#### McClain, Admr., Appellee, *v.*All States Life Ins. Co., Appellant.

(No. 6906

Decided February 9, 1948.)

*Messrs. Berry, McClain & White,*for appellee.

*Messrs. Marble $ Vordenberg,*for appellant.

Matthews, P. J.

This is an action by the insured’s administrator to recover death benefits under a life insurance policy on the life of Lucille Spencer. Aften a trial to the court without a jury, the court found in favor of the plaintiff and rendered judgment in his favor. This is an appeal from that judgment.

*355Although the record shows that there was no doubt about the issuance of the policy and its terms, the policy was not surrendered at the time of filing proof of death, and it was not produced at the trial. The evidence shows that the failure to surrender or produce the’ policy resulted from the fact that it could not be found after the insured’s death.

(1) The policy contains an express provision to pay upon proof of death and “upon surrender of this policy and evidence of premium payments thereunder. ” It is urged that the surrender of the policy is a *sine qua non*to recovery.

We have been cited to no case so holding, and we have found none. However, we think the cases- construing provisions requiring production of the policy upon change of beneficiary bear some analogy. It seems to be uniformly held that, if the insured has complied in all other respects, the change of beneficiary will be effected where the policy is not produced because such production is beyond the power of the insured. 29 American Jurisprudence, 987. We follow that analogy and hold that surrender of the policy is not indispensable to recovery.

It should be said also that this policy does not in express terms make the surrender of the policy a condition precedent to recovery, and it seems to us that if an insurance company intended to make 'recovery dependent upon so insubstantial a condition, it should have so stated in positive language.

Inability to produce a negotiable instrument, transferable by delivery, is not fatal, and an outstanding nonnegotiable insurance policy contains no such threat to the obligor. Even when a negotiable instrument, transferable by delivery, is lost before maturity, and danger exists that it might be enforceable in the hands of an innocent transferee before maturity, the only *356•effect is to require indemnity against the risk as a ■condition of enforcement by the plaintiff who has lost it, and is, therefore, unable to surrender it. 34 American Jurisprudence, 616 *et seq.*If, however, a negotiable certificate of deposit is payable to order and has never been endorsed, it is enforceable without surrender or indemnity. *Citizens’ National Bank*v. *Brown,*45 Ohio St., 39, 11 N. E., 799, 4 Am. St. Rep., 526. In that case, the court so' held in face of an express provision in the instrument that the maker would pay “on return of this.certificate.”

(2) The record contains testimony of witnesses to ■an affray between the insured and the beneficiary in which each struck the other. It contains also the hospital records showing that the insured was taken to the hospital immediately thereafter, where, upon examination, it was found that she was suffering from severe wounds. Her death resulted from these wounds. It is a fair inference that the beneficiary inflicted these wounds with some- kind of a pointed instrument.

Although the evidence tends to show that the insured struck the first blow, the nature of the wounds strongly tends to show that the beneficiary used excessive force with the intent to kill or to inflict great bodily harm. The trial court found for the plaintiff, and we are of the opinion that the evidence in itself was sufficient to justify the court in holding that the killing was intentional and felonious. If so, it barred the beneficiary from recovery and established a right to recover in the estate of the insured. *Filmore*v. *Metropolitan Life Ins. Co.,*82 Ohio St., 208, 92 N. E., 26, 137 Am. St. Rep., 778, 28 L. R. A. (N. S.), 675; 29 American Jurisprudence, 979.

(3) Over the objection of the defendant, the court admitted' in evidence the record of the case of *State*v. *357
      *Willis, Jr.,*in which Willis, Jr., was indicted for unlawfully, purposely, and maliciously killing Lucille Spencer, which record showed that Willis, Jr., pleaded guilty to manslaughter and was sentenced to the Ohio State Reformatory. It is now urged that the admission of that record was error.

In view of the other evidence in this case, we are not convinced that the admission of the record, even though erroneous, would be so prejudicial as to require a reversal of the judgment. However, we do not find that the court erred in this respect. In 29 American Jurisprudence, 1112, it is said: “Where the issue is whether the beneficiai’y murdered the insured, the record of his conviction therefor is admissible in evidence in a suit on the policy, and is clothed with a *prima facie*presumption of verity.”

It is true that a conviction in a criminal prosecution is not competent in a subsequent civil action, because of a lack of identity of parties, etc.- However, on tehe issue in this case, whether the beneficiary intentionally and feloniously killed the insured, the third party, that is, the defendant herein, has no interest other than to be protected against double liability. It is liable to the beneficiary or the insured’s estate, and, if as between the insured’s estate and the beneficiary, the latter is concluded, the insurer is fully protected, and any evidence, that would be competent in an action between the insured’s estate and the beneficiary on the issue of which is entitled to the proceeds of the policy, should be and is admissible in this action against the insured.

The plea of guilty of manslaughter is not inconsistent with the other evidence that the killing was intentional and felonious. Manslaughter is a felony and pray involve an intentional killing.

(4) The court admitted in evidence the coroner’s *358inquest.- This is assigned as error. It is said that as the death of the insured was admitted, the only purpose in offering the coroner’s record was to show the cause of death, and that it was inadmissible for that purpose.

By Section 2855-10, General Code, • the coroner is expressly required to record the cause of death, and by Section 2855-11, General Code, courts are required to admit such records in evidence in both civil and criminal cases.

It is true that in *State, ex rel. Dana,*v. *Gerber,*79 Ohio App., 1, 70 N. E. (2d), 111, the court held unconstitutional Section 2855-16, General Code, which provided that the coroner’s verdict should be “the legally accepted manner and mode in which the death occurred and the legally accepted cause of death.” The court construed this language to. be an attempt to make the coroner’s verdict binding and conclusive, and very properly held 'that this was beyond thé power of the Legislature, and, for that reason, among others, held the section to be unconstitutional. That case did not involve Section 2855-11, General Code, and the court did not assume to question its constitutionality. The fact that part of an enactment is unconstitutional does not require that the entire enactment shall be so declared. 37 Ohio Jurisprudence, 392. Furthermore, if the entire act were unconstitutional, then • the repealing section would be inoperative, thereby leaving the former statute in full force and effect. However, we are of the opinion that those portions of the statute that are pertinent here are valid enactments.

We find no error in the admission of the record.

Other errors are assigned. We have considered them and find none of them well-founded or prejudicial.

*359For these reasons, the judgment is affirmed.

*Judgment affirmed.*

Matthews, P, J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.