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discussed, and which in Iny judgment is so clear that it ought to carry the conviction that the language used is not Susceptible to the construction placed upon it in the majority Opinion. This dissenting opinion, in so far as it discussed the actual terms of the paragraph of the policy here under consideration, is as follows: “The Standard policy, of which this forms a part, has been prepared under authority of law by men experienced in insurance contracts, and it is therefore fair to aSSume that the agreement may be treated as one prepared by men competent to use language adequate to convey clearly and distinctly the views of the parties. In Such case it is the rule that, if the language of a statute or contract, read in the order of its clauses, presents no ambiguity, Courts will not attempt, through transposition of clauses or ingenious argument as to the general intent, to qualify by construction its meaning. Doe (Poor) v. Considine, 6 Wall. 458, 18 L. Ed. 869. The first sentence provides for the cancellation of a policy. It declares that “it shall be canceled * * * by the company by giving five days' notice Of Such cancellation.” In other Words, the underwriter, by its contract, reserved to itself the right to cancel the Contract of insurance by a notice of five days. Nothing else is proVided to be done. Notice alone Shall be Sufficient, says the contract. The language is unambiguous. It admits of no debate, and requires no construction. Words more apt to accomplish the cancellation of a policy by the giving Of the five days' notice Cannot Well be imagined. Having provided for a cancellation of the policy, either by the request of the insured Or upon notice given by the company, the next clause of the agreement proceeds to make disposition of the unearned premiums, in the event of the exercise of the option to cancel by either of the parties. The opening phrase of the clause shows that what follows proceeds upon the assumption that the policy shall have been canceled before occasion arises for acting under its proviSions. It reads: ‘If this policy shall be canceled as hereinbefore provided [referring necessarily to the company’s five days' notice], the unearned portions of the premiums Shall be returned.” When? At the time Of the giving of the five days' notice of cancellation? Not at all. “On the surrender of the policy” is the Occasion fixed by the contract for its return. The scheme of this portion of the contract, then, is to provide, first, for the cancellation of the policy. That is to be accomplished by the simple request of the insured, if he desires to cancel it, or by a five days’ notice On the part of the company, if it deSires to terminate itS Obligation under the policy. The policy having been put an end to by cancellation, at the insistence of one party or the other, then the situation of the parties is such that the company has in its possession certain premiums which it has not
and the other party has in his possession the policy Of insurance, no longer, of course, of uSe to him, and Of no particular Value to the company, except that, when it finally comes into the company's possession, it of itself furnishes evidence that the unearned premiums have been paid to the insured. With this Situation, then, the agreement undertakes to deal, and it provides that upon the Surrender of the policy the unearned premium, whether at Short rate or pro rata premium, depending upon Which party brought about the canCellation, Shall be returned to the insured. Practically it says to the insured: “You return the policy to the place where you got it from, and the Company Will at Once turn over the unearned premium to which you are entitled under this contract. This agreement is so clearly expressed that there does not seem to be opportunity for insisting that the language means Something quite different from What is Suggested to the mind upon the first reading. And still other readings will not prompt the thought that there is possibly any ambiguity. It is Suggested in the Opinion Of the learned trial judge in the case of Nitsch V. American Cent. Ins. Co., subsequently affirmed in this court without an opinion (152 N. Y. 635, 46 N. E. 1149), that, under such a reading of the Contract as On its face it is apparent it should have, ‘a man might pay $1,000 for insurance tO-day, receive a notice from the insurance company to-morrow, which would have the effect to cancel his policy in five days, and at the end of the Week have no remedy except an action at law against the company. Such a case could happen, undoubtedly; but it is InOt likely to. CourtS Cannot aSSume that insurance companies will act arbitrarily, or that they are so lacking in business prudence as to be willing to acquire a reputation for practicing a wrong of that character upon customers. On the contrary, we must assume that corporations, as Well as individuals, intend faithfully to keep their contracts. But, were it our duty to indulge in a totally different presumption, the Situation Would not be changed; for the court is Without authority to make contracts for the parties.” I believe the decided preponderance of text and judicial expression in the United States, supports the conclusion reached by Chief Justice Parker. 