. Rep. 89; Supreme Lodge K. of P. v. Lipscomb, 50 Fla. 406, 39 South Rep. 637. This point however was
The defendant below interposed three pleas to the declaration. The first two presented the issue that the deceased member, John G. Hodges, came to- his death by his own hand, or his own act. The third plea merely denied that the defendant had refused to- pay a hundred dollars for a monument to the memory of the deceased. No point is made on this plea, however, it seems not to have 'been considered by either party in the case.
Issue was joined upon the pleas and the case went to trial which resulted in a verdict for the plaintiff. A motion was submitted in behalf of the defendant to- set aside the verdict and grant a new trial upon the ground that the verdict was contrary to the evidence and the law. This motion was overruled and such ruling is assigned as error. The bill of exceptions according to the certificate of the Circuit Judge who tried the case contains all the evidence introduced at the trial. Whether John G. Hodges committed suicide was the question presented by the first and second pleas and that the burden was upon the defendant to establish that fact is conceded by counsel for both plaintiff and defendant. What measure or degree of proof is necessary to legally establish
In the case of Schultz v. Pacific Insurance Co., 14 Fla. 73, where an action was brought to recover the amount of an insurance policy upon the freight of a barque on a voyage from. Pensacola to England, there was a plea that the vessel was designedly cast away. The trial court charged the jury on that point as follows: “In determining this question you must be satisfied beyond a reasonable doubt that the Master did. design edly cast the vessel away before you can find against him on this point." Mr. Justice Westcott who delivered the opinion of this court said, in sustaining- the charge : “The decisions upon the precise point, therefore establish the rule to be, that the character of the fact to be proved, and not the position of the party determines the degree of proof to be required.” The reason upon which he based the rule was that the act charged was a crime, and the fact to be proved whether its proof be in a civil or criminal case is the same and, the same amount of proof which exists in one case must exist in the other. The Schultz case was followed in Williams v. Dickenson, 28 Fla. 90, 9 South. Rep. 847. In that case Dickenson sued Williams in an action of trespass for procuring another to' burn the former’s gin house. The trial court charged the jury that in determining- the issues they were not to be governed by the rule which obtains in criminal cases, viz, that they must be satisfied beyond a reasonable doubt-that the defendant did. the things complained of, ■but they should find for the plaintiff if they believed from a “preponderance of the weight of the evidence” that the defendant did the things complained of. This ■court through Mr. Justice Taylor, said: “Were the
The value of circumstantial evidence consists in the conclusive nature and tendency of the circumstances relied upon to establish any controverted fact. This lan
The evidence shows that Mr. Hodges, on September 18, 1914, was employed in the Express Office at Live Oak; he had a wife and one or more children who- were on a visit to the wife’s parents at Lake City.' On that day Mr. Hodges.-was confined to- his room on account of sickness. During the day he was visited by one or more friends or acquaintances, to- one of whom he gave a sum of money with the request that it be sent to his wife at Lake City. There was no evidence to show unhap-py relations with his family, nor that he was mentally depressed, nor physically ill to- any serious degree, nor financially embarrassed. There was nothing to show any fear of social or business disgrace, nor that he contemplated self-destruction as a means of escape from impending embarrassment of any character. He was last seen alive in his bedroom at about three or four o’clock in the afternoon by one who called to enquire as to- his friend’s health. On the morning of September 19th, the day following, at about 8 o’clock, a man who with his wife occupied apartments across the hall in the same building, after having answered a telephone call for Mr. Hodges, went to his door leading from, the hall into his room for the purpose of calling him, finding the door locked, he elevated himself to the level of the transom over the door by means of a chair, and looking-through the transom, discovered Mr. Hodges lying upon his- bed dead. The man who made this discovery sun> moned others to his assistance and upon their arrival,
The theory of the defense seems to have been, that Mr. Hodges committed the act of self-destruction by firing the bullet into his own brain and to accomplish this, he sat on the edge of the bed near the hall door, and looking into a hand mirror which he held in his right hand to' enable him to see the exact spot on his head at which to place the pistol, fired the weapon into, his left temple. If this theory is true then the shot must have been fired between 3 :3o or 5 o’clock p. m. September 18th, and, 6 o’clock p. m. of the same day. Because at the former hour I. K. Watson and W. B. Lewis, who lived in the same house with Hodges were with him and at 4 or 5 o’clock p. m., Frank Weiss was with him, and at about the last named hour, 6 o’clock p. m., Mr. Lewis and his wife returned home, turned on the lights on entering the house and noticed that there was no light in Mr. Hodges’ room. We think, however, that the jury was fully justified in believing from the evidence that the bullet which killed Mr. Hodges entered his head on the right side just above the right ear and came out at the left temple, and'was fired at about 11 o’clock p. m., and was the pistol shot heard by Mr. Hineley at that hour. If those facts are true the}'- are utterly inconsistent with any reasonable conclusion of death by suicide. It is reasonable to say that if Mr. Hodges fired the shot, he fell immediately where he was sitting; that was on his bed. Lying where he fell how could his feet have become splotched with blood,? How is the blood stain on the carpet accounted for? Why were there no powder stains nor cauterization of the wound in the left temple? Why was that wound larger than the other, and the tissue torn and everted? While the 'wound on the
We have discussed the evidence at some length and devoted to it more time and space than the case perhaps required, but we did so. because of the undeniably strong-probability which the evidence on first reading raises that the deceased destroyed his own life, yet when carefully considered., is found to contain facts which are clearly established, at least which the jury were fully justified in believing to be true, and which are seen at once to be irreconcilably in conflict and utterly inconsistent with the theory of self-destruction. So the jury believed and found accordingly, and there is no- authority in law nor precedent for disturbing their verdict.
Taylor, C. J., and Shackleford, Cockrell and Whitfield, JJ., concur.