Supreme Lodge K.P. v. Lipscomb

• Decision Date: 13 November 1905
• Citation: 50 Fla. 406,39 So. 637
• Parties: SUPREME LODGE K. P. v. LIPSCOMB.
• Court: Florida Supreme Court

39 So. 637

50 Fla. 406

SUPREME LODGE K. P. v. LIPSCOMB.

Florida Supreme Court, Division A.

November 13, 1905

Error to Curcuit Court, Suwannee County; B. H. Palmer, Judge.

Action by Fannie E. Lipscomb against the Supreme Lodge Knights of Pythias. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Our statutes permitting amendments of pleadings are very liberal but the matter of allowing or refusing such amendments must rest largely within the sound judicial discretion of the trial court, as that court must determine whether or not the amendment asked for is 'necessary for the purpose of determining in the existing suit the real question in controversy between the parties,' and whether or not it has been 'duly applied for'; and an appellate court will not disturb the ruling of the trial court, either in granting or in denying such application, unless it is plainly made to appear that there has been an abuse of this judicial discretion.

Requested instructions charging upon the facts of the case are properly refused. To charge the jury otherwise than upon the law of the case would be violative of the express provisions of section 1088 of the Revised Statutes of 1892.

A party cannot predicate an assignment upon an instruction given to the jury, even though erroneous, where the instruction complained of was too favorable to the party complaining thereof and no injury could have resulted to him therefrom.

In an action upon a policy of life insurance, where one of defendant's pleas is to the effect that the insured came to his death in consequence of the violation by him of a criminal law of the state of Florida, the burden of proving the defensive matter contained in the plea is cast upon the defendant company, and it must establish such plea by at least a preponderance of the testimony.

It is unnecessary for the plaintiff in an action upon an insurance policy to anticipate defenses and negative them in his declaration, and, even though the plaintiff should do so, it does not shift the burden of proof, and it is still incumbent upon the defendant to prove defensive matter.

The denial of a motion for a continuance by the trial court will not be reversed by an appellate court, unless a palpable abuse of judicial discretion is clearly and affirmatively shown by the record.

Facts admitted by the pleadings need not be proved, and all the allegations in the declaration which are not denied by plea are admitted to be true.

Chapter 4173, p. 101, of the Laws of Florida of 1893, authorizing the recovery of reasonable attorney's fees against life and fire insurance companies in actions upon policies issued by them, is constitutional.

Chapter 4173, p. 101, of the Laws of Florida of 1893 is not repealed either directly or impliedly, by chapter 4380, p. 143, of the Laws of Florida of 1895.

Evidence examined, and found sufficient to support the verdict.

COUNSEL

Rivers H. Buford, for plaintiff in error.

Carter & McCollum, for defendant in error. Fanny E Lipscomb brought an action in the circuit court for Suwannee county against the Supreme Lodge Knights of Pythias, a corporation, upon a policy of insurance issued by the defendant to Frank M. Lipscomb, the husband of the plaintiff in the sum of $1,000. The declaration is rather prolix, setting forth in detail all the facts and circumstances. Condensing the allegations thereof, in substance, it alleges that Frank M. Lipscomb, on the 20th day of December, 1902, being a member of Section No. 5554 of the Endowment Rank Knights of Pythias and a member in good standing of a subordinate lodge of the order of Knights of Pythias, which rank and order were under the jurisdiction and control of the defendant, made an application to defendant, in compliance with its rules, for 'a certificate of contract of insurance,' and on the 20th day of January, 1903, the defendant issued its 'certificate or contract of insurance' for the sum of $1,000, a copy thereof being attached as an exhibit, wherein and whereby it promised to pay to the plaintiff, the beneficiary named therein, said sum, upon the death of the insured; the certificate, however, containing certain stipulations, conditions, and provisions, all of which the declaration fully sets out, as well as a compliance with each and every of them in detail. The declaration further alleges the death of the insured on the 1st day of February, 1903, whereby, under the terms and conditions of said certificate, the plaintiff as the beneficiary named therein became entitled to the sum of $1,000; that the defendant had due notice and satisfactory proof of the death and good standing of the insured, but refused and neglected to pay the same. The damages were laid at $1,500. By permission of the court the declaration was amended by inserting a claim for reasonable attorney's fees, as by statute provided.