19 Cyc. 644; Vance on Insurance, § 183; Richards on Insurance (3d Ed.) § 288; Parsons & Arbaugh et al. v. Northwestern National Insurance Co., 133 Iowa, 532, 110 N. W. 907; Davidson v. German Insurance Co., 74 N. J. Law, 487, 65 Atl. 996, 13 L. R. A. (N. S.) 884, 12 Am. & Eng. Ann. Cas. 1065; Newark Fire Insurance Co. v. Sammons et al., 11 Ill. App. 230; Insurance CO. V. Brecheisen, 50 Ohio St. 542, 35 N. E. 53; Schwarzchild & Sulzberger Co. v. Phoenix Insurance Co. of Hartford (C. C.) 115 Fed. 653; El Paso Reduction Co. V. Hartford Fire Insurance Co. (C. C.) 121 Fed. 937; Schwarzchild & Sulzberger Co. v. Phoenix Insural-ce In addition to the foregoing, the cases of Walthear v. Pennsylvania Fire Insurance Co., 2 App. Div. 328, 37 N. Y. Supp. 857, and Backus et al. V. Exchange Fire Insurance Co., 26 App. Div. 91, 49 N. Y. Supp. 677, both being cases decided by the First Department of the Supreme Court of the state of New York, sustain the doctrine of the foregoing authorities. Cyc, States the doctrine as follows: “If the policy gives the insurer the right at any time to cancel and return the unearned premium “upon Surrender of the policy, or the right to Cancel “upon notice, the return of the premium or tender thereof is not a condition precedent.” On the same question, Vance on Insurance, Supra, says: “The cancellation clause of the standard form of policy seems so clearly worded that one is surprised to see that disputes have arisen as to its construction. It is held by the better authority that, after the expiration of the five-day notice required in case the cancellation is by the company, the insurance is deemed to be terminated and inoperative, without further act on the part of the insurer or any actual cancellation of the policy. The Kentucky court, however, in its zeal to protect the insured, has recently decided that this condition requires of the insurer desiring to terminate the cancel the policy and return the pro rata premium, When the insurance Will be terminated after five days notice of such cancellation. Such a construction seems to Stretch the language of the condition almost beyond recognition. By the weight of authority the repayment of the unearned premium is not, under the standard policy, a condition precedent to the termination of the insurance by the insurer. Such repayment becomes due only upon surrender of the policy. The New York Court of Appeals has, however, in a very unsatisfactory opinion, adopted the contrary rule” (referring to the Tisdell and Nitsch Cases). A most elucidating and satisfactory discussion of the whole subject is contained in Richards on Insurance, Supra, as follows: “Prior to the adoption of the standard form, it was held in many decisions under an earlier clause that, in Order to effect a cancellation, the Company, if in receipt of the premium, must accompany its notice with a payment or tender of the unearned portion of the premium. This rule Was Onerous to the companies. A company has a fixed inabitation and is Solvent, else the insurance department would not allow it to transact business. Upon cancellation of a policy the insurer is as much entitled to a Surrender of the policy as the assured is to a return of the unearned premium. The insured are scattered all over the country. Sometimes several notices must be sent before the right party can be found. Legal tender can be made Only in Cash. Rates Of premium are
insurance that he shall first,
eral, to make personal tender. It is not Safe to send Cash by mail, and, though the assured receive the remittance, if unscrupulous, he may deny it, and, though honest, after getting his cash, he will Seldom take the trouble to return the policy until it is demanded. The framers Of the Standard policy, therefore, inserted the Seemingly unambiguous statement that the notice by itself Shall Cancel, but that “the unearned premium Shall be returned on Surrender Of this policy or last renewal. In the opinion of Some of the courts, the provision must be enforced as it reads. But, by the current of authority up to this date, the duty is laid upon the company, when seeking cancellation under the standard policy, to accompany its notice of cancellation with payment or actual tender of the return premium in order to make the notice