Sovereign Camp, W. O. W. v. Lee

• Decision Date: 23 September 1936
• Citation: 125 Fla. 736,171 So. 526
• Parties: SOVEREIGN CAMP, W. O. W. v. LEE.
• Court: Florida Supreme Court

171 So. 526

125 Fla. 736

SOVEREIGN CAMP, W. O. W. v. LEE.

Florida Supreme Court

September 23, 1936

Rehearing Denied Jan. 7, 1937.

Error to Circuit Court, Washington County; D. J. Jones, Judge.

Action by Rebecca Lee against the Sovereign Camp of the Woodmen of the World. To review an adverse judgment, defendant brings error.

Affirmed.

COUNSEL

James N. Daniel, of Chipley, for plaintiff in error.

John H Carter and John H. Carter, Jr., both of Marianna, for defendant in error.

OPINION

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.

In reversing the judgment we held 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 be permitted to be filed in order to promote the administration of justice through a fair trial of the real issues in case. Edwards v. Knight, 104 Fla. 16, 139 So. 582, 143 So. 441.

The case was reversed for further proceedings and the surrejoinder was filed. It is as follows:

'That after the death of the said Henry Lee and notice thereof received by the defendant, the defendant with full knowledge that said October assessment had been paid on November 23 as aforesaid, and that said Henry Lee had died of ill health within thirty days of such payment, furnished the plaintiff the usual printed forms for making proof of death, and required her to fill out one and sign it giving facts concerning the illness and death of said Henry Lee and required her to furnish a physician's certificate of said illness and death, and put the plaintiff to expense and time in furnishing said proofs of death, and of her claim therefor, all of which she did, and furnished same to the defendant; and defendant at such time and with the knowledge of said Henry Lee's illness and death within thirty days from the payment of said October assessment did not claim a forfeiture of said benefit certificate nor offer to return or refund said October assessment. Wherefore, plaintiff says that the defendant is now estopped from pleading the invalidity of the benefit certificate sued on, upon the grounds set forth in said rejoinder.'

The plaintiff filed rebutters to the surrejoinder, one of which was a joinder of issue and the other was as follows:

'That the defendant furnished forms for proofs of death for the purpose of enabling plaintiff to make proof of the death of the said Henry Lee if she desired to do so; that the said forms had printed upon their face these words:

"The furnishing of these blanks by the Association on which to make proof of claim shall not be an acknowledgment of any liability of said Association.'

'That the plaintiff received and accepted these forms with said notice printed thereon and executed the said forms of her own free will and accord and without any demand or compulsion on the part of the defendant and submitted them to the defendant voluntarily in support of her claim for death benefit under the certificate sued on in the declaration herein; that the completed proofs of death were received by defendant on or about February 19, 1929, and thereupon the defendant made an investigation of the facts pertinent to the said claim and rejected same and so notified the plaintiff on or about April 11, 1929, and mailed to her defendant's refunding check for $4.18 payable to her order covering the October and November, 1928, assessments.'

Issue was joined on the rebutter and the case went to trial. The question raised by the pleadings was whether or not the defendant was estopped from asserting the termination and invalidity of certificate or policy of insurance sued on.

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