MUTUAL LIFE & ACCIDENT ASS'N v. MUSTAIN

MUTUAL LIFE & ACCIDENT ASS'N v. MUSTAIN
1933 OK 217
20 P.2d 879
163 Okla. 25
Case Number: 23222
Decided: 04/04/1933
Supreme Court of Oklahoma

Mutual Life & Acci. Ass'n
v.
Mustain

Syllabus

¶0 Appeal and Error--Reversal--Failure of Defendant in Error to File Brief.
Where the plaintiff in error has served and filed brief and the defendant in error has failed to do so or offer any excuse for such failure, and the authorities in the brief, together with the record, support a reversal of the cause, this court may, at its discretion, reverse the cause with directions to grant a new trial. Chicago, R. I. & P. Ry. Co. v. Weaver, 67 Okla. 293, 171 P. 34; State ex rel. v. Parrish, 114 Okla. 239, 246 P. 1117. Appeal from District Court, Comanche County; E. L. Richardson, Judge.

Action by Tine J. Mustain against the Mutual Life & Accident Association of Frederick, Okla. From a judgment for the plaintiff, defendant appeals. Reversed and remanded, with directions.

John F. Thomas and Mounts & Chamberlin, for plaintiff in error.
Stevens & Cline and Mont Powell, for defendant in error.

PER CURIAM.

¶1 This suit was brought in the district court of Comanche county for $ 1,000 for injury to a foot, the resulting injury under the allegation of the plaintiff's petition being within the terms of a certain total disability clause of a life insurance policy.

¶2 A judgment was obtained by the plaintiff below adverse to the answer contained in the pleadings to the effect that the provisions of the policy did not apply to a case of this nature due to the fact that the injury resulting did not call for amputation, and that the liability being purely contractual, no judgment could be based on the testimony such as disclosed at the trial of the case.

¶3 The appeal was filed herein December 26, 1931, and on July 8, 1932, defendant in error filed a motion to dismiss for the reason that no brief had been filed under rule 7.

¶4 On the 29th of July, 1932, a response to this motion was filed stating that prior thereto and on the 28th of July, 1932, a brief had been filed by the plaintiff in error.

¶5 The court has examined the brief, and the authorities cited therein fully support the contention of the defendant in the court below, and the argument as well as the authorities cited sustain the proposition that on a contractual basis no liability exists upon such a statement of facts as was disclosed in the trial court.

¶6 Although practically nine months have elapsed since the filing of the brief, no answer brief has been filed by the defendant in error, nor has any excuse been given why the same has not been filed.