operative. Such courts apparently consider it unconscionable to allow the company to get off the risk without simultaneously reinstating the assured, and putting him in funds with which to procure his substitute insurance. It is, indeed, difficult, however, to escape the conclusion of the dissenting judges in the New York Court of Appeals, voiced by the Chief Justice, that this is by interpretation to substitute a new contract in place of unambiguous terms adopted by the Legislature.” In my judgment, had the learned author investigated the cases a little more closely, he Would not have come to the conclusion that the Current of authority to the date of his expression laid the duty on the company to tender or return the premium in addition to giving notice. The Supreme Court of New Jersey, 16 justices concurring in an opinion (Davidson V. German Insurance CO., Supra) reached the unanimous conclusion that, “under the Cancellation clause in a standard policy of fire insurance, the company is not required to pay or tender the unearned premiums in order to bring about a cancellation of the policy.” The federal Circuit Court of Appeals, in an opinion reported in 124 Fed. 52, 59 C. C. A. 572, affirmed a judgment rendered by the Circuit Court of the Southern District in New York, in the case of Schwarzchild & Sulzberger Co. v. Phoenix Insurance Co. and on the proposition before us in the syllabus said: “Under a provision in an insurance policy giving the insurer the right to cancel the same by giving five days' notice, and requiring it to return the unearned premium in case of cancellation “On Surrender of the policy, it is not essential to the effectiveness of a notice of cancellation by the insurer that the unearned premium be returned or tendered in advance of the Surrender of the policy by the insured.” In the discussion thereof, Circuit Judge Townsend, who prepared the opinion of the court, said: “In support of its contention counsel for plaintiff relies upon the case of Tisdell V. New Y. 163, 49 N. E. 664, 40 L. R. A. 765. It is true that in said case the Court of Appeals of the state of New York, by a divided court, held that such repayment was a condition precedent to cancellation. . We are not unmindful of the great weight which should ordinarily be given to the decisions of Said court, especially upon a question involving the construction of a form of policy fixed by the Statute Of Said State. But in the TiSdell Case we are wholly without any sufficient or satisfactory guide as to the process of reasoning by which a majority of the court reached its conclusion. The opinion states that: “The question presented on this appeal is no longer an Open one in this Court. It was decided in the case of Nitsch V. Amercan Central Insurance Company, 152 N. Y. 635, 46 N. E. 1149, affirmed in this court without any opinion. The memorandum of the decision in the Nitsch Case only shows that it affirmed a judgment of the Supreme Court, General Term, reported in 83 Hun, 614, 31 N. Y. Supp. 1131, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the trial court. Reference to 83 Hun. 614, 31 N. Y. Supp. 1131, shows that the General Term Wrote no Opinion. We are, therefore, without anything in the Reports to show what questions were decided, or even what issues were presented. Chief Justice Parker, however, in his dissenting opinion in the Tisdell Case, shows that the Court of Appeals was required to affirm a judgment of the General Term in the Nitsch Case upon another and unquestioned ground of waiver by defendant. In these circumstances, We are unable to accept the conclusions of the Court of Appeals in the Tisdell Case.” The Circuit Court of the Eastern District in Pennsylvania, in the case of El Paso Reduction Company v. Hartford Fire Insurance Company, supra, reaches the Same ConClusion. So that We See that the federal courts in both Pennsylvania and New York disagree from the construction placed upon this contract by the state courts in which they were located. The Supreme Court of Ohio, discussing the same principles here involved in a contract of insurance Which, while slightly differently worded, is no different in effect, in the case of Insurance Co. v. Brecheisen, supra, speaks as follows: “‘This insurance may also be terminated at any time, at the option of the company, on giving notice to that effect, and When the assured shall have paid the proportion of losses and expenses due the company under the provisions of his policy, at the date of such cancellation the premium note Shall be Surrendered. Under the above provisions of the policy, it is clear that the giving of the notice terminates the insurance. When the losses and expenses due the company at the date of cancellation shall be paid, the premium note shall be returned.
