*1 73i Schafter, Inc., dis- percentage Henry disturbed on review. compensation for that Mitchell, in- 198 v. P.2d ability as the result of Okl. 397. sustained juries May August, 1952. Award sustained. a workman general rule is: Where HALLEY, J., J., JOHNSON, C. V. C. injury member
has sustained WELCH, WILLIAMS, BLACK- personal dis- body resulting in some of his BIRD, JJ., concur. ability member and he thereafter subsequent injury causing ad- sustains a permanent disability thereto less
ditional he
than total loss of the use of member
may only compensation for recover disability
percentage sustained the last Morgan Drilling
injury alone. Co. v. 943;
Bower, 667, 189 P.2d Wise- 199 Okl. Risco,
Buchanan
Co.
150 Okl.
Coal
v.
C. P. A. CO. v.
JONES.
Lane,
411;
& Lewis
Okl.
Ellis
No. 34482.
273,
entire will be attributed to the injury may
last alone and the workman re compensation
cover for total loss of the per
use of the member rather than such disability
centage as was sustained injury
the last Forrest alone. E. Gilmore Booth, 717;
Co. v. 155 Okl. 8 P.2d Viers, Mining
Ravelin Co.
We do not think the rule contended for
by petitioners applicable here. The evi- disability
dence shows that the now claimed
by respondent only apparent became to him
after he injury sustained his August,
1952. He lost no time as a any result of injuries. other Under the doctor’s
testimony respondent was suffering ar- change
thritic right knee caused injuries traumatic above stated. No
particular percentage of such condition
may be any attributed to single injury but
under the testimony they doctor’s all com- produce
bined to the disability complained
of and found to exist the commission. many times held the cause disability arising
and extent from an questions injury are of fact to
accidental by the State determined Industrial Com any where there is competent
mission reasonably tending to sustain
evidence award based
finding, an thereon will not be *2 Mountcastle, M. Muskogee,
R. tiff in error. Davis, Harry
Forrester Brewster and G. Muskogee, defendant error. PER CURIAM. Lee O. commenced this action in Jones of Muskogee County
the District Court Company, corporation, a against to. C.P.A. upon recover insurance unemployment. Judgment was rendered jury verdict favor of appealed. has and defendant parties they appear will referred to the trial court. pertinent on facts which this action based are as follows: Lee 0. had Jones employed been as a machinist since Heavener, City Oklahoma Kansas Railroad Prior to. Southern 16, 1948, January he had worked on a shift with other machinists. On date he night was he shift where had to work alone. 26, 1948, January
On made for a him insuring against unemploy- insurance accepted His ment. was 28, 1948, January issued. employed prior While . 16, 1948, January always he had others him working with able make required of event the states reports written out certain read cause in official position. was unable to He in his re- prepare shown causes as and could and write *3 papers investigation relating name thereto his ports, sign he could prepared suspen- discharge them. Insured’s or actual some of his friends after sion, reports writing will be deemed to be the These discharge.” causes of by Interstate Commission. the Commerce monthly, quarterly, They had to be made find that the above states no annually. copy semi-annually, One specific cause discharge for and that we Heavener, one kept reports at was justified are in examining investigation the applied, it placed engine on the to which papers relating discharge to the insured’s mechanic at Pitts- to the master one sent suspension employment. or actual Kansas, sent to the I.C.C. burg, pertinent provisions Other of the Washington, D. C. are: 16, 1948, plaintiff January the on When “In consideration of the because of a re- was forced to work alone policy, copy for which appli- this of force, unable to make he was duction cation is attached hereto made a required reports and had no one to the hereof, part payment and the them This fact was called make for him. * * * premium per of month $4.75 foreman, attention the of the roundhouse to * * * hereby insures Lee O. Jones it who called to the attention the master by employed City the Kansas Southern Pittsburg, of the road at mechanic Kansas. Railroad, * * * provided, as hereinafter master mechanic came to The Heavener by loss occasioned investigation July on and conducted an suspension employ- actual his * * plaintiff days’ giving after two the ment, discharge job, from his hearing. notice of the The subject all to of the conditions and present proceedings and admitted that the herein limitations contained or en- 6, 1948, February were fair. On the dorsed hereon.” given a letter of tiff was or sus- heading “Discharge Under the or Sus- pension employment and was out for pension” provides: it days. the next 50 The letter was fol- “If, while continued in this lows : force, job by the insured shall his lose suspended “Heavener, actually or be Okla. Feb. 6-48 from his for cause oc- “Mr. Lee O. Jones applica- the curring after date that his you “Effective with date the accepted, been tion has received and disqualified (sic) been Machinast pay the will ten you the dollars a on shift have been day day, for each the you that Insured being removed from the suspension discharge or under actual and are job being shown out of service. fifty days but in event no to exceed truly, “Yours H. “Geo. Rockwell Ry.
