Equitable Life Assurance Society of United States v. Grubbs

Supreme Court of Florida

Equitable Life Assurance Society of United States v. Grubbs

158 So. 879, 118 Fla. 210, 1935 Fla. LEXIS 1685

DecidedJanuary 21, 1935

StatusPublished

This text of 158 So. 879 (Equitable Life Assurance Society of United States v. Grubbs) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Equitable Life Assurance Society of United States v. Grubbs, 158 So. 879, 118 Fla. 210, 1935 Fla. LEXIS 1685 (Fla. 1935).

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Opinion

Per Curiam.

This case comes before us to review a judgment against the plaintiff in error on a group of insurance policy providing indemnity, amongst other things, for total and permanent disability. The policy is like the one, if not of the same group, which was involved in the case of The Equitable Life Assurance Society of the United States, a Corporation, v. Randolph Wiggins, 115 Fla. 136, 155 Sou. 327. The law as enunciated in that opinion is applicable here.

*211 In addition to contentions which were presented in the Wiggins case, supra, it is here contended that because the declaration alleged the injury to have been “a disorder of the larynx, bronchial tubes and adjacent parts,” while the evidence showed in addition to these infirmities the plaintiff was probably afflicted with tuberculosis, a variance occurred between the allegata and probata. It is also contended that the evidence as to the probable infirmity of tuberculosis existing was a surprise and the defendant was not prepared to meet proof of that sort.

The record shows that this evidence went into the record without objection on the part of the defendant and further shows that the defendant elicited quite a bit of proof of this character by cross examination. This, taken in connection with the fact the cause of disability as alleged in the declaration and the extent of the disability from such causes were adequately established by the evidence brings us to the conclusion that no reversible error occurred by reason of the admitting of this testimony on the trial.

On authority of the opinion and judgment in the case of The Equitable Life Assurance Society of the United States v. Wiggins, supra, and for the further reason above stated, the judgment should be affirmed. It is so ordered.

Affirmed.

Ellis, P. J., and Terrell and Buford, J. J., concur. Whitfield, C. J., concurs in the opinion and judgment.

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Per Curiam.

This case comes before us to review a judgment against the plaintiff in error on a group of insurance policy providing indemnity, amongst other things, for total and permanent disability. The policy is like the one, if not of the same group, which was involved in the case of The Equitable Life Assurance Society of the United States, a Corporation, v. Randolph Wiggins, 115 Fla. 136, 155 Sou. 327. The law as enunciated in that opinion is applicable here.

*211 In addition to contentions which were presented in the Wiggins case, supra, it is here contended that because the declaration alleged the injury to have been “a disorder of the larynx, bronchial tubes and adjacent parts,” while the evidence showed in addition to these infirmities the plaintiff was probably afflicted with tuberculosis, a variance occurred between the allegata and probata. It is also contended that the evidence as to the probable infirmity of tuberculosis existing was a surprise and the defendant was not prepared to meet proof of that sort.

The record shows that this evidence went into the record without objection on the part of the defendant and further shows that the defendant elicited quite a bit of proof of this character by cross examination. This, taken in connection with the fact the cause of disability as alleged in the declaration and the extent of the disability from such causes were adequately established by the evidence brings us to the conclusion that no reversible error occurred by reason of the admitting of this testimony on the trial.

On authority of the opinion and judgment in the case of The Equitable Life Assurance Society of the United States v. Wiggins, supra, and for the further reason above stated, the judgment should be affirmed. It is so ordered.

Affirmed.

Ellis, P. J., and Terrell and Buford, J. J., concur. Whitfield, C. J., concurs in the opinion and judgment.

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Bluebook (online)

158 So. 879, 118 Fla. 210, 1935 Fla. LEXIS 1685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equitable-life-assurance-society-of-united-states-v-grubbs-fla-1935.

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