this contract, in order to cancel the policy, is to give notice to that effect. What follows is not a condition precedent to the termination of the insurance, but only an obligation to return the premium note upon payment of the proper proportion of the loSSeS and expenses. No contract is found in this policy for the return of the unearned premium as a condition precedent to the termination of the insurance, and the rights of the parties must be determined by the contract which they have made, and not by a contract to be made for them by the court. The question in such case is, not what contract the parties should have made, nor. what would be equitable, but what contract did they in fact make? Each party must stand or fall upon the Written contract found in the policy.” To exactly the same effect is the language of the Court of Appeals of Illinois of the First District in the Case Of Newark Fire Insurance Company v. Sammons et al., Supra. On this proposition the court said: “It WaS unquestionably COmpetent for the parties, in framing their colltract, to provide for the termination of the insurance at any time during the period covered by the policy, at the Option of either party, and to prescribe the mode in which that option should be exercised. These matters being Wholly Within the discretion of the parties, the language of their contract, and that alone, if free from ambiguity, must be resorted to for the purpose of ascertaining the steps necessary to make the cancellation effectual. The policy provides that the insurance “may be terminated at any time, by request of the assured, or by the company, on giving notice to that effect.’ This language is entirely clear and unambiguous. Either party, desiring to terminate the insurance, may do so simply by giving notice to that effect to the other party. Nothing more is required. It is true the contract further provides, in the same paragraph, that, on Surrender of the policy, the company shall refund to the inSured the unearned premium; but the return of such premium is not made a prerequisite to the termination of the insurance. That is to be paid only on production and surrender of the policy. By notice the insurance is terminated, and the relations of the parties are changed from that of insurer and inSured to that of debtor and creditor, for the amount of the unearned premium.” Construing the identical policy here involved, the Supreme Court of Iowa, in the case of Parsons & Arbaugh et al. V. NorthWestern National Insurance CO., Supra, Says: request is all that is essential to a cancellation; but the policy must be surrendered to secure the return of the unearned premium. The design of the paragraph was to enable one party to the contract to cancel it without the consent of the other, and to this end precisely what was necessary to accomplish this
As a general rule there is but little virtue in a dissenting opinion, and this one would not have been Written, except I entertain the hope that by a presentation of the precise holding of the courts on this question and the real value as precedents of Some of the cases, it will tend to remove, as I View it, the misconception that the weight of authority sustains the conclusion reached in the majority opinion. However, failing in this, I trust I have added a trifle to the weight of argument of those authors and courts holding that it lacks the Weight Of reason, which, after all is the Only thing Of real consequence. If the contract will, on Occasion, work out inequitable and unjust results, if it can be cured, then the Legislatures or parties ought to change it. They have the right to do so. Courts lack the authority, and, exercising it, invade a domain dangerous alike to public and private weal. I therefore conclude that the judgment Of the trial Court Should be affirmed.
In the foregoing conclusion I am authorized to say Justice HAYES concurs.
Ex parte CRANFORD.
(Criminal Court of Appeals of Oklahoma. 22, 1909.)
