Zimmerman v. Union Automobile Ins. Co.

• Decision Date: 23 September 1930
• Citation: 133 Or. 600,291 P. 495
• Parties: ZIMMERMAN v. UNION AUTOMOBILE INS. CO.
• Court: Oregon Supreme Court

291 P. 495

133 Or. 600

ZIMMERMAN v. UNION AUTOMOBILE INS. CO.

Supreme Court of Oregon

September 23, 1930

Department 1.

Appeal from Circuit Court, Clatsop County; James T. Brand, Judge.

Action by Norma Zimmerman, alleged beneficiary upon a policy of automobile casualty insurance, against the Union Automobile Insurance Company. The defense urged against recovery is cancellation of the policy. At the close of the evidence both parties moved for a directed verdict. The motion of the plaintiff was sustained, and the defendant appeals.

Affirmed.

Earl F Bernard and Henry E. Collier, both of Portland (Collier Collier & Bernard, of Portland, on the brief), for appellant.

C. W. Robison, of Astoria, and Hy Samuels, of Portland (Julius Cohn, of Portland, on the brief), for respondent.

ROSSMAN J.

The assignments of error present no issues of pleading and appellant's brief does not argue that the court erred in its reception of the testimony; hence we shall proceed directly to a statement of the uncontradicted evidence for the purpose of determining whether the court erred when it directed a verdict in favor of the plaintiff. April 11, 1927 one H. L. Johansen, who was the owner of an automobile and who sought to obtain protection against claims for injuries inflicted upon others through its operation, procured from the defendant a policy of casualty insurance in the amount of $5,000, which contained among others the following provision:

"No action shall lie against the Company to recover for any loss or expense under this policy unless brought after the amount of such claim for loss or expense shall have been rendered certain either by payment of final judgment against the Assured after trial of the issues or by agreement between the parties with the written consent of the Company. It is a condition of this policy that the insolvency or bankruptcy of the named Assured shall not release the Company, and if because of such insolvency or bankruptcy recovery cannot be sustained, the judgment creditor shall then have a right of action to recover against the Company the amount of said judgment to the same extent that the named Assured would then have had to recover had the Named Assured paid the judgment, but in no event shall the Company's liability exceed the limits expressed in this policy or its obligation to the Assured."

November 28, 1927, the defendant instructed its agent Mr. E. P. Hawkins to discontinue its business in the territory where Johansen resided and to cancel all of its policies in that district on or before December 5, 1927. Hawkins apparently desired to retain his clientele, and accordingly effected an arrangement with the National Union Indemnity Company which enabled him to issue policies in the latter company which would protect those whose policies he was about to cancel in the defendant company. Because of the time consumed in canceling the old policies and substituting in their stead new ones, Hawkins did not prepare for Johansen a policy in the National Union Indemnity Company until December 29, 1927. The policy which he drafted on that day in the National Union Indemnity Company afforded to Johansen substantially the same protection which was provided in the policy issued by the defendant, and recited that it became effective December 29, 1927, at 12:01 a. m. The testimony does not disclose the precise day when it was delivered to Johansen; but the defendant concedes that delivery did not occur until after the accident had happened which injured the plaintiff. Johansen testified that he knew nothing about the new policy and the intention of the defendant to cancel his existing policy until "two or three days after" the accident; appellant's brief states that it was delivered "a short time after the collision." Defendant's policy provides: "This policy shall be cancelled at any time * * * by the company by giving five days notice of such cancellation either by registered letter directed to the insured, at his last known address, or by personal written notice." No written notice of any kind was given to Johansen, and the first intimation which he received of the intended cancellation was when Hawkins handed to him the policy in the National Union Indemnity Company and expressed orally the desire of the defendant company that its policy be terminated. At that time Hawkins gave Johansen the rebate for the unearned premiums, which were thereupon applied upon the new policy, and some days later Johansen paid the balance. The transaction just mentioned occurred in the latter's place of business, and due to the fact that the policy in the defendant company was at his home he did not surrender it, although he promised to do so promptly. When a claim was presented against him on account of the accident, he decided to retain both policies, and at the time of trial produced both. On the night of December 29, 1927, Johansen, while operating his automobile, injured the plaintiff. Thereafter she sued him and on October 3, 1928, recovered a judgment for $16,864.86 which she has been unable to collect due to Johansen's insolvency. After a writ of execution had been returned unsatisfied, she brought the present action to recover from the defendant $5,000, the amount of the policy. The defense interposed is that the insurance has been canceled. Johansen notified the defendant of the accident before Hawkins delivered the new policy to him. It is agreed that this case is not affected by 1927 Session Laws, chap. 216, p. 263.

It is evident that Johansen acquiesced in Hawkins's effort to substitute the one policy for the other; he accepted the second policy, the rebate, promised to return the first, and a few days later paid the balance of the premium. It is true that he did not surrender the first policy, but this omission is fully explained by the circumstances which we have already related. It is plain that Johansen did not intend to provide for himself two policies of insurance. If the facts just related were the only circumstances before us, Finley v New Brunswick Fire Ins. Co. (C. C.) 193 F. 195, relied upon by the defendant, would be applicable and recovery could not be had upon the policy executed by the defendant. But a very material distinction exists between that case and our present one. The policy now sued upon, in our opinion, is one which undertakes to afford protection against liability and makes as its beneficiaries, in the event of the Assured's insolvency, individuals negligently injured by...