Lee v. Sovereign Camp, W.O.w.
| Decision Date | 08 January 1934 |
| Citation | 152 So. 17,113 Fla. 472 |
| Court | Florida Supreme Court |
| Parties | LEE v. SOVEREIGN CAMP, W. O. W. |
Action by Rebecca Lee against the Sovereign Camp of the Woodmen of the World, a corporation. To review a judgment of nonsuit plaintiff brings error.
Reversed and remanded. Appeal from Circuit Court, Washington County D. J. Jones, judge.
John H Carter and John H. Carter, Jr., both of Marianna, for plaintiff in error.
James M. Daniel, of Chipley, for defendant in error.
During the progress of a trial at law the plaintiff tendered a surrejoinder to defendant's rejoinder to plaintiff's replication to a 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 contention 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. Enight, 104 Fla. 16, 139 So. 582, 143 So. 441.
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 going 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....
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...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......
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...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 Appellant's second point has been decided adversely to him in Gord......
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