“Gen. R. Foreman K. C. S. H. Co.” The for the states as follows: In this connection we find the ** jn eygntj however, policy of insurance contained the following company be shall the liable causes provisions relative letter of prior on originating date of papers reflecting held acceptance application.” employer prior discharging employee, being Policy: defendant submitted Sec. has as error but has discussed them signments of assigned by “The cause following alleged under errors: suspension or actual be the sole
shall basis for determining Overruling defendant’s motion for a new- liability ; In the trial requested in- testimony- We think that the above certain
The refusal
to admit
defendant;
given
been
struction should have
offered
jury.
permit
to cross-
Refusal
N,o. 1
in Instruction
advised
on which
Court
matters
examine the
jury
plaintiff must establish
examination
interrogated
he was
on direct
every
allegation in his
each and
material
of the de-
certain
and refusal
preponderance
petition
a fair
exhibits;
fendant’s
so,
to do
evidence and that
failure
offered
admitting certain evidence
jury
It
find for the defendant.
should
by defendant;
objected to
*4
petition
plaintiff’s
was amended
noted that
4;
giving instruction No.
Error
in
alleged
by interlineation and
that:
requested
give defendant’s
to
Refusal
plaintiff
discharged
and
“Said
8(8A);
No.
instruction
employment and
from his
removed
in
approving
verdict
accepting
a
In
and
under said
and
continued
instructions.
of the Court’s
disregard
employment
occurring
out of
for cause
as follows:
No. 4 is
Instruction
after
the
was received.
instruction.
fendant
third
plaintiff notified defendant
verdict
follows, to-wit:
Instruction
We find no
the
plaintiff lost
28th
by
cause
would be
of $500.00.’’
ance
tiff
ther
suant
fendant
tiff was
“
“Gentlemen
“If
the
‘The
evidence,
and issued
against
accepted the
day of
page
instructed that
is as follows:
you find
thereto,
of said
occurring
provisions
should
waived such
cause
entitled
employed, and
error in
No.
the
that the
his
January,
and at
the
by
application, and that
8(8A) requested by
the
after date
job
of said
application of
a
policy
policy, provides
giving
jury, you
recover,
preponderance of
favor
by discharge for
defendant,
said
notice,
Paragraph
1948,
policy, or de-
sued
by
time, plain-
the
as
in the sum
thereafter,
received
are
foregoing
accept-
on the
your
pur-
fur-
em-
de-
opinion
U.
was under consideration.
life
that
Clardy
came
curring “after the issuance of
disability
tract,
cording
a
Zellner,
risks
ous
should
contained
ring
ability
construction
In Atlas
[*]
policy
the time the
W.,
decisions
“(1-3)
insurance
an insurance
[*]
totally
for which it is
that
subsequent
v. Grand
be construed
to
*”
must result
173
the
benefits
It
its
Old.
We note
is,
is well established
Life
disabled
there
insurance is
of this and other Courts that
Court cited with
terms.
in the
policy
where
policy
provision
Lodge of Oklahoma A. O.
for
254,
Insurance
company may
did limit
that the
by
Clardy
injury
which included total
as
It is well established
responsible.
not
was issued.