1. HABEAS CORPUS (§ 30*)—GROUNDS FOR RELIEF. Section 4867, Wilson's Rev. & Ann. St. 1903, provides: “No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: * * * (2) Upon any process issued on any final judgment of a court of competent jurisdiction.” Held, upon application for writ of habeas corpus showing commitment on judgment of conviction for the crime of adultery, that the writ be denied and rule to show cause refused. [Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30.*]
2. CRIMINAL LAW (§ 263*)—BENCH WARRANT —BILL OF RIGHTS. The declaration of section 30 of the Bill of Rights that “no warrant shall issue but upon probable cause, supported by oath or affirmation, describing as particularly as may be the place to be searched, and the person or thing to be seized,” has no application to a bench warrant issued upon an information filed in the district court pursuant to the finding of an examining magistrate, wherein the party charged by complaint filed has been bound over on the finding of probable cause to await the action of the district court. [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 610, 611; Dec. Dig. § 263.*] 3. ADULTERY (§ 4*)—PERSONS ENTITLED TO PROSECUTE. Under section 2264, Wilson's Rev. & Ann. St. 1903, defining adultery, and requiring that “prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife, of the other party to the crime: Provided, that any person may make complaint when
persons are living together in open and notorious adultery,” held that, in a prosecution commenced and carried on by the wife of defendant, the fact that defendant's wife obtained a divorce before his trial did not deprive the district court of jurisdiction to try the cause. [Ed. Note.—For other cases, see Adultery, Cent. Dig. §§ 8, 9; Dec. Dig. $4.*]
4. HABEAS CORPUs (§ 4*)—REMEDY BY WRIT OF ERROR OR APPEAL. ... Appellate courts uniformly hold that the writ of habeas corpus is not to take the place of a writ of error or of an appeal. [Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 4; Dec. Dig. § 4.*] (Syllabus by the Court.)
Original application by B. M. Cranford for Writ of habeas corpus. Writ denied.
B. M. Cranford, petitioner, Was convicted in the district court of Pontotoc county of the crime of adultery, and was thereupon Sentenced to imprisonment in the State prisOn for a term of five years.
Crawford & Bolen, for petitioner. Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the State.
DOYLE, J. On November 12, 1909, there was filed in this court a petition duly verified, praying that a writ of habeas corpus issue to T. J. Smith, Sheriff of Pontotoc county, and that, upon a hearing thereon, petitioner be discharged.
The petition, in substance, avers that on the 12th day of June, 1909, Mary E. Cranford, then the wife of petitioner, made complaint on oath before H. J. Brown, a justice of the peace of Pontotoc County, wherein petitioner was charged With the Crime of adultery; that on the 15th day of June, 1909, upOn a preliminary examination had before said justice of the peace, petitioner was held for trial in the district court of said county, and on the 24th day of June, 1909, Robert Wimbish, county attorney for said county, filed in the Said district Court an information charging petitioner with the crime of adultery, which information, omitting the title is as follows: “Comes noV Robt. Wimbish, the duly qualified and acting county attorney in and for Pontotoc county, state of Oklahoma, and gives the district court of the Seventh judicial district of said county and State of Oklahoma to know and be informed that the above-named defendant, B. M. Cranford, late of Pontotoc county, did in the year Of Our Lord One thousand nine hundred and nine commit the crime of adultery in the manner and form as follows: That is to say, the said defendant did in Said county and state at the date above named unlawfully, Willfully, and feloniously live in Open and notorious adultery with One Maggie Jones, a female person, the Said B. M. Cranford being then and there a male person and being then and there lawfully married to another
female person, to wit, Mary E. Cranford; and the said B. M. Cranford, a male perSon, did then and there unlawfully, Willfully, and feloniously and voluntarily have sexual intercourse with one Maggie Jones, a female person, the said B. M. Cranford being then and there lawfully married to another female person, to wit, Mary E. Cranford, contrary to the form of the statute in Such cases made and provided, and against the peace and dignity of the state of Oklahoma. Robt. Wimbish, County Atty. State of Oklahoma, Pontotoc County. I, Robt. Wimbish, being duly sworn on oath do state that the facts set out in the foregoing information are true based On lawful information and belief. RObt. Wimbish. SubSCribed and SWOrn to by Robt. Wimbish this the 24th day of June, 1909. W. T. Cox, Clerk Dist. Court, PontotoC CO. Okla.” Petitioner further a VerS that he was again