of this furniture was conditioned upon the payment of cash on delivery, and, owing to the failure of defendant to pay on delivery, the sale did not become effective and title did not pass to the defendant. It is admitted by plaintiffs that no cash was paid on delivery; that a statement of their account was sent to the defendant on February 1, 1911, and defendant paid $54.10; that the account was presented for payment on the first of each succeeding month until June 17, 1911, when this action was brought; that on May 1, 1911, they proposed to Lehmann that if he would turn over a diamond ring for the balance due, they would accept that in payment of the account; this Lehmann agreed to do, but Lehmann could not make delivery at once, as the rings were out of the store. There no material conflict in the evidence. Defendant requested the court to instruct the jury to return a verdict in his favor, which was refused, and this holding of the court is assigned as error.

was

The general doctrine is that where the contract of sale provides for cash on delivery, and the goods are delivered, but the purchaser fails to pay, the title to the property does not pass with the possession, unless it is the intention of the seller that such title pass, or payment is waived. possession of the machine without giving the notes, and used it for over two months, during which time the vendor took no steps to recover it.

But it has been held that a seller of property for cash is not estopped from claiming it as against one who took a mortgage covering the property with knowledge that it had not been paid for and of the seller's claim, where directly after the delivery the seller's collector called for payment, but was unable to find the person who had made the purchase, and the property was allowed to remain in the purchaser's possession for some time before the seller sought to recover it. Skinner & K. Stationery Co. v. Lanmert Furniture Co. 182 Mo. App. 549, 166 S. W. 1079.

And it has been held that, in view of the nature of the goods and circumstances, there was no waiver of the condition to pay cash for carpets, curtains, and cornices on delivery, where the purchaser, in response to a demand for payment by the seller's employee after the articles had been installed, stated that he would go to the sellers' store that afternoon and pay for the goods, but failed to do so, and the seller waited a fortnight or more after the carpets were laid and the curtains hung before attempting to reclaim the goods, but in the meanwhile attempted to find the purchaser and obtain payment. Goldsmith v. Bryant, 26 Wis. 34. And it has been held that a condition that a note be given at the date of delivery was not waived because the vendor waited

Frech v. Lewis, 218 Pa. 141, 11 L.R.A. (N.S.) 948, 120 Am. St. Rep. 864, 67 Atl. 45, 11 Ann. Cas. 545; Tiedeman, Sales, § 217. If the purchaser refuses to pay on delivery, the law gives the seller the right to reclaim his goods, and the only excuse for not promptly reclaiming the goods is that the defendant had practised some trick or artifice upon the seller which caused him to delay in reclaiming the same. The conditions under which the plaintiffs in this action delayed for six months to reclaim possession of the goods were as follows: The goods were delivered in three instalments; no request was made for the cash payment until February 1, 1911, when a statement of the account was sent to the defendant, and he paid $54.10. Nothing more was said until the first of the following month, when a statement of the balance due was sent to the defendant, and on the first of each succeeding month until June, 1911, like statements were presented to the defendant, and he continuously made promise to pay in the future. In May, 1911, the plaintiff submitted a proposition to accept a diamond ring in settlement of the account, which was accepted by the defendant, but a subsequent controversy arose, and a delivery of the ring was never made. During the six months which intervened between

a few days after delivery for the note until the return of a particular person who had charge of the matter for the purchaser, where he would not have waited at all if anything had occurred to suggest a disposition to withhold the note absolutely; and a recovery of the property was accordingly allowed from a company which had taken over the purchaser's business. Adams v. Roscoe Lumber Co. 2 App. Div. 47, 37 N. Y. Supp. 265, affirmed in 159 N. Y. 176, 53 N. E. 805.