47
certain
P.
a disease
every
disease occur-
that
a
ambiguous,
1065,
policy
or disease oc-
case,
contract and
liability
the
time,
insured
151,
other
by
and said
limit the
approval
supra,
under
existing
policy”,
numer
In
152,
dis-
but
con
the
be-
ac
:
suspen-
disability resulting
or actual
at a time
ployer for
subse-
policy.
quent
taking
be the sole basis for deter-
effect of
shall
sion
liability
pointed
by
out therein
court
mining
It is
event the
states no
it is fundamental
that
insurance
that
policies
apply
which
in the official
do
acts
occurred,
they
already
or
as shown
are contracts
the cause
causes
papers
contingency or
relating to
some
act
based
future,
suspen-
or
in the
and the court
actual
to occur
Insured’s
sion,
adopted
following
defini-
will be deemed
be the cause
therein
or
life
accident insurance
discharge’.”
causes of
tion
thereto,
contracts,
‘Life
insurance
other
contract:
and accident
thereof,
bound
un-
plain
contract where-
terms
has been defined as a
stipulated con-
less the
rule of
party for a
same violate some
indemnify
public
statute, and,
infringe
another
agrees
sideration
cases,
arising
or death
as in other
against
injury
accident
all doubt
any
excepted
pro-
in the
from ambiguities
conflicting
cause not
State
rel.
visions is resolved
the one
contract.
[ex
Sheets]
Co.,
etc.,
prepared
Pittsburg,
68 Ohio
St. L. R.
contract.”
67 N.E.
64 L.R.A.
St.
It
clear
case
Am.St.Rep. 635.’
provided
liability
under consideration
for
only
pol-
where
to be seen therefrom that
lost
“It is
here
for a
occurring
icies of
of the nature
cause or causes
after
insurance
indemnify
considered are intended to
date
his
insurance was ac-
contingencies,
cepted.
future
such
exempt
policies may properly
certain
think
the Court erred in refus
risks,
hazards,
contingencies.”
ing to
complete
evidence the
re
*5
Company
In Shannon Furniture
v. Fed- port
investigation
plaintiff’s
of the
of
em
205,
Surety Company,
eral
159 Okl.
ployer
on which his
was based.
22,
general
announced the
Court
policy expressly provided
that where
syllabus
in the second
as follows:
rule
suspension
the letter
or
fails
policy,
on an 'insurance
“To recover
to disclose the cause therefor
the reasons
bring himself within its
report
must
disclosed
investigation
of the
specified provisions.”
shall be
held
be
cause or causes of
report
discharge.
certainly
That
com
Metropolitan Life
Again in
Insurance
petent
purpose,
evidence for this
and since
Rosier,
Okl.
117 P.2d
definitely
fails to
793, 795, this Court said:
cause,
report
state
of the investiga
parties
contracting
“The
full
tion should be examined for the reasons for
legal right
agree
what ac-
plaintiff’s
suspension.
discharge or
shall be covered
the con-
cidents
report
the kind that shall be ex-
tract and
shows
There is no statute to the con-
discharged
suspended
cluded.
or
* *
*
parties
trary.
But the
there-
either because he was not
to,
contracts,
qualified
required
as in other
bound
to make the
written re-
thereof,
plain
ports
terms
unless the same
or because of a reduction in force
public policy
some rule of
violates
which forced
to work alone on a
* *
infringe
statute
*.”
night
shift with no other machinists to
him in making
reports.
assist
v. Home State Life
In Reed
Insurance
Company,
186 Okl.
97 P.2d
plain
The defendant demurred to
provided
Indemnity
that the Double
tiff’s evidence and moved for a directed
paid
should not be
if
Benefit
Insured’s verdict,
failed
to renew demurrer and
engaging
pas-
as
resulted
death
motion at the
of all
conclusion
of the evi
senger
otherwise
submarine or
aero- dence,
thereby
waived its demurrer to
operations.
Insured met his
nautic
death plaintiff’s
Linder,
Wright
evidence.
airplane
opinion
accident.
In the
manded expressed. herein
the views WELCH, J.,
HALLEY, C. O’NEAL,
ARNOLD, WILLIAMS
BLACKBIRD, JJ., concur. DAVISON, dissenting. JJ.,
CORN the services acknowledges
This court Boxley, K. Howard
Attorneys Calvin Brown,
Berry and E. William preparation
Special Masters aided recom- attorneys opinion. These
this Association, Bar by the Oklahoma mended Council, ap- approved the Judicial
pointed by court. *6 GUARDIANSHIP.
In WINTER’S re 34915.
No.
Supreme Oklahoma. Court of
Nov. 1953.
Rehearing Dec. 1953. Denied