REBECCA LEE
v.
SOVEREIGN CAMP, W. O. W.
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Rebecca Lee sought recovery on a Woodman of the World benefit policy. The trial court rejected her surrejoinder (a procedural pleading), leading to a judgment of non suit. The Florida Supreme Court reversed, holding that the surrejoinder presented valid legal matter and should have been allowed to proceed to ensure a fair trial on the merits.
The surrejoinder presented matter sufficient in law to constitute a good reply to defendant's rejoinder and should have been permitted to be filed to promote justice through a fair trial of the real issues. The estoppel allegations—that defendant retained premiums while knowing of the late payment and continued treating the certificate as in force—constituted valid defensive matter not subject to demurrer.
“We are of the opinion that the surrejoinder tendered during the progress of the trial presented matter sufficient in law to constitute a good reply to defendant's rejoinder to plaintiff's replication to defendant's first plea and that it should have been permitted to be filed in order to promote the administration of justice through a fair trial of the real issues in the case.”
Establishes the core holding that the surrejoinder was legally sufficient and should have been accepted.
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Join FLexlaw to unlock all legal intelligenceLee was attempting to recover on a benefit certificate from Sovereign Camp, W.O.W. (a mutual benefit society). The defendant asserted defensive provis…
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During the progress of a trial at law the plaintiff tendered a surrejoinder to defendant’s rejoinder *473tb plaintiff’s replication to defendant’s plea interposed to plaintiff’s declaration seeking recovery on a Woodman of the World benefit policy. The object of the surrejoinder was to set up a legal bar against certain matters that had been pleaded in defendant’s rejoinder to plaintiff’s replication to defendant’s first plea.
At all times during the trial it is obvious that plaintiff below was attempting to recover against defendant on the theory that defendant mutual benefit society was not in a position, under the facts and circumstances of the case, to plead certain defensive provisions of its mutual benefit certificate, in bar or preclusion of plaintiff’s .claim for recovery. The real confention of plaintiff on this point was at no time materially changed. But from time to time the plaintiff’s manner of pleading such matter did change, in order to accommodate plaintiff’s attempt to state her case to the views of the court deciding the law of the controversy, as evidenced by several successive rulings on the pleadings, most of which were adverse to plaintiff below.
We are of the opinion that the surrejoinder tendered during the progress of the trial presented matter sufficient in law to constitute a good reply to defendant’s rejoinder to plaintiff’s replication to defendant’s first plea and that it should have been permitted to be filed in order to promote the administration of justice through a fair trial of the real issues in the case. Edwards v. Knight, 104 Fla. 16, 139 Sou. Rep. 582.
If defendant conceived itself likely to be prejudiced by such filing, it was of course entitled to move for and to have granted a mistrial and continuance of the case, in order to further prepare itself, upon its showing as a basis therefor that it would sustain some disadvantage or detriment in *474going on with the trial in the light of the new pleading, without further preparation on its part.
' In this suit it appears that plaintiff had proceeded at all times with reasonable diligence in endeavoring to perfect the sufficiency of her attempted surrejoinder as a proper reply in substance. The ends of justice demand that she shall not suffer the loss of her right to a fair trial on the merits of her claim through a rejection of her pleading which appears to have been properly tendered at the trial for the purpose of presenting in the record, in appropriate form, a material part of the substance of her claim- for recovery.
• The rejected surrejoinder sets up in substance that with knowledge of the time and circumstance of the actual payment of the deceased’s October, 1928, assessment in November out of time, and not in accordance with the requirements of the exact terms of the policy, that the defendant with full knowledge of that fact, nevertheless still retained all amounts paid in, and afterward proceeded to treat the benefit certificate as still in force, at the time of deceased’s illness and death, whereby it had become estopped in law to claim the benefit of the defensive provisions of its certificates, as pleaded in its plea and rejoinder.
The surrejoinder presented a good matter of reply to the rejoinder and was not demurrable as claimed by defendant when it insisted that it be rejected. See principles stated in Industrial Life & Health Ins. Co. v. Cofield, 110 Fla. 315, 148 Sou. Rep. 549.
The other propositions of pleading argued by plaintiff in error have not been considered, oh this writ of error, because not involved in the rulings of the circuit court “on the trial” of this case, which is here solely on a writ of error taken to a judgment of non suit, and not final judgment. *475See City of Jacksonville v. Shaffer, 107 Fla. 367, 144 Sou. Rep. 888.
Judgment of non suit reversed and cause remanded for further proceedings not inconsistent with this opinion.
Ellis and Terrell, J. J., concur.
Whitfield, P. J., and Brown, J., concur in the opinion and judgment.
Buford, J., disqualified.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Dunn v. Campbell, 166 So. 2d 217 (Fla. 2d DCA 1964)…to pleadings citing Rule 1.15(e), R.C.P. 30 F.S.A.1; Hart Properties, Inc. v. Slack, Fla.App.1962, 145 So. 2d 285, reversed on another point, Fla.1963, 159 So. 2d 236; Raggs v. Gouse, Fla.App.1963, 156 So. 2d 882; Lee v. Soverign Camp. W.O.W., 1934, 113 Fla. 472, 152 So. 17. In the case of E. O. Painter Fertilizer Company v. Foss, 1932, 107 Fla. 464, 469, 145 So. 253, 255, the Supreme Court said inter alia: “ * * * the right to amend is substantial, and a denial of such right has been held to warrant the h…
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Frewer v. City OF Miami Beach, 207 So. 2d 312 (Fla. 3d DCA 1968)…held to run from the date of the accrual of the action but from some later date. Appellant’s first point must be decided adversely because of the wide discretion in the trial court as to the allowance of amendments. Lee v. Sovereign Camp., W.O.W., 113 Fla. 472, 152 So. 17 (1934); see also McSwiggan v. Edson, Fla.1966, 186 So. 2d 13. Appellant’s second point has been decided adversely to him in Gordon v. City of Belle Glade, Fla.App.1961, 132 So. 2d 449. Affirmed.…
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Sovereign Camp of the Woodmen of the World v. Lee, 125 Fla. 736 (Fla. 1936)…Per Curiam. — This is the second appearance of this case here. Lee v. Sovereign Camp W. O. W., 113 Fla. 472, 152 So. 17. The latter writ of error, being to a nonsuit, resulted in a reversal because the trial court refused to permit the plaintiff to file a surrejoinder during the trial to raise the issue of estoppel. [*737] In reversing the judgment we hel…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The City of Jacksonville v. Shaffer, 107 Fla. 367 (Fla. 1932)
- Indus. Life & Health Ins. Co. v. Cofield, 110 Fla. 315 (Fla. 1933)
- Edwards v. Knight, 104 Fla. 16 (Fla. 1932)
- Adams v. Wolf, 104 Fla. 142 (Fla. 1932)