In Allen Lumber Co. v. Higuera, 86 Vt. 453, 85 Atl. 979, it was held that it could not be said as a matter of law that there was an actual consent to give credit, or that the seller's conduct was such that the intent necessary to a waiver of the condition for cash payment must be attributed to it, where it appeared that lumber was sold to a builder, under an agreement that it was to be paid for on delivery, but the vendee failed to pay at that time, and in a few days the person who made the sale called and requested payment, but the purchaser said that his boy was not there and that he would send the money as soon as he came, but failed to do so, and, when the seller again called, the purchaser objected that part of the order had not been filled, and, after this shortage was made good, the seller stated that he must have the money or the lumber, and a few days later repeated this statement, but the purchaser did not pay and used the lumber.

J. T. W.

the date of sale and June 17, 1911, the day this suit was instituted, no demand was made for the possession of the goods. Under these circumstances, the seller waived the condition of the cash payment, and voluntarily accepted defendant as a debtor, treating him from the day of sale to the

time of the institution of this action as a

debtor, attempting on the first of each month to collect the debt, and never mentioning their claim of ownership until they had endeavored for six months to make the collection by a cash payment or delivery of the diamond ring, without any showing that they had been delayed by trick or artifice being practised by the defendant to cause the seller to delay in reclaiming the goods.

There was no express reservation of title in the contract, merely a sale for cash. A voluntary delivery without payment, coupled with an inexcusable delay on the part of the seller in reclaiming the goods sold, would constitute in law a waiver of the conditions of such sale. Upton v. Sturbridge Cotton Mills, 111 Mass. 446; Bowen v. Burk, 13 Pa. 146; Freeman v. Nichols, 116 Mass. 309; Freeport Stone Co. v. Carey, 42 W. Va. 276, 26 S. E. 183. The question as to whether the plaintiffs had waived their right to reclaim the goods was submitted to the jury, and the plaintiff's now claim that inasmuch as the jury found they had not waived this right, such finding was

conclusive. The facts are not disputed; the

evidence offered by the plaintiff's conclusively established that they had waived the conditions of the sale by a failure to promptly rescind, and, in the absence of evidence tending to show that fraud or artifice in some form was used by the defendant to cause them to delay in reclaiming the goods and thereby take the case out of the general rule, the plaintiffs failed to make out a prima facie case, and the court should have given the peremptory instruction requested.

The cause should therefore be reversed. Per Curiam:

Adopted in whole.

OKLAHOMA SUPREME COURT.

(Division No. 1.)

ERROR to the Superior Court of Mus

kogee County to review a judgment in plaintiff's favor in an action brought to recover the amount alleged to be due on an accident insurance policy. Affirmed.

The facts are stated in the Commissioner's opinion."

Messrs. Baker, Pursel, Gavin, & Leith and C. A. Mountjoy for plaintiff in error. Messrs. Arnote & Rogers and Charles A. Cook, for defendant in error:

Death of insured was caused by accidental means within the terms of the policy.

Richards v. Travelers' Ins. Co. 89 Cal. 170, 23 Am. St. Rep. 455, 26 Pac. 762; Ripley v. Railway Pass. Assur. Co. 2 Bigelow, Ins. Cas. 738, Fed. Cas. No. 11,854; Bliss, Life Ins. § 438; 7 Am. L. Rev. 587, 1 Am. & Eng. Enc. Law, 87, § 3; Provi

Err.,

V.

MARY WILLIS, By Guardian.

(— Okla.

Insurance

proof.

145 Pac. 812.)

exception

burden of

Md. 315; Utter v. Travelers' Ins. Co. 65 Mich. 545, 8 Am. St. Rep. 913, 32 N. W.

Headnotes by SHARP, C.

Continental Casualty Co. 48 L.R.A.(N.S.) 524.

Sharp, C., filed the following opinion: Between the hours of 8 and 9 o'clock on the evening of December 10, 1909, the insured, Riley W. Willis, while walking along the street in the city of Ardmore, was knocked down by a blow in the face struck by one Ernest Keys. Striking the pavement, the insured sustained a fracture of the skull, resulting in his death. The action against the defendant is brought by the guardian of the beneficiary, and is to recover on a certain accident policy issued on the life of said Riley W. Willis.

