Purcell v. Washington Fidelity Nat. Ins. Co.
| Decision Date | 06 December 1932 |
| Citation | 141 Or. 98,16 P.2d 639 |
| Parties | PURCELL v. WASHINGTON FIDELITY NAT. INS. CO. |
| Court | Oregon Supreme Court |
Department 1.
Apeal from Circuit Court, Multonomah County; Hall S. Lusk, Judge.
Action by James W. Purcell against the Washington Fidelity National Insurance Company. Decree for defendant, and plaintiff appeals.
Reversed and remanded.
Frank C. Howell, of Portland (Wilbur, Beckett, Howell & Oppenheimer, of Portland, on the brief), for appellant.
Milton R. Klepper, of Portland, for respondent.
This is an action upon a policy of health and accident insurance issued by the Continental Life Insurance Company to the plaintiff, and later assumed by the defendant. The policy promised to pay the plaintiff the sum of $100 per month for any period of disability that confined him within doors. The complaint alleged a disability, commencing June 4, 1928, and the defendant's failure to make any payments subsequent to March 30, 1930. It prayed for $1,300 damages, and $600 attorney's fees. The answer, after denying all of the averments of the complaint, alleged that the Continental Life Insurance Company had issued this policy; that subsequently the defendant assumed it as its own; that the plaintiff, in procuring the contract, signed and delivered to the Continental Company an application for insurance wherein he answered the question: "What accident or health insurance have you in other companies or associations?" by replying: "None"; that the plaintiff's answer was untrue; that at the time he made that answer he possessed a policy of insurance issued by the Penn Mutual Life Insurance Company of Philadelphia in the amount of $3,500, which contained a provision for the payment to him of $35 per month in the event of his disability before reaching the age of 60; that the Continental Company relied upon the representations contained in the above answer, and was thereby deceived into issuing the policy. It also alleged that the policy contained a provision of nonliability in the event that any answers to the questions were false, and, after averring that before it discovered the truth it had paid to the plaintiff the sum of $2,200, prayed that the policy be canceled and that it be granted judgment against the plaintiff for $2,200. The reply denied the averments of the answer. The decree granted the defendant the relief it sought. The plaintiff appealed.
The application contained the following question: "Do you agree that the falsity of any answer in this application for a policy shall bar the right to recover thereunder if such answer is made with intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company, and that the application shall not be binding upon the company until accepted by the company, and the first premium actually paid?" The plaintiff answered "Yes." The application was made a part of the contract of insurance.
Section 46-131, Oregon Code 1930, provides:
In the circuit court the taking of testimony was confined to the issues presented by the cross-complaint which prayed for a decree canceling the policy. The evidence disclosed that eleven years before the plaintiff applied for this policy he had secured from the Penn Mutual Life Insurance Company, a regular insurance company an endowment policy wherein that company promised to pay him the sum of $3,500, and, in the event that his death occurred prior to the payment of that sum, to pay $3,500 to his widow and children. The policy also contained a provision whereby the company agreed to pay him $35 per month in the event that he should suffer a total permanent disability prior to the time that he reached the age of 60. The defendant contends that the aforementioned question in the application could not be truthfully answered by the plaintiff without mention of his Penn Mutual policy, and that, since he answered the question with the word "None," the defendant is entitled to a decree of cancellation.
The predominant feature of the Penn Mutual Life Insurance Company policy was life insurance. The provision for protection against total permanent disability sustained by the insured before reaching the age of 60 was an incidental provision as distinguished from the principal undertaking of the policy. The life insurance was payable in all events, whereas the disability insurance was payable only conditionally.
The real question is: Did the defendant have a right to expect that those solicited by its agents who possessed life policies with incidental disability features would answer this question by mentioning those policies. It is now a demonstrated fact that the plaintiff did not understand that the question was aimed at his Penn Mutual policy. There is no contention that he sought to deceive or was actuated by any improper motive. He was an intelligent man, receiving a salary of $400 a month, and occupying a position with a responsible concern engaged in educational undertakings. The defendant's agent who sold him this policy, and who had previously sold him other policies, was present and wrote the plaintiff's answers. It is a matter of common knowledge that such agents assist the applicant in interpreting the...
To continue reading
Request your trial
-
Purcell v. Washington Fidelity Nat. Ins. Co.
...W. Purcell against Washington Fidelity National Insurance Company. From an adverse judgment, defendant appeals. Affirmed. See, also, 141 Or. 98, 16 P.2d 639. This an appeal from a judgment of the circuit court in favor of the plaintiff in an action instituted by him to recover indemnity upo......
-
Wardle v. International Health & Life Ins. Co.
...of its failure to do so is that all ambiguities in the application will be construed against the insurer. Purcell v. Washington Fidelity Nat'l Ins. Co., 141 Or. 98, 16 P.2d 639 (1932). An applicant, correspondingly, must act in good faith to truthfully answer direct questions that call for ......
-
U.S. Fid. & Guar. Co. v. Thomlinson Co.
...1 P. (2d) 1100, 7 P. (2d) 805 (1932); Byron v. First National Bank, 75 Or. 296, 146 P. 516 (1915); Purcell v. Washington Fidelity National Insurance Co., 141 Or. 98, 16 P. (2d) 639 (1932); State, for use and benefit of Stater Motor Co., Inc., v. Metropolitan Casualty Insurance Co. of New Yo......
-
Schweigert v. Beneficial Standard Life Ins. Co.
...the insured and prevent forfeiture. Smith v. Industrial Hospital Ass'n, 194 Or. 525, 533, 242 P.2d 592; Purcell v. Washington Fidelity Nat. Ins. Co., 141 Or. 98, 103, 16 P.2d 639; Schoeneman v. Hartford Fire Ins. Co., 125 Or. 571, 577, 267 P. 815. If a clause is susceptible to more than one......