Equitable Life Assurance Society of United States v. Grubbs

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 So. 327. The law as enunciated in that opinion is applicable here.

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.