The defense in this court is predicated upon two certain provisions of the policy, which, it is claimed, exempt it from any liability, namely:

(1) "In the event that the insured, while this policy is in force, shall sustain personal bodily injury, which is effected directly and independently from all other causes through external, violent, and purely accidental means, and which injury causes, at once (within twenty-four hours).

policy rendering the company liable. If the injury is not brought about by the agency of the insured, and if it is not anticipated by him, it is none the less accidental as far as he is concerned, although it may be inflicted with malice and premeditation by the other party; the great weight of authority being that an injury intentionally inflicted upon the insured by another is accidental, if it is unintentional on the part of the insured. As a protection against this class of liability, a clause is frequently inserted in policies of accident insurance, specifying that the policy shall not cover injuries, fatal or otherwise, intentionally inflicted upon the insured by himself or some other person. Ordinarily, where a policy expressly so provides, it is not necessary that the insured should take part in the intent of such third person, in order to make the exception operative, and relieve the company from its liability. The policy, in such cases, becomes one of limited indemnity as contradistinguished from that of general indemnity. It is shown that the blow sustained by the insured was

(2) "Indemnity shall not be payable for injuries, fatal or otherwise, intentionally inflicted upon the insured by himself or some other person."

We fail to find, however, that the former provision of the policy was availed of by the insurer as a defense in the trial court. It is a rule well supported by authority, and based upon sound principle, that, where death or injury has resulted from one of the excepted causes enumerated in the policy, the onus both of averment and proof in such regard rests upon the insurer. Vernon v. Iowa State Traveling Men's Asso. 158 Iowa, 597, 138 N. W. 696; Anthony v. Mercantile Mut. Acci. Asso. 162 Mass. 354, 26 L.R.A. 406, 44 Am. St. Rep. 367, 38 N. E. 973; Railway Officials' & E. Acci. Asso. v. Drummond, 56 Neb. 235, 76 N. W. 562; Stevens v. Continental Casualty Co. 12 N. D. 463, 97 N. W. 862; Standard Life & Acci. Ins. Co. v. Jones, 94 Ala. 434, 10 So. 530; Cronkhite v. Travelers' Ins. Co. 75 Wis. 116, 17 Am. St. Rep. 184, 43 N. W. 731; Home Ben. Asso. v. Sargent, 142 U. S 691, 35 L. ed. 1160, 12 Sup. Ct. Rep. 332; Fuller, Acci. & Employer's Liability Ins. pp. 100-102. Further consideration need not, therefore, be given this defense.

In the absence of any provision to the contrary in a policy insuring against death effected through "external, violent, and accidental means," an injury inflicted intentionally by another upon the insured, but

to the origin of the trouble between Keys and the insured is conflicting. That of plaintiff tends to show that the insured was sober and was not the aggressor in the difficulty; while the defendant's testimony tends to establish that the insured was drunk at the time, ran into Keys, and first struck him. There is nothing in the testimony that tends to distinguish the difficulty from an ordinary fist fight where but two or three blows were passed, except in the fatal consequences that attended it. Keys and two companions met Willis and another Indian on Caddo street near one of the main business corners of the city. The former did not know Willis at the time, and, whatever may have provoked the difficulty, there is no room for belief that the injuries sustained by Willis were intended by Keys. At the time Keys, who was a young man, weighing but 133 pounds, though right handed, was unable to use his right hand on account of a broken bone, and struck the insured, who was a heavier man, with his left fist. The blow knocked the insured backward on the slanting pavement, with the result that his head struck the pavement, fracturing his skull and causing death. Keys did not know until the morning following that Willis had died as a result of the fall. It is not even claimed that Keys intended the result that followed, but it is insisted that, having struck Willis intentionally, a recovery cannot be had on account of the last-mentioned.

So.

