Weathers v. ICOA Life Ins. Co.
| Decision Date | 05 November 1969 |
| Citation | 254 Or. 361,460 P.2d 361 |
| Parties | Earl J. WEATHERS and Hazel J. Weathers, Appellants, v. ICOA LIFE INSURANCE COMPANY, as now substituted by defendant Executive Life Insurance Company, Beverly Hills, California, a California corporation, Respondent. |
| Court | Oregon Supreme Court |
Gale K. Powell, Bend, argued the cause and filed briefs for appellants.
Thomas W. Churchill, Salem, argued the cause for respondent. On the brief were McKinney and Churchill and Charles H. S. Howe, Salem.
Before SLOAN, P.J., and O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.
Plaintiffs brought suit for rescission of life insurance contracts and for the return of the premiums paid. The ground alleged was misrepresentation. The trial court, sitting in equity, found that the defendant had not misrepresented the policies. Plaintiffs appeal.
The selling agent who allegedly made the misrepresentations did not testify. Defendant's witnesses testified that he could not be found. For this reason there was no testimony directly contradicting plaintiffs' testimony of the alleged misrepresentations. However, the testimony of plaintiffs was quite indefinite and, in some instances, contradictory.
The first charge of misrepresentation made in the complaint is that the salesman represented: 'That 80 per cent of the profits of the Defendant company would be divided among the owners of said policies and 20% Of the profits would go to the stockholders of the Defendant company.' Defendant introduced evidence of a resolution of defendant's Board of Directors stating: 'Resolved: That it is the intent of the company to give participating policyholders 80% Of the profits realized on participating policies as a class, and the company will set up and maintain the necessary separation of accounts to effectuate the purpose.'
Plaintiffs contend that the agent's statement was a misrepresentation because he represented that 80% Of All the profits would go to holders of policies, whereas the defendant only provided that 80% Of the profits realized from participating policies, such as plaintiffs purchased, would go to participating policyholders. Plaintiffs also contend that the facts were misrepresented because the guarantee of a distribution of 80% Of the profits was not perpetual as a future Board of Directors could change the distribution.
Mrs. Weathers testified:
'Q What fantastic amounts did he refer to?
'A Well, there was 80 percent of all the--
'Q Of all the what?
'A The--well, the money that they would pay.
Mr. Weathers testified:
'Q Now, did he indicate that there would be a percentage of the profits from this policy divided among the policy...
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Hampton v. Sabin
...inferences to be drawn from it, are in dispute. Dan Bunn, Inc. v. Brown, 285 Or. 131, 145, 590 P.2d 209 (1979); Weathers v. ICOA Ins. Co., 254 Or. 361, 364, 460 P.2d 361 (1969). In this case, the trial court found that, despite the defendants' claims to the contrary, the plaintiffs were not......
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Myers v. MHI Investments, Inc.
...the contract. A suit for rescission of a contract is a suit in equity; thus our review is de novo. See Weathers et ux v. Icoa Life Insurance Company, 254 Or. 361, 460 P.2d 361 (1969); Lanners v. Whitney, 247 Or. 223, 428 P.2d 398 (1967); Stacy v. Smith, 244 Or. 336, 418 P.2d 32 As noted ear......