THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, A CORPORATION,
v.
HENRY GRUBBS
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An insurance company challenged a judgment for disability benefits under a group policy, arguing that evidence of tuberculosis presented at trial varied from the complaint's allegation of larynx and bronchial disorders. The Florida Supreme Court affirmed the judgment, finding no reversible error because the evidence was admitted without objection and the defendant had opportunity to cross-examine on the issue.
The judgment should be affirmed. No reversible error occurred from admitting testimony regarding tuberculosis because the evidence was admitted without objection, the defendant had opportunity to cross-examine regarding it, and the alleged cause of disability and its extent were adequately established by the evidence.
“The law as enunciated in that opinion is applicable here.”
The court indicated that precedent from the Wiggins case controlled the analysis of the similar insurance policy dispute.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff sued The Equitable Life Assurance Society for benefits under a group insurance policy covering total and permanent disability. The compl…
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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.
*211In 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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Citator
Authorities Cited
- Equitable Life Assurance Soc'y of the United States v. Wiggins, 115 Fla. 136 (Fla. 1934)