50 Fla. 406 | Fla. | 1905
(after stating the facts). Eighteen errors are assigned, several of which, however, are either expressly or impliedly abandoned and, following our established practice, we shall consider only such assignments as are argued here.
The first assignment is that “the court erred in refusing to grant defendant to amend defendant’s first plea by striking out the first seven lines thereof.”
The bill of exceptions discloses that after the trial of the case had begun and the plaintiff had introduced a part of her evidence the defendant asked leave of the court to amend its first plea by striking out the first seven lines thereof, which motion was denied and an exception to the ■ ruling duly noted. The seven lines so sought to be stricken embraced the following:
“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 128997 for the sum of one thousand dollars was duly issued to him on the 20th day of January, 1908; that after the issuance of said certificate, to-wit: On the first day of February, the said Lipscomb died and the proper proof of such death was submitted to the board of control Endowment Rank Knights of Pythias.”
The plea of which these words formed a part was filed on the fourth day of January, 1904, replication was filed thereto on the 7th day of March, 1904, and yet not until the 14th day of November following, after the case had come on for trial and plaintiff had introduced part of her
The third and fifth assignments are based upon the refusal of the court to give special charges' Nos. 5 and 7a asked for by the defendant. An examination of these charges discloses that each was objectionable upon several grounds, a common ground being that they were violative of section 1088 of the Revised Statutes of 1892 in that they charged upon the facts. Southern Pine-Co. of Georgia v. Powell, 48 Fla. 154, 37 South. Rep. 570, and authorities therein cited.
The sixth assignment is predicated upon the giving of the following instruction by the court of its own motion:
*414 “It devolves upon the plaintiff to prove by a preponderance of the evidence in this case that the deceased, Frank M. Lipscomb, did not come to his death while in an act in violation of or in an attempt to violate a criminal law of the State or Federal Government, and, if the plaintiff fails to prove such fact by a preponderance of the evidence, you should find for the defendant.”
This charge was entirely too favorable to defendant, and, though erroneous in that it imposed a duty upon plaintiff which the law did not cast, defendant certainly has no cause of complaint. Bacon v. Green, 36 Fla. 325, text 345, 18 South. Rep. 870. Murray v. New York Life Ins. Co., 85 N. Y. 236, is directly in point. The policy in that case, provided that if the insured should die in consequence of the violation of any law the policy should be void; the complaint, corresponding to our declaration, filed therein alleged that the death was not caused by the breaking of any of the conditions of the policy, the answer filed therein denied this allegation and averred that the insured died in consequence of a violation by him of the State law. It was held in the opinion rendered therein that the allegation in the complaint that the death of the insured was not caused by the breaking of any of the conditions of the policy was not essential to the cause of action and was an unnecessary allegation, yet, even though so alleged, plaintiff could not be required to prove it, that the defendant, having denied this allegation and set up in its answer the fact that the insured came to his death in consequence of the violation by him of the laws of New York, 'had the burden cast on it of proving said defensive matter by a preponderance of the evidence. This cited case is instructive in the instant case upon several points. Also see 5 Amer. & Eng. Ency. of Laws (2nd ed.) 30; 2 Abbott’s Trial Brief, Pleadings (2nd ed.) 902,
The seventh assignment is that “the verdict is contrary to law,” and the eighth is that “the verdict is contrary to the evidence.” We shall pass these assignments until we reach the eighteenth and last assignment, which is based upon the denial of the motion for a new trial.
The thirteenth assignment is based upon the denial by the court of the defendant’s motion for a continuance.An examination of this motion and of the accompanying affidavit discloses that some of the necessary requirements of an application for a continuance, as laid down by this court in numerous decisions, are wanting. Sea Harrell v. Durrance, 9 Fla. 490; Green v. King, 17 Fla. 452; Sanford v. Cloud, 17 Fla. 532; Livingston v. Cooper, 22 Fla. 292; Reynolds v. Smith, 49 Fla. 217 38 South. Rep. 903. As we said in Jones v. State, 44 Fla. 74, 32 South. Rep. 793, “Denial of a motion for a continuance will not be reversed by an appellate court unless there has been a palpable abuse of discretion clearly and affirmatively shown by the record.”
The fourteenth, fifteenth and sixteenth assignments are based upon the overruling of the defendant’s objections to the introduction in evidence of the certificate or policy of insurance which formed the basis of the action. We are of the opinion that there is no merit in these assignments. The pleas of the defendant expressly admit that the defendant insured the life of Frank M. Lipscomb by a certificate of insurance, which they identify by description, impliedly admitting the correctness of the copy at
The seventeenth assignment is that “the court erred in allowing J. B. Johnson and W. B. Davis to testify to the value of attorney’s fees for conducting this suit.”
We find that the grounds of objection to the testimony of these witnesses were: “1st. That the defendant was not at the time of issuing the certificate or at the time of instituting of this suit an insurance company. 2nd. That attorney’s fees were not properly an element of damage in the suit pending.” The only argument made here by the plaintiff in error in support of this assignment is that Chapter 4173 of the Laws of 1893, which provides that a judgment for reasonable attorney’s fees shall be entered in favor of the holder of a policy in an action against any life or fire insurance company in this State, wherein plaintiff recovers judgment, has been repealed by Chapter 4380 of the Laws of 1895, in so far as Knights of Pythias and the other orders enumerated in section 8 of said Chapter are concerned. This position is untenable, as a mere inspection of said two Chapters will show. Chapter 4380 neither directly nor by implication repeals Chapter 4173, and in no wise relates to or affects
The eighteenth and last assignment is based upon the denial of the motion for a new trial. This motion contains seventeen grounds, but in disposing of the other
The judgment must be affirmed, and it is so ordered, at the cost of the plaintiff in error.