112 P. 1026 (Okla. 1910), Pacific Mut. Life Ins. Co. v. Adams

Citation:112 P. 1026, 27 Okla. 496, 1910 OK 354
Opinion Judge:TURNER, J.
Party Name:PACIFIC MUT. LIFE INS. CO. v. ADAMS et al.
Attorney:Cottingham & Bledsoe, for plaintiff in error. Paul F. Cooper, for defendants in error.
Case Date:November 16, 1910
Court:Supreme Court of Oklahoma
 
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Page 1026

112 P. 1026 (Okla. 1910)

27 Okla. 496, 1910 OK 354

PACIFIC MUT. LIFE INS. CO.

v.

ADAMS et al.

Supreme Court of Oklahoma

November 16, 1910

Syllabus by the Court.

Prior to the admission of the state into the Union, defendant, in a civil suit pending in the district court of Oklahoma Territory, was entitled, under the seventh amendment to the federal Constitution, to a common-law jury of 12 and to a unanimous verdict. This was a right in procedure and, as to all such suits so pending, was preserved under section 1 of the Schedule to the Constitution, providing, "No existing rights, actions, suits, proceedings, contracts or claims shall be affected by the change in the form of government, but all shall continue as if no change in the form of government had taken place," and remained unaffected by the change of procedure prescribed by Const. art. 2,§ 19, providing: "The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil *** cases in courts of record, other than county courts, shall consist of twelve men. *** In civil cases, *** three-fourths of the whole number of jurors concurring shall have power to render a verdict. *** In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein." And an instruction in the trial of such causes after statehood, in effect, that the jury might return a verdict on concurrence of nine of their number, is error.

Where, in the trial of a cause after statehood which was pending in the district court of Oklahoma Territory prior to that time, and in which defendant was entitled to a common-law jury of 12 and to a unanimous verdict, a verdict is returned against him signed by 11 of the jurors, such verdict is null.

Provisions in an accident insurance policy requiring that immediate written notice must be given the insurer of any accident and injury for which a claim is to be made, and affirmative proof of death furnished insurer within two months from the date of insured's death, are conditions subsequent and are fulfilled by notice and proof of death within a reasonable time after insured's death under all the circumstances of the case.

Insured died August 5, 1903, leaving, him surviving, plaintiff. as beneficiary in an accident insurance policy On deceased's life. Plaintiff, who lived several hundred miles away from where deceased was killed, first learned of said policy on January 8, 1904, but not of its terms or the name of the company by which it was issued, and did not obtain said policy until January 23, 1904, on which date he sent written notice to the insurer of the accident and demanded payment, and on February 5, 1904, furnished proof of death. Held, that such notice and proof of death were furnished within a reasonable time under all the circumstances, and that plaintiff's failure so to do within two months after the death of insured, as required by the policy, was no defense to a suit thereon.

Though an accident policy provide that written notice must be given to the insurer at its home office of any accident and injury for which a claim is to be made thereunder, and affirmative proof of death furnished the insurer within two months from the time of death, and that suit thereon may not be brought before the expiry of three months from the date of filing proofs at its home office, nor brought at all unless begun within six months from the time of the death, held, that such six months' limitation applies only where, after furnishing said notice and proof of death within a reasonable time thereafter and after the expiry of said three months, sufficient time remains in which to bring suit within six months from said death.

The expression "unnecessary exposure to danger" includes exposure attributable to negligence on the part of the assured. It is intended to hold the insured to the exercise of ordinary care and exempt the insurer from liability in all cases of injury occurring in whole or in part through a failure on the part of the insured to exercise such care.

Where a given state of facts are such that reasonable men may fairly differ upon the question as to whether the insured died of injuries resulting from "unnecessary exposure to danger," the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that such a question is ever considered one of law for the court.

Error from District Court, Oklahoma County; George W. Clark, Judge.

Action by William F. Adams and others against the Pacific Mutual Life Insurance Company. Judgment for plaintiffs, and defendant brings error. Reversed and remanded. Upon the death of plaintiff pending the action, it was revived in the name of Wallace Estell, Jr., his special administrator.

Cottingham & Bledsoe, for plaintiff in error.

Paul F. Cooper, for defendants in error.

TURNER, J.

On June 28, 1904, William F. Adams, defendant in error, as plaintiff, sued the Pacific Mutual Life Insurance Company, plaintiff in error, in the district court of Oklahoma county, to recover $2,000 on an accident insurance policy issued by said company on the life of James Adams, and in favor of plaintiff as beneficiary. After issue joined, there was trial to a jury on March 28, 1908, which resulted in judgment for plaintiff. The insurance company brings the case here. In this court the death of William F. Adams has been suggested, and the cause by consent revived in the name of Wallace Estell, Jr., as special administrator.

The only question necessary for us to determine is: Did the court err in instructing the jury, over objection, in effect, that they could render a verdict on 9 of their number concurring and in rendering judgment on the verdict concurred in and signed by 11 of said jurors? The charge was based on article 2, § 19, which on this point reads: "The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil cases in courts of record, other than county courts, shall consist of twelve men. *** In civil cases, three-fourths of the whole number of jurors concurring shall have power to render a verdict. *** In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein." In support of its contention that this was error, defendant contends that, as this suit was brought prior to statehood, it had, when brought, a right to a common-law jury of 12 under the seventh amendment to the federal Constitution, and to a unanimous verdict, and that said right was unaffected by said change in the form of government and by said section of the state Constitution. The point is well taken. The right claimed was one of procedure...

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