Pac. Mut. Life Ins. Co. of Cal. v. O'neil
| Decision Date | 11 February 1913 |
| Docket Number | Case Number: 2114 |
| Citation | 1913 OK 110,130 P. 270,36 Okla. 792 |
| Parties | PACIFIC MUT. LIFE INS. CO. OF CAL. v. O'NEIL. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--Review--Assignments of Error--Waiver. Assignments of error presented by counsel in their brief, if unsupported by authority or argument, will not be noticed by the court, unless it is apparent without further research that they are well taken.
2. PLEADING--Demurrer--Waiver of Error. When a demurrer is sustained to certain paragraph of an answer, and defendant by leave of court files an amended answer setting up the same defenses contained in the original answer, and to which the demurrer was directed, and issues are joined thereon, and a trial had, the defendant waives any error committed by the trial court in sustaining such demurrer.
3. EVIDENCE--Documentary Evidence--Books. Entries in books made in the ordinary course of business at or near the time of the transaction to which they relate, upon proof of the handwriting of the person who made such entries, in case of his death or absence from the county, may be admitted in evidence.
4. APPEAL AND ERROR--Review--Objections to Evidence. Remarks made by the trial court pertaining to the relevancy and competency of evidence offered, or in stating illustrative examples or hypothetical cases, held not to constitute reversible error, where the only objection made or exception saved was to the competency of the question propounded to the witness on the stand.
5. INSURANCE -- Insurable Interest -- Validity of Contract. One may insure his own life for the benefit of another having no insurable interest therein, where he makes the contract, and pays the premiums himself.
6. SAME--Application--Effect of False Answers. Under the law in force in the Indian Territory prior to statehood, a false answer to an inquiry giving the relationship between applicant for accident insurance and the beneficiary, where by the terms of the policy said answer is made a warranty, vitiates the policy, even though made in good faith and without knowledge of its falsity.
7. SAME--Forfeiture--Waiver--Estoppel in Pais. Where, after a policy has become a death claim, the company continues to treat it as a subsisting claim by receipting for the original policy and accepting and retaining proofs of death without condition or objection except to call for the names of additional persons cognizant of the facts of the insured's death, and where, after full knowledge of the facts rendering the policy voidable at its election, the premium paid was retained, and no offer made at any time before or during the trial to repay it, or tender it into court, or to exercise its right to rescind, such acts amount to both waiver and estoppel in pais.
8. SAME--Proofs of Loss--Waiver of Defects. Where proofs of death were received and retained without condition or objection, except to call for the names of additional witnesses, passengers on the train at the time of insured's death, it will be held that the insurance company waived any objections thereto that might otherwise have been urged.
Error from District Court, Pittsburg County; Preslie B. Cole, Judge.
Action by Mary O'Neil against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant brings error. Affirmed.
Masterson Peyton, for plaintiff in error.
James S. Arnote, for defendant in error.
¶1 The original petition in error contains 69 assignments of error, the amended petition in error four additional assignments. Authorities are cited in support of but eleven of the points urged as grounds for reversal, and some of these involve a consideration of the same question, being presented in a somewhat changed form; the brief of counsel as to the remaining questions consisting of little more than a restatement of the several assignments of error, followed by the general statement that by reason thereof the court committed error. This court has recently passed upon this identical question in Title Guaranty & Surety Co. v. Slinker, 35 Okla. 128, 153, 128 P. 696, where it was held that assignments of error presented by counsel in their brief, where unsupported by authority, would not be noticed by the court, unless it was apparent without further research that they were well taken.
¶2 Among other assignments urged is that the court erred in sustaining plaintiff's demurrer to paragraphs 5, 6, and 7 of the defendant's original answer. In view, however, of the fact that the defendant filed an amended answer, setting up specifically the several defenses pleaded in the original answer, to which the demurrer was directed, the error, if such it was, was thereby waived, and cannot here be assigned as ground for reversal. Tecumseh State Bank v. Maddox, 4 Okla. 583, 46 P. 563; Kingman & Co. v. Pixley, 7 Okla. 351, 54 P. 494; Berry et al. v. Barton et al., 12 Okla. 221, 71 P. 1074, 66 L.R.A. 513; Morrill et al. v. Casper et al., 13 Okla. 335, 73 P. 1102; Carle et al. v. Oklahoma Woolen Mills, 16 Okla. 515, 86 P. 66; Board of County Com'rs v. Beauchamp, 18 Okla. 1, 88 P. 1124; Hale v. Broe, 18 Okla. 147, 90 P. 5; Pattee Plow Co. v. Beard, 27 Okla. 239, 110 P. 752, Ann. Cas. 1912B, 704; Chidsey et al. v. Ellis et al., 31 Okla. 107, 125 P. 464.
