Simmons v. Washington Fidelity Nat. Ins. Co.

• Decision Date: 19 July 1932
• Parties: SIMMONS v. WASHINGTON FIDELITY NAT. INS. CO.
• Court: Oregon Supreme Court

13 P.2d 366

140 Or. 164

SIMMONS v. WASHINGTON FIDELITY NAT. INS. CO.

Supreme Court of Oregon

July 19, 1932

In Banc.

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

Action by Charles A. Simmons against the Washington Fidelity National Insurance Company. From judgment for plaintiff defendant appeals.

Affirmed.

Milton R. Klepper, of Portland (J. A. Burleigh, of Enterprise, and Robert W. Gilley, of Portland, on the brief) for appellant.

Max Wilson, of Joseph, for respondent.

RAND J.

This is an action at law to recover indemnity under an accident and health policy issued by the defendant company to plaintiff for an accidental injury sustained by plaintiff.

In the first answer filed by the defendant, it set up an equitable defense, and prayed for the cancellation of the policy. After a hearing thereon, a decree was entered in the court below denying equitable relief and directing that the action proceed at law, which decree was affirmed by this court in 136 Or. 400, 299 P. 294, 296.

The defense sought to be interposed on the equity side of the court was that the application made by plaintiff for insurance contained false answers and misrepresentations made by plaintiff for the purpose of obtaining the insurance. The plaintiff, on the other hand, claimed and offered proof tending to show that such false answers and misrepresentations as were contained in the application were written therein by the agent of the defendant company without plaintiff's knowledge or consent, and that plaintiff, by reason of his inability to read the application signed by him, had no knowledge of any false statements in the application, and that, the mistakes and false answers being the acts of the company's agent, the defendant was bound thereby, and could not avoid payment of the indemnity provided by the policy on that ground alone.

After the cause had been remanded to the court below, the defendant filed an amended answer, setting up this identical defense as a defense in the action at law. The cause was then put at issue and tried before the court and a jury, and plaintiff had verdict and judgment for $600 as indemnity and $150 as attorney's fees, and defendant appealed.

The defendant assigns error upon numerous grounds, but for the most part the questions presented here were considered and decided upon the former appeal. A careful consideration of the evidence offered in the former trial shows that the facts in evidence upon both trials were substantially the same. It is a general principle of law and one well recognized in this state that, when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review. Powell v. Dayton, S. & G. R. R. Co., 14 Or. 22, 12 P. 83; Bloomfield v. Buchanan, 14 Or. 181, 12 P 238; Thompson v. Hawley, 16 Or. 251, 19 P. 84; Kane v. Rippey, 22 Or. 299, 29 P. 1005; Portland Trust Co. v. Coulter, 23 Or. 131, 31 P. 280, 282; Baker County v. Huntington, 48 Or. 593, 87 P. 1036, 89 P. 144; Oliver v. Synhorst, 58 Or. 582, 109 P. 762, 115 P. 594; State v. McDonald, 59 Or. 520, 117 P. 281; Williams v. Pacific Surety Co., 70 Or. 203, 139 P. 934; Rugenstein v. Ottenheimer, 78 Or. 371, 152 P. 215, Ann. Cas. 1917E, 953; De Vol v. Citizens' Bank, 113 Or. 595, 233 P. 1008; Reed v. Hollister, 106 Or. 407, 212 P. 367; Adskim v. Oregon-Washington R. & Nav. Co., 134 Or. 574, 294 P. 605.

It was held upon the former appeal that, since plaintiff admitted his signature to the application, he had the burden of proving that the false statements contained in his application were made without his knowledge, consent, or authority, and that, if he established that fact, he would be entitled to recover in his action at law. Hence, when the case was remanded to the circuit court for trial, the main question for decision was: Were those false statements inserted without plaintiff's knowledge, consent, or authority by the agent of the defendant? That question has been answered in the affirmative by the verdict of the jury, and hence, whatever doubt may have existed before the verdict, that doubt is now eliminated from the case. The only question remaining for decision is: Was there any error committed by the court which deprived the defendant of a fair and impartial trial?

Clearly under the issues made by the pleadings and our former decision, it was not error for the court to permit plaintiff to testify that he was illiterate and that he could neither read nor write except to sign his own name, nor was it error for the court to permit him to testify that the false answers contained in his application were written into the application by the agent who solicited the insurance without plaintiff's knowledge or authority. Defendant's agent, in filling in the application, was acting within the apparent scope of his authority, and, if he inserted therein false statements not made or authorized by plaintiff, the fact that he did so could be established only by parol evidence, and, if within the issues, parol evidence is admissible for that purpose. As said upon the former appeal: "Such evidence is not admitted to vary or contradict the writing, but is...