Johnson v. School Dist. No. 1 of Multnomah County

Decision Date08 January 1929
Citation273 P. 386,128 Or. 9
CourtOregon Supreme Court

In Bank.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

On petition for rehearing. Rehearing denied.

For former opinion, see 270 P. 764.

Isham N. Smith, of Portland, and Glenn J. Fairbrook, of Seattle Wash. (Shank, Belt & Fairbrook, of Seattle Wash., and Platt, Platt, Fales & Smith, of Portland, on the brief), for appellant Northwestern Mut. Fire Ass'n.

Sam H Pierce, of Portland, for School Dist. No. 1.

E. B Seabrook and Plowden Stott, both of Portland (Malarkey, Seabrook & Dibble and Plowden Stott, all of Portland, on the brief), for respondent.

Hewitt & Sox, of Albany, on the brief, amicus curiæ.


The original opinion was handed down October 2, 1928. 270 P. 764. Plaintiff petitioned for rehearing, and assigns nine alleged errors in the original opinion. All of the alleged errors, however, are based upon the contention expressed as follows:

"In other words our contention has always been that Section 6408 Oregon Laws does not, as far as foreign mutuals are concerned, excuse or relieve limited liability policy holders from the liability to the assessment required and prescribed in sub. (3) of Section 6416 Oregon Laws."

Plaintiff seems to concede that mutual insurance companies organized under the law of this state may lawfully issue policies of insurance fully paid up. He denies this privilege or right to foreign mutual insurance companies though duly authorized to write policies in the state of Oregon. Plaintiff arrives at this conclusion by construing the language in section 6408, Or. L., as limited to domestic corporations. The language referred to is as follows:

"Any such company may fix the contingent and mutual liability of its members for payment of losses and expenses by a uniform rule set forth in its by-laws and policies and such mutual liability shall not be less than twice the amount of the usual advance assessment written in the policy; provided, however, that companies which have accumulated in the regular course of the business, assets of not less than two hundred thousand dollars, of which not less than one hundred thousand dollars is net cash surplus over and above all the requirements of this act shall have power, subject to the approval of the insurance commissioner, while in that condition, to adopt by-laws limiting the liability of its policy-holders to the amount it may specify in its policies, and the power to issue policies with such limitation of liability to continue only during the time such corporation or association is in such financial condition; provided further, that every such corporation or association must print upon its policies such by-laws as will define the liability of a policy-holder."

It is the contention of plaintiff that "such company" refers only to companies organized in Oregon. It might be truthfully said that the word "such" refers to section 6399, Or. L., and following sections, all of which refer in a general way to companies organized under the laws of Oregon. All of these sections, however, including section 6408, are made applicable to foreign mutual companies by section 6420. We cannot adopt the argument of plaintiff without doing violence to the language of the statute. Said ...

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