To this declaration the defendant interposed the following pleas:

'Now comes the defendant, by its attorneys, W. H. Ellis and Rivers H. Buford, and for plea to the declaration filed by plaintiff herein says: First. Defendant admits that Frank M. Lipscomb was a member of the Endowment Rank of the Knights of Pythias, and that as such member certificate number 128,997 for the sum of one thousand dollars was duly issued to him on the 20th day of January, 1903; that after the issuance of said certificate, to wit, on the 1st day of February, the said Lipscomb died; and that proper proof of such death was submitted to the board of control, Endowment Rank of Knights of Pythias. But the defendant alleges that under and by the terms of contract sued on it was stipulated that the payment of said sum of one thousand dollars upon the death of said Lipscomb was based upon the declarations, representations, and agreements made in his application for such certificate, which application was made a part of said contract, which said payment was further conditioned upon the full compliance with the laws governing said Endowment Rank then and there in force or thereafter enacted by the Supreme Lodge Knights of Pythias, or by the board of control of said Endowment Rank; that in and by said application it was stipulated that, if the death of the said Lipscomb should be caused or superinduced in violation or attempted violation of any criminal law, the certificate issued to the said Lipscomb upon said application should be null and void; that at the time of the death of the said Lipscomb it was provided by the laws of the said Endowment Rank that 'if the death of any member of the Endowment Rank heretofore admitted into first, second, third, or fourth classes, or hereafter admitted, should result by suicide, whether sane or insane, voluntarily or involuntarily, or if the death is caused by the use of intoxicating liquors, or by the use of narcotics or opiates, or in consequence of a duel, or at the hands of justice, or in violation of or attempting to violate a criminal law, then the amount to be paid upon such member's certificate shall be a sum only in proportion to the whole amount of the certificate as the natural life expectancy is to the entire expectancy at the date of the admission to the Endowment Rank, the expectation of life based upon the American Experience Table of Mortality in force at the time of such death to govern; and defendant admits that it is indebted to the plaintiff in the sum of $2.50 and alleges that it has tendered the sum of $2.50 of lawful money of the United States to the plaintiff, and plaintiff failed and refused to accept the same, and now defendant tenders into court with this plea the said sum of $2.50, offering to confess judgment for such amount, and prays to be dismissed with its reasonable costs herein expended.

'Second. Defendant further alleges that said Lipscomb came to his death while in violation of a criminal law of the state of Florida, to wit, in making and committing an assault and battery upon the person of one Stripling, by striking, beating, bruising, wounding, and illtreating the said Stripling, contrary to the criminal law of the state of Florida.

'Now comes the defendant, and for further plea says: Third. That the death of Frank M. Lipscomb was caused or superinduced by his committing an act in violation of the criminal law of the state of Florida, to wit: That the said Lipscomb was the aggressor in making an assault upon one W. W. Wilder; that he assaulted the said Wilder with a pistol, and was killed by the said Wilder in repelling such attack.'

The plaintiff joined issue upon the third plea and filed the following replication to the first and second pleas:

'And now comes the plaintiff herein, by her attorneys, Ira J. Carter and McCollum & Sanford, and for replication to defendant's pleas, says: First. That plaintiff admits the first plea of defendant down to and including the word 'govern' in the seventh line of the second page of said first plea and denies that the defendant is indebted to the plaintiff in the sum of $2.50, but avers that the said defendant is indebted to her in a much larger sum, to wit, in the sum of $1,000, the full face of the policy issued to the plaintiff's said husband, the said Frank M. Lipscomb.

'Second. For replication to the second plea of defendant, plaintiff says that she denies and takes issue on the whole of the second plea of defendant filed herein.'

The case came on for trial at the fall term of said court, 1904, which resulted in a verdict and judgment for the plaintiff in the sum of $1,000 as principal, $83 as interest, and $200 as attorney's fees.

The defendant seeks to have this judgment reversed by writ of error returnable to the present term of this court. Such other facts as may be necessary will be stated...