Pacific Mut. Life Ins. Co. of California v. Coley

• Decision Date: 23 November 1920
• Docket Number: 9585.
• Citation: 193 P. 735,80 Okla. 1,1920 OK 352
• Parties: PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. COLEY.
• Court: Oklahoma Supreme Court

193 P. 735

80 Okla. 1, 1920 OK 352

PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. COLEY.

No. 9585.

Supreme Court of Oklahoma

November 23, 1920

Syllabus by the Court.

Where the facts on a second appeal are practically the same as on a first appeal, the decision of the first appeal is the law of the case in all its subsequent stages, and will not be reviewed on a second appeal.

The questions open to dispute as expressed, or by necessary implication, decided on a prior appeal, will not be reviewed on a second appeal.

Appeal from District Court, Muskogee County; R. P. de Graffinried Judge.

Action by Samuel B. Coley against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff and defendant appeals. Reversed and remanded with directions to render judgment for defendant.

Grant Foreman and J. D. Simms, both of Muskogee, for plaintiff in error.

Irwin Donovan, of Muskogee, and Crump, Crump & Bailey, for defendant in error.

COLLIER J.

This action was commenced in the district court of Muskogee county by the defendant in error, who will be hereinafter referred to as plaintiff, against the plaintiff in error, who will be hereinafter referred to as defendant, to recover, under a policy of accident insurance, for injuries alleged to have been suffered by him.

This is the second time this controversy has been before this court. Pacific Mutual Life Insurance Co. of California v. Samuel Coley (No. 7786) 62 Okl. 161, 162 P. 713, in which the first judgment rendered in favor of plaintiff was reversed and the cause remanded.

The pleadings in each of said cases are identical, the defendant pleading nonliability, and accord and satisfaction before the institution of this action, except that in this case additional replies were filed to the plea of accord and satisfaction, interposed by the defendant, that were not filed in the first case.

The evidence in the first appeal and the evidence in this appeal are practically the same, the material parts thereof being as follows: That the defendant was an insurance company doing business in the state of Oklahoma, and issued to the plaintiff a policy of insurance, which insured plaintiff against accident and sickness, but specified that he could not recover on both, due to one accident; and contracted to pay plaintiff, in the event he was injured by accident such as would "leave an exterior visible mark on the body" and cause him to be totally disabled from performing the duties of his occupation; the accident benefits provided by said policy, at the rate of $75 per month for the time of such total disability, not to exceed six months, during the time he was thus disabled. The policy further provides:

"Article 5. Illness benefits at the rate of seventy-five dollars per month for such time, not exceeding six months that said insured is necessarily and continuously confined inside the house and regularly visited in the house, by a legally qualified physician, by reason of disease that is contracted and begins after this policy has been maintained in force continuously for thirty days.

Or, if the insured by reason of such disease should be totally disabled and prevented continuously from performing any and all duties pertaining to the insured's occupation, though not confined inside the house, and regularly treated by a legally qualified physician, the company will pay such illness benefits for such time, not exceeding one month, provided the total amount of benefits payable under this article exceed the amount payable for six months of such house confinement."

The evidence further shows that the plaintiff while engaged in his duties as machinist was repairing a locomotive engine in the yards of the Missouri, Oklahoma & Gulf Railway Company at Muskogee, Okl.; and while so engaged slipped in such engine and fell violently, striking his back and hips against the reverse lever quadrant on said engine and against the edge of the cab floor, and that as a result of said injuries plaintiff was rendered unconscious, his spine was wrenched the muscles were greatly strained and stretched, and he suffered great shock to his spinal cord and the nerve center centering therein; that within the time provided by said policy plaintiff gave notice of such accident and the disability occasioned thereby, to the agent of the defendant company at Muskogee, at which place plaintiff resided at the time of giving such notice; that thereafter, on April 17 1913, plaintiff received from the defendant company a letter, which letter, check, and indorsements thereon are as follows:

"The Pacific Mutual Life Insurance Company of California. Chicago, April 17, 1913. Accident Department--Monthly Premium Division. H. A. Behrens, U.S Managing Agent. Eastern Head Office 122 S. Mich. Blvd. Mr. Samuel B. Coley, Muskogee, Okl.--Dear Sir: Acknowledging receipt of yours of the 12th inst., would say that reports at hand from you do not establish that your disability is the result solely of bodily injury caused through external, violent and accidental means which at once produced external mark upon the body. In fact reports establish contrariwise that there was no external mark on your body that immediately disabled you as a result of accidental bodily injury. Therefore, your claim, if anything, would come within the illness clause of your policy as you hold a general disability contract.

You will note that under the illness clause the limit of the company's liability is one month's benefits for nonhouse confinement and we, without acknowledging liability even in that amount are disposed to give you the benefit thereof and inclosing check herewith of $75.00 to cover. As for your request for deducting April premium this will serve to advise you

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