As we have seen, the insured's death was accidental. The injury which resulted fatally was not intentionally inflicted by Keys. The case differs materially from the great majority of the reported cases. Had Keys had in his hand a deadly weapon, the use of which was reasonably calculated to produce death, and in fact did so, a different question would be presented. No motive for killing the latter is shown to have existed, and the means used indicates only an intention to strike the insured. The result was unforeseen and unusual, and not such as would ordinarily follow a blow with the fist. It was not the logical result of a deliberate act, and could not reasonably have been anticipated by Keys, and he cannot be charged with a design of producing it. It was the result of fortuitous circumstances.

In Richards v. Travelers' Ins. Co. 89 Cal. 170, 23 Am. St. Rep. 455, 26 Pac. 762, the policy exempted against liability where death was the result of design on the part of the insured or any other person. The court instructed the jury that "if the death of Philip Richards was caused by a blow dealt him by H. J. Dassonville, or some other person, that would not prevent plaintiffs from recovering in this action, if you believe from the evidence that, when Dassonville or some other person inflicted such blow, he did not mean to kill said Philip Richards."

The giving of the instruction was sustained. It was said by the court that there were circumstances in evidence tending to show that, if Dassonville did give the blow which resulted afterwards in the death of the deceased (by a fall from an elevated sidewalk), he did not intend such result, and it would not be a correct construction of the clause of the policy under review to say that it includes every case where a blow, not intended to kill, unfortunately and undesignedly produces death.

In Travelers' Protective Asso. v. Weil, 40 Tex. Civ. App. 629, 91 S. W. 886, the action was to recover for the loss of an eye. It was complained by the appellant that the trial court erred in charging, in effect, that, if the assailant did not intend the particular injury, plaintiff was entitled to recover, and it was insisted that a verdict should have been directed for the defendant. Sustaining the contention, it was said by the court: "We do not undertake to say that consequences might not follow such a blow, of a character so unusual and so apparently unrelated to the act as to exclude the idea that they were included within the general intention to inflict injury."

between the facts there presented and those in Richards v. Travelers' Ins. Co. supra, and further says: "But under the facts of this case we are of opinion there is no room for controversy. We have a blow of the fist, struck by an adult man actuated by the anger and passion naturally resulting from his supposed provocation,— a blow struck in the eye, according to plaintiff's own statement. The force was sufficient to knock him down, and the injury to the eye was due to the blow, and not to the fall. We think the injury to the eye falls clearly within the general purpose to injure, and that it did not devolve on the defendant to show that Innes had a specific intention to inflict the particular character of injury which might flow from the assault."

In Utter v. Travelers' Ins. Co. 65 Mich. 545, 8 Am. St. Rep. 913, 32 N. W. 812, a provision of the policy excepted from recovery for death or personal injury, the result of design, either on the part of the insured or any other person. The insured was shot by an officer; but there was some evidence tending to show that the officer did not know it was the insured at whom he shot, and that he did not intend to kill the insured. It is said in the opinion: “It seems to me that the design intended by the terms of this policy must be the design that intended the actual result accomplished, and not the design of the act itself, which act resulted in the killing of one contrary to the design of the act. If, when Berry fired this shot, he did not know the man he fired at was Utter, and did not intend to kill Utter, it cannot be said that Utter lost his life by the design of Berry."

-

In Orr v. Travelers' Ins. Co. 120 Ala. 647, 24 So. 997, after quoting from the opinion in Utter v. Travelers' Ins. Co. the court announced the principle stated to be correct. In Travelers' Protective Asso. v. Fawcett, Ind. App., 104 N. E. 991, the insurer defended under a paragraph in the policy denying a recovery where the insured came to his death as the result of an injury intentionally inflicted by another. In that case the uncontroverted evidence showed that the assailant, a bank robber, discharged several shots from revolvers into a group of four men huddled together in front of a vault in the bank. The company relied upon the presumption that a person intends the usual and ordinary consequences of his act; that, relying upon this presumption, the usual and ordinary consequences of such an act would be to kill or injure some one or more of them; and that, as there was no evidence tending to overcome the presumption, it