Simmons v. Washington Fidelity Nat. Ins. Co.

• Decision Date: 26 May 1931
• Citation: 299 P. 294,136 Or. 400
• Parties: SIMMONS v. WASHINGTON FIDELITY NAT. INS. CO.
• Court: Oregon Supreme Court

299 P. 294

136 Or. 400

SIMMONS v. WASHINGTON FIDELITY NAT. INS. CO.

Supreme Court of Oregon, En Banc.

May 26, 1931

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by Charles A. Simmons against the Washington Fidelity National Insurance Company, in which defendant filed an equitable counterclaim. From a decree denying equitable relief and allowing the law action to proceed, defendant appeals.

Affirmed.

Milton R. Klepper, of Portland (D. W. Sheahan, of Enterprise, on the brief), for appellant.

Max Wilson, of Joseph, for respondent.

CAMPBELL, J.

Plaintiff commenced an action at law against defendant on a policy of health and accident insurance, claiming the sum of $900 and reasonable attorneys' fees. In his complaint he alleges that in the application for the insurance, there appeared certain questions and the application was filled out by the agent of the insurance company without asking those particular questions and without reading or informing the plaintiff of either questions or answers that were written therein. The questions and answers referred to are as follows:

"13. Are your habits of life correct and temperate and are you in sound condition mentally and physically? Yes. Is your hearing or vision impaired and have you any infirmity deformity or defect? No. Have you ever had fits of any kind, vertigo, hernia, paralysis, tuberculosis, or any form of heart trouble or kidney disease? No. Have you in contemplation any special journey or hazardous undertaking? No.

"14. Have you been disabled by either accident or illness, or received medical or surgical attention during the last ten (10) years. No. If so, when, for what and duration?

"In ........ for ........ lasting ........

"15. Do you understand and agree that the right to recovery under any policy which may be issued upon a basis of this application shall be barred in the event that any of the foregoing 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 foregoing statements is false and made with intent to deceive and that the insurance hereby applied for will not be in force until the policy is actually issued, and that the Company is not bound by any knowledge of or statements made by or to any agent unless written hereon, and that you will pay the quarterly premium of Fifteen and no-100 Dollars in advance without notice. Answer yes."

He further alleges that he did not make said answers, and that he signed the application without any knowledge on his part that it contained the matter above referred to. He alleges that he can neither read nor write; that he has learned to sign his name, which he does in a mechanical manner. The defendant answering the complaint deemed itself entitled to relief arising out of said facts and others set up in the further and separate answer, requiring the interposition of a court of equity under the provision of section 6-102, Or. Code 1930. Said equitable counterclaim alleging in effect, that, by reason of false, untrue, deceitful, and fraudulent answers, statements, and representations made by plaintiff in his application for said insurance company, the policy was obtained by fraud and was therefore void, and asked that the policy be surrendered and canceled. The reply put in issue the equitable matter set forth in the answer.

The trial court stayed the action at law for the time, and proceeded to determine the issues raised by the counterclaim in equity. After a hearing, the trial court rendered a decree denying the equitable relief and allowed the law action to proceed. From this decree, defendant appeals. The right of the defendant to appeal from the decree in this suit without waiting for a determination of the law action has been settled by numerous decisions of this court. James v. Ward, 96 Or. 667, 190 P. 1105; Gellert v. Bank of California, 107 Or. 162, 214 P. 377.

The material claim of the defendant is that plaintiff in his application for the policy of insurance made false and incorrect answers. The plaintiff, in his complaint, alleges that such answers as were false and incorrect were made without his knowledge or consent, and were so written in the application by the agent of the defendant. It is therefore admitted by both parties that some of the answers written in were false, and the question for the court to determine is whether the false answers were made by plaintiff or by defendant's agent.

The principal contention of defendant is that plaintiff was injured by an accident while handling logs, in February 1927, about six months prior to his application for insurance, and for that injury he was treated by a physician, but failed to disclose the same in his answers in the application. There is testimony tending to show that plaintiff had recovered from such injury so as to perform the ordinary labor to which he was accustomed, without material inconvenience, and that he was honest in making application for the insurance; that there was no attempt on his part to conceal that or any other fact in his application; that the soliciting agent did not ask him any such question; and that he made no such answers as appear in the application. It will be noted there is no allegation of collusion between the insured and the soliciting agent of the...