Bohrnstedt v. Travelers' Ins. Co.

• Citation: 262 P. 938,123 Or. 539
• Parties: BOHRNSTEDT v. TRAVELERS' INS. CO.
• Decision Date: 10 January 1928
• Court: Oregon Supreme Court

262 P. 938

123 Or. 539

BOHRNSTEDT v. TRAVELERS' INS. CO.

Supreme Court of Oregon, En Banc.

January 10, 1928

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

On rehearing. Judgment which had been rendered for plaintiff in the trial court reversed, and action dismissed.

For former opinion, see 259 P. 419.

Charles A. Hart, of Portland (Carey & Kerr and Marvin K. Holland, all of Portland, on the brief), for appellant.

W. H Trindle and W. C. Winslow, both of Salem, for respondent.

BELT, J.

We confess error in the former opinion, 259 P. 419. Pride of opinion should never be permitted to prevail over logic and reason. Stubborn adherence to an erroneous conclusion ill becomes any court.

The sole question for consideration is whether the plaintiff should be denied the right of recovery for commission upon renewal premiums by reason of having accepted the agency of a rival insurance company within one year after the termination of his contract. So far as material herein, the contract provides:

"If this contract shall be terminated before the agent has been continuously in the service of the company for five years for any cause except the death of the agent (when renewal commissions as per the preceding paragraph shall be paid), and if the agent has not violated any of his obligations hereunder, the company will pay to the agent, or to such person as he may designate with the consent of the company, commissions on renewal premiums at the above rates for the period stipulated in the following table; but in no case shall commissions on renewal premiums be payable on term policies after the fifth year of insurance.

"(19) Either party to this contract may terminate same by giving to the other party seven days' notice in writing to that effect, and the power of the agent to collect and receive premiums shall cease with the termination of this contract."

The forfeiture clause provides:

"If the agent shall at any time within one year from date of the termination of this contract for any cause whatsoever enter the employment of any other life insurance company to work in the territory specified in section 1, all right to further commissions on renewal premiums shall cease with the date of such employment."

It will thus be seen that plaintiff's right to commission on renewal premiums is predicated upon two propositions: (1) That he has not violated any of the obligations of his contract; (2) that he has not entered the employment of any other life insurance company, to work in the territory specified, within one year from date of the termination of the contract. If our construction of the contract, as stated in the former opinion, is correct namely, that plaintiff would be entitled to commission unless he had breached the contract,...