Hardwick v. State Ins. Co.

• Decision Date: 19 December 1892
• Citation: 23 Or. 290,31 P. 656
• Parties: HARDWICK v. STATE INS. CO.
• Court: Oregon Supreme Court

31 P. 656

23 Or. 290

HARDWICK v. STATE INS. CO.

Supreme Court of Oregon

December 19, 1892

Appeal from circuit court, Tamhill county; R.P. BOISE, Judge.

Action by George T. Hardwick against the State Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W.D. Fenton, for appellant.

H Hurley, for respondent.

BEAN J.

This is the second appeal in this case, (26 P. 840,) and there is no substantial difference in the issues and facts as now presented, so far as any questions arising on this appeal are concerned, from those on the former appeal, except as hereafter noted. The cause was reversed on the former appeal, and a new trial ordered because the complaint did not state facts sufficient to constitute a cause of action, for the reason that it failed to allege that plaintiff had an insurable interest in the property at the date of the contract and time of the loss, or had paid or tendered the premium agreed by him to be paid; and in the opinion then delivered it became necessary for us to consider at considerable length the law of principal and agent, as applied to the facts of this case and it is therefore unnecessary for us to again enter upon a discussion of the question. An amended complaint was filed in the court below in terms the same as the original, except that it contains an averment of plaintiff's insurable interest, and of a tender of the premium. Upon issue joined a trial was had, resulting in a verdict and judgment in favor of the plaintiff, from which defendant appeals.

Although the notice of appeal contains numerous assignments of error the most important of them are based upon the theory that this is an action on an oral contract of insurance, which is presumed to contain the terms and conditions usually inserted by defendant in its policies of insurance in like cases; and that, plaintiff having neglected and failed to comply with such terms and conditions, and furnish the proof of loss and commence this action, within the time, as usually provided in such policies, this action cannot be maintained. This question was presented and decided in the former appeal, the court saying, on page 551, 20 Or., and page 841, 26 Pac.Rep. "We do not understand this action to be based upon an oral contract of insurance, but upon an alleged preliminary oral contract, by which it was agreed that defendant should insure plaintiff upon the property for one year, for the sum and at the rate agreed upon from the time of making the contract; and that a policy should thereafter be made out by the defendant company at its home office, to take effect from that time." And, again, on page 556, 20 Or., and page 843, 26 Pac.Rep-: "This action is not...