Eaid v. National Cas. Co.
| Decision Date | 20 September 1927 |
| Citation | 259 P. 902,122 Or. 547 |
| Parties | EAID v. NATIONAL CASUALTY CO. [*] |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by W. H. Eaid against the National Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.
The plaintiff brought this action upon the policy of insurance known as commercial A policy, No. 0321067, issued by the defendant to plaintiff on July 21, 1922, whereby it undertook to issue and provide accident indemnity to plaintiff for total disability at the rate of $50 per week, not exceeding 300 consecutive weeks.
Plaintiff alleges, in substance, that on October 15, 1922, he stepped or tripped, upon some object upon the sidewalk and fell with great force, and by reason thereof was immediately continuously, and wholly prevented from performing any and every duty pertaining to his occupation, and that said disability continues; that the injuries consisted of blindness in both eyes which continued for many weeks, of bruises and lameness of the knees, back, and right hip, shock to the nervous system, and a continued weakness of sight that there is due from defendant $50 per week from October 15, 1922, for a period of 38 weeks, aggregating the sum of $1,900; that plaintiff notified the defendant thereof, as provided in the policy, and otherwise duly performed all the conditions of the policy on his part, except such as were waived as set out; that plaintiff has demanded such payment that no offer or tender of payment or settlement has been made, and more than eight months have elapsed since proof of injury; and alleges $250 as a reasonable attorney's fee in this action.
Plaintiff further alleges that, subsequent to the accident and after plaintiff had given defendant notice thereof as required by the policy, the defendant contemplated a blood test to ascertain if plaintiff was subject to any syphilitic condition, and examined into plaintiff's history and the circumstances surrounding his injury; and thereafter about January 8, 1923, with the full knowledge of plaintiff's history and condition and prior to the termination of plaintiff's disability and the period for which defendant was liable under the terms of the policy, the defendant company denied liability upon or by virtue of said policy and undertook to cancel the same upon the grounds and for the reasons as claimed by defendant that the application signed by plaintiff contained certain misrepresentation with reference to his occupation and income, and upon no other grounds whatever, and by reason of the foregoing facts the defendant has waived any further or affirmative proof of the loss from or on the part of plaintiff, or any other or further performance of the terms of said contract by plaintiff, and is estopped to claim that plaintiff has not complied with said policy relating to affirmative proof or loss or of any other provision or condition thereof.
Plaintiff further alleges that in his application his business was stated to be that of a hotel keeper; that said statement and classification of plaintiff as a hotel keeper was made by an agent of the defendant company after plaintiff had explained to said agent that he had been operating apartment and rooming houses and boarding houses, and had been engaged in said business for a long time and was at that time so engaged, which statements were true; that plaintiff knew nothing of the various classifications of risks made by the defendant company; that the agent of said company at the time stated that plaintiff would fall under the classification of a hotel keeper and wrote the same on said application; that if the application is erroneous in any respect the defendant is, by reason of the facts alleged, estopped to claim that the same is erroneous or to claim that said statement was falsely and fraudulently made by plaintiff.
A general demurrer to the amended complaint was overruled whereupon defendant answered, admitting the issuance of the policy, denying several of the allegations of the complaint, and set up five affirmative defenses:
First, that plaintiff's injury was willfully and purposely self-inflicted; second, that the application and agreement upon which the policy was issued by the defendant, which was attached to the policy and made a part thereof, and which application was signed by plaintiff, contained the following:
"I hereby apply for a policy to be based upon the following representation of facts: I understand and agree that the right to recover under any policy which may be issued upon the basis of this application, shall be barred in the event that any one of the following statements material either to the acceptance of the risk or to the hazard assumed by the company, is false or in the event that any one of the following statements is false and made with intent to deceive."
That plaintiff in his application falsely and fraudulently stated as follows, to wit:
"That his business and his occupation was that of a hotel keeper--office and supervising duties only."
That the application was false and known by plaintiff to be false. That defendant relied upon said statements as being true. That plaintiff was not then managing any office and supervising any hotel, but was pretending to be keeping a rooming house.
Secondly, plaintiff further falsely and fraudulently stated that his income a month exceeded the amount of monthly indemnity applied for by at least 25 per cent., which was knowingly false and was believed and relied upon by defendant, in that plaintiff's income was not $50 per month, nor any part thereof, and that the conduct of said rooming house no more than paid the expenses; that over and above said expenses plaintiff had no income whatsoever; that but for such false representations defendant would not have issued said policy; and that by reason thereof plaintiff is barred under his said agreement from any recovery.
Thirdly, that plaintiff failed and neglected to comply with the policy, and failed to furnish any report as provided, or otherwise, to defendant.
As a fourth defense defendant alleges that plaintiff failed and neglected to submit any proof of loss as provided by said policy and for a period of about seven months covered by said claim no notice, no proof of loss, no verified claim, or other report or notice was furnished or filed with the defendant.
As a fifth further and separate answer and defense, defendant alleges that prior to the bringing of this action the defendant, upon the discovery of said false and fraudulent conduct and answer of plaintiff, canceled said policy of the date of its issuance and returned to plaintiff by draft the premium of $42.50.
Plaintiff filed a reply to the new matter contained in the answer in detail, averring in addition another explanation of statement of plaintiff in the application as to his occupation, in substance, the same as was in the complaint; that the defendant company denied liability upon the policy for the reason that the application signed by plaintiff contained certain misrepresentations with reference to his occupation and income and no other grounds, thereby waiving any other and further grounds of defense, and is estopped to claim that any other or further misrepresentations were made in said application than those referred to, his occupation and income, and that plaintiff waived any further notice, report, or proof of loss; that the premium of $42.50 returned to plaintiff was thereafter returned to defendant. The policy is set forth in full in the record. The cause was tried to the court and a jury and a verdict rendered for plaintiff. From the consequent judgment, defendant appeals.
Andrew Hansen, of Portland (Henry S. Westbrook, of Portland, on the brief), for appellant.
W. F. Magill, of Portland, for respondent.
BEAN, J. (after stating the facts as above).
It is strenuously urged by defendant that the court erred in allowing plaintiff to amend his complaint. In the original pleadings the allegations of plaintiff, in regard to his statements to the agent concerning his occupation and allegations of waiver and estoppel, were contained in plaintiff's reply, but not in plaintiff's complaint. After plaintiff's testimony was introduced in the first instance and a motion for an involuntary nonsuit was interposed by defendant and denied by the court, the plaintiff was allowed to amend his complaint by setting forth therein the matters contained in the reply regarding waiver and estoppel, and the case was continued for 60 days. Defendant demurred to the amended complaint and contends that the court erred in allowing the amendment. The amendment, inserting the averments contained in the reply in the amended complaint, was in the nature of a formal amendment and did not substantially change the course of action. The matter was within the discretion of the trial court and we do not think there was any abuse in the exercise of such discretion. The continuance of the case gave the defendant ample time to attack the amendments and meet them upon the trial, to say nothing about the fact that the defendant was apprized of the claim made by plaintiff, by the averments in the reply. See Or. L. § 102; Talbot v. Garretson, 31 Or. 256, 264, 267, 49 P. 978; Nye v. Bill Nye Milling Co., 46 Or. 302, 80 P. 94; Caples v. Morgan, 81 Or. 692, 696, 160 P. 1154, L. R. A. 1917B, 760. In Baldock v. Atwood, 21 Or. 73, 79, 26 P. 1058, 1060, Mr. Chief Justice Strahan records the following language:
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