¶3 Assignments of error four to thirteen, inclusive, concern the admission of the testimony of E. L. Dubois, a clerk in the office of the treasurer of the Midland Valley Railroad Company, and the admission in evidence of the deduction order book and other records of said office. The records referred to were kept by Thomas V. Cleever, timekeeper, who was at the time out of the jurisdiction of the court, having gone, according to the information of the witness, to the republic of Mexico. The proper predicate having been laid, we think the testimony competent under the rule laid down in First Nat. Bank of Enid v. Yeoman, 14 Okla. 626, 78 P. 388; Missouri, K. & T. Ry. Co. v. Davis, 24 Okla. 677, 104 P. 34, 24 L.R.A. (N.S.) 866; Missouri, K. & T. Ry. Co. v. Walker, 27 Okla. 849, 113 P. 907; Muskogee Electric Traction Co. v. McIntire, 37 Okla. 684, 133 P. 830.
¶4 The policy of insurance was issued in consideration of an order given by Thomas O'Neil on his employer, the Midland Valley Railroad Company, which authorized said employer to deduct from the wages of said employee certain specified sums of money, the same to be paid at stated intervals to the insurer. This order was given contemporaneously with the issuance of the policy, and directed that the first premium paid should be for a period of two months. The records introduced showed that, pursuant to said order, the deduction had been made from the insured's wages from the May pay roll, and a check drawn in favor of the Pacific Mutual Insurance Company June 1, 1907, for $ 11.90, which check was indorsed by the insurer, and deposited with the Corn Exchange National Bank of Chicago, and paid by the First National Bank of Muskogee, on which bank it was drawn, on June 27, 1907. It was shown that the amount of the check included a deduction in favor of the insured for $ 7.50, and of another employee for $ 5, the railroad company deducting 60 cents commission. This testimony was clearly competent, and was introduced for the purpose of showing the payment of the premium according to the terms of the policy. The fact that payment was made after the insured's death is of no consequence, as the policy was issued in consideration of the order given, and not its payment previous to his death. In fact, the order contains an express stipulation providing that in making settlement for any claim any amount payable on account thereof should first be applied to the payment of any premium for each and all of the insurance periods for which payment had not previously been made.
¶5 The fifteenth, twenty-third, twenty-fifth, twenty- seventh, and twenty-eighth assignments of error concern remarks made by the trial court, which it is claimed were calculated to prejudice the minds of the jury, but, upon referring to the record, we find that the only exceptions saved were made to the ruling of the court on the admission of evidence and not the remarks complained of.
¶6 As to the twenty-ninth assignment of error, a sufficient objection to the court's remarks was made, but, in view of our conclusions, the defendant was in no wise prejudiced by such statements.
¶7 It is urged that the plaintiff at the time of the issuance of the policy had no insurable interest in the life of the insured, and hence plaintiff cannot recover. Plaintiff and insured had been husband and wife for eighteen years, and up until March 25, 1907, when a decree of divorce was rendered in plaintiff's favor in an action theretofore begun by her in the United States court at McAlester, in October, 1906. On the date that the insured took out the policy of insurance it does not appear that he knew that his wife had obtained a divorce. He had previously written her, asking that she abandon the divorce proceedings, to which she promptly replied that she would do so. Some time prior to this, and in the month of February, plaintiff had given her deposition in said divorce proceedings. At that time the very general practice that prevailed in the United States courts in the Indian Territory was to hear all divorce cases either upon depositions or testimony given before the master in chancery. At the time plaintiff heard from her husband, she was visiting a relative at Ft. Cobb, in Western Oklahoma. After advising her husband that she would abandon the divorce proceedings, she neglected to advise her attorney of her conclusion, expecting as she testified, to be at McAlester, and see him in person, but was prevented from doing so by being detained at Ft. Cobb on account of the illness of a relative. The divorce was obtained shortly afterwards, when it appears from the testimony her husband wrote her again, and a...
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