184 P. 562 | Or. | 1919
“ Q. As a matter of fact, this policy involved in this action was issued to you because you wanted it, was it not?
“A. Oh, yes, we wanted the policy.
“Q. And you made application to the proper person to get it, did you not?
“A. We gave them a chance to figure on the business; yes, sir.
*688 “Q. And at the time of the issuance of the policy I suppose you told them what you wanted was employers’ liability insurance?
“A. I think I did; yes.
“Q'l And the nature of the property that you had?
“A. I don’t think I went into details. They were familiar with it themselves.
“Q. You didn’t go into any of the details at all as to any of the conditions that should be placed in the policy?
“A. I did not.
“Q. You knew that the company to whom this application was made was a company that was issuing policies of that kind?
“A. Yes, sir.
‘ * Q. And you simply made application that a policy —an employer’s liability policy — be issued to you covering your plant, without going into any details at all as to any of the conditions or statements provided in the policy?
“A. I did.”
In connection with this testimony, it is thus laid down as a rule in Cleveland Oil Co. v. Norwich Insurance Society, 34 Or. 228 (55 Pac. 435), in an opinion by Mr. Justice Moore :
“So, too, the law will presume that the minds of the parties met upon an agreement containing the terms and conditions of a policy such as is usually issued by the contracting insurance company covering like risks: 1 May on Insurance (3 ed.), §23; Barre v. Council Bluffs Ins. Co., 76 Iowa, 609 (41 N. W. 373); Smith v. State Ins. Co., 64 Iowa, 716 (21 N. W. 145); Hubbard v. Hartford Ins. Co., 33 Iowa, 325 (11 Am. Rep. 125); De Grove v. Metropolitan Ins. Co., 61 N. Y. 594 (19 Am. Rep. 305); Eureka Ins. Co. v. Robinson, 56 Pa. St. 256 (94 Am. Dec. 65); Fuller v. Insurance Co., 36 Wis. 599; Salisbury v. Hekla Ins. Co., 32 Minn. 458 (21 N. W. 552).”
“No insurance of the kinds specified in Statement 12 proposed by or on behalf of the Insured has been declined, nor has any such insurance been canceled or the renewal thereof refused, except as follows.”
If no exception followed, this statement must be taken to be absolute and, being a warranty, must be strictly true as stated: Buford v. New York Life Ins. Co., 5 Or. 334. If the party making this absolute statement would qualify it by an exception, it is incumbent upon him to state the exception, because it is presumably within his knowledge. In this instance the testimony .shows that the exception was within the knowledge of the assured but was unknown to the insurer. Consequently, it is immaterial whether or not
But aside from this possibly technical ground, the weight of the testimony is in favor of the proposition that the alleged mistake was not mutual, and that the most which can be said of the situation is that the plaintiff did not notice that provision in the policy while the defendant designedly inserted the words complained of and purposely used the form of policy employed. To reform the policy so as to make its legal effect different from what it appears on its face under the circumstances would be to make a new contract for the parties contrary to the understanding of at least one of them. The testimony on behalf of the plaintiff falls short of pointing out with clearness what the original agreement of the parties was. It only ■states in substance that the words “no exceptions” were not to be put into the contract and that nothing was said abóut previous insurance. What, if anything, in the main, was to be affirmatively stated as the binding agreement between the parties is left to conjecture. But, above all, the preponderance reveals that the mistake, if any, was not mutual. The result is that the decree of the Circuit Court must be affirmed.
Affirmed.