Opinion
No. F-36.
June 11, 1964.
Appeal from the Circuit Court for Marion County, D.R. Smith, J.
Sturgis Ritter, Ocala, for appellant.
Chappell Dunn, George John Miller, E.R. Mills, Jr., William G. O'Neill, Ocala, and Melvin Orfinger, Daytona Beach, for appellees.
This cause was orally argued before the Court and the briefs and record on appeal have been read and given full consideration. In view of the conflicting evidence in the record, and the conflicting inferences which may be reasonably drawn therefrom, we are not persuaded that the chancellor erred as a matter of law in holding that the insured's daughter was not a resident of the insured's household at the critical period of time involved herein within the meaning and intent of the insurance policy which forms the basis of this action. Our opinion in this regard is largely controlled by the recent decision of the Supreme Court in the Florence M. Mickler guardianship case, which affirmed the decision rendered by this Court in the same case. In each of these decisions it was held that F.S. Section 744.11, F.S.A., which fixes the venue for the institution of guardianship proceedings and which provides that venue shall be in the county where "the incompetent resides," the quoted language shall be construed to mean the legal residence or domicile of the incompetent, and not the place where the incompetent may be living or residing.
In re Guardianship of Mickler, Fla. 1964, 163 So.2d 257.
In re Guardianship of Mickler, (Fla.App. 1963) 152 So.2d 205.
Appellant having failed to demonstrate reversible error, the decree hereby appealed is affirmed.
WIGGINTON, Acting C.J., and RAWLS, J., concur.
McNATT, Associate Judge, specially concurs.
On the prior appeal in this case, the "summary decree" was reversed because the Court held that there was an issue of fact (on equally reasonable and conflicting inferences to be drawn from the evidence) as to whether Mrs. Cone was "a resident of the same household" with Mrs. Edgerly within the meaning of the insurance policy involved. Glens Falls Insurance Company v. Edgerly (Fla.App.) 155 So.2d 649. On remand, the Chancellor found as a fact that Mrs. Cone was not "a resident of the same household." As the prior decision settled the proposition that there was an issue of fact for the Chancellor, his findings on the "conflicting evidence" and "conflicting inferences" should not be disturbed on a second appeal. 2 Fla.Jur. 795-802.
For this reason, I concur in the affirmance of the decree.