arrested upon a bench warrant issued upon said information; that on the 13th day of October, 1909, he was tried and found guilty as charged; that on the 9th day of November, 1909, the said court rendered judgment on said verdict, and, in accordance thereWith, Sentenced him to imprisonment in the penitentiary for a term of five years; that he is now held in the common jail of Pontotoc county in the custody of said Sheriff. Petitioner avers that said judgment is illegal and void, and his restraint thereunder is illegal and unauthorized, for the following reasons, to Wit: “First, because the information is not Verified as is required by law, the same being verified by the county attorney, “based on lawful information and belief, the SWOrn affidavit Of the said Mary E. Cranford not being attached to the information and made a part thereof, and no allegation in Said information as to what the lawful information was and no allegation that it was based on said affidavit of Mary E. Cranford, and was not positively sworn to, as required by law, announced by this court in the Salter Case, 102 Pac. 719, and that said court had no jurisdiction of the case, and that Said judgment is absolutely void; second, for the reason that Mary E. Cranford, who had been the wife of your petitioner at the time of the alleged crime, filed a suit in the district court of Pontotoc county, Okl., and on the 29th day Of June, 1909, and long before this case Was tried, obtained a divorce from this petitioner, and that no notice of appeal was given Within 10 dayS, and that no appeal has been taken, and that at the time of the trial, Verdict, and judgment she was not the wife of this petitioner, and that no prosecution could be ‘carried on by her, but Said suit was abated; wherefore your petitioner asks that a writ of habeas corpus issue, and that upon hearing he be discharged.” To this application, the Attorney General filed a demurrer as follows: “Comes now on this 15th day of November, 1909, the Attorney General, and for and upon behalf of the State of Oklaho
tled matter for the reason that same does not State facts sufficient to entitle the petitioner to a discharge, in that it is immaterial that the complaining witness, Mary E. Cranford, had procured a divorce from the petitioner after the commission of the alleged offense, and after jurisdiction had attached over the person of the petitioner and the subject-matter Of the action before the trial WaS had thereon, as the divorce granted for the adultery charge could not abate the offense, nor divest the court of jurisdiction of the Subject-matter thereof. Second. That the irregularities complained of as to the Verification Of the information could not be attacked collaterally on habeas corpus, but could only be attacked by appeal after objections made in due time and exceptions Saved to the action Of the trial COurt thereOn.” We are of opinion that the demurrer should be sustained. It appears by the averments of the petition that the issuance of the writ, or a rule on said sheriff to show cause why the Writ of habeas corpus should not be issued for petitioner's release, would result in a return that Said Sheriff holds the prisoner by virtue of the sentence of the district court of Pontotoc county. . The facts before the court are precisely the Same as if the Writ of habeas corpus had been Served or a rule to Show cause had been made. The court can determine the rights of the petitioner to be released, upon the pleadings as correctly and with more convenience, in the . administration of justice, then if the writ, or a rule to show cause, had issued. Upon principles which may be considered to be Well Settled in this court, it can have no right to issue this writ of habeas corpus as a means of reviewing the judgment of the district court upon the ground of error in its proceedings; but if it shall appear that the district Court had no jurisdiction to render the judgment which it gave, and under which the petitioner is held a prisoner, it is not only within the powers of this court, but it is its duty to allow the Writ of habeas corpus and discharge the petitioner. Ex parte Charles Johnson, 1 Okl. Cr. 414, 98 Pac. 461; Ex parte Gudenege, 2 Okl. Cr. —, 100 Pac. 39; Ex parte Mingle, 104 Pac. 68; Ex parte Justus, 104 Pac. 933. If the district Court had jurisdiction Of the perSon and the offense for which the petitioner was tried, and has not exceeded its powers in the Sentence Which it pronounced, this court can inquire no further. Whether the information sets forth in comprehensive terms the Offense, Which the statute describes and forbids, and for which it prescribes a punishment, is in every case a question of law, which must necessarily be decided by the trial court, and is therefore clearly within its jurisdiction. Its decision on the conformity of the information to the requirements Of the Statute may be erroneous, but, if it is so, it is an error of law of the trial court