*1 Argued May reversed March Receivership In Matter CO. MUTUAL INSURANCE SUPERIOR Respondent, v. E-Z PAY PLAN, KORLANN, Appellants. INC. et al, 2d 428P. *2 Edward L. Ciarle,Jr., Paulus and J. Salem,

Norma appellants. argned With on canse for them & Marsh, Clark Salem. briefs were Special Attorney Paul D. Hanlon, Assistant Gen- argued respondent. the cause for eral, Portland, With him on the brief were Bischoff & Hart, Veazie, Hanlon, Portland.

Before Perry, Chief and Justice, McAllister, Lusk, Jus- Denecke Sloan, O’Connell, Goodwin, tices. J.

GOODWIN, Oregon Superior Plaintiff is the receiver corpora- Mutual Insurance an insolvent Wisconsin Co., Oregon corporations, tion. Defendants are two Man- Agencies, placed hattan which automobile liabil- Inc., ity insurance with and other insurance com- panies, Pay E-Z Plan, Inc., discounted time-payment contracts Manhattan’s customers as financing premiums. a means of their insurance Man- Pay appeal hattan and E-Z *3 decree favor of Su- perior’s receiver. Superior’s insolvency,

At the time of the account Superior Manhattan and between showed credits favor- (earned ing Superior pre- in the sum of $39,194.29 credits), favoring miums and other Man- credits hattan in the sum of $112,907.22.

Manhattan’s favorable balance included $30,663.63 premiums in unearned due Manhattan from Manhattan’s for distribution to customers as result regular effected in the course of busi cancellations Superior’s insolvency. prior to The ness remainder of balance shown to be in Manhattan’s favor was made up unearned that became “unearned” insolvency. upon Superior’s Holz v. Smullan, 277 F2d (7th 1960). Cir figures quoted outlining (In used facts have we illustrating solely purposes by parties for the adopt any legal of these and we do not their theories, accounting figures them as established or treat purposes.) insolvency, Superior’s when notified of

Manhattan, holding had been advanced cash was Pay This sum was in the sum of $46,991.36. E-Z Pay by prin- E-Z Manhattan and is returned to subject litigation. cipal matter of this money Pay in- advanced E-Z each Pay assignment to E-Z stance secured Pay policy. E-Z therefore, insurance was, customer’s any ultimately entitled to unearned by Superior might refunded in the event of the be any assigned Pay. E-Z cancellation so prior Superior’s all material At times insol- vency, Superior settling and Manhattan had been ac- arrangement with each other under an counts known industry insurance as an “account current, seventy days.”

An current is defined as “the insurance account agent’s policies statement of written and during pre returned on cancellation net month, being paid Apple miums recorded whether or not.” 16 (1944). § Law Practice Insurance at 229 man, type are not Such accounts unusual of business being Bushnell, in this case. See conducted Receiver App (1962). al, et 133 Ind NE2d 340 474, 183 Krafft seventy days,” according current,

An “account testimony, thirty-day is the same as “account cur- *4 seventy except days rent” that the has after a any, if balances, issued which to remit net may be the insurer. due deny insolvency The receiver does not that if had not Manhattan would have intervened, been entitled periodically by to continue to settle its account re- mitting only Superior the net balances credited to on any given settlement date. The record shows, ex- ample, days insolvency that ten before the occurred, Superior Manhattan had forwarded to' all sums due Superior accounting system employed. under the doing

Under the method of business followed Superior, Manhattan and Manhattan received from Superior (or Superior) deducted from due pre- credited to its customers’ accounts unearned resulting (As apparently miums from cancellations. the custom in the these trade, unearned were rarely returned cash customer, but were ordi- narily satisfy used in the customer’s behalf either to Pay his debt to E-Z or to obtain new insurance to replace the insurance which had been canceled. See, involving practices, Downey for a case similar Humphreys, App (1951).) 102 Cal 2d 227 P2d testimony in the case at bar indicated that if cancellations in the most, all, course of business actually usually were made Manhattan, because of nonpayment of a installment when due. Superior apparently allowed Manhattan unlimited dis- making cretion in such cancellations. These cancella- only practical tions were the method available Man- encourage payment hattan of installments. In case Manhattan of such a would cancellation, credit Su- perior with the amount of the refund and then over Pay premium. money E-Z the unearned No would Superior move from but the Manhattan, “account current” would show that the had refund reduced the amount due from Manhattan. *5 theory Manhattan was a trustee

On the that unconditionally money, all thus bound unearned, earned or received from holders to Superior’s Superior’s receiver notice of insol- vency, an order to cause the receiver obtained show Pay. against ap- E-Z both Manhattan and The order parently according theory was drawn to the receiver’s payment Pay E-Z that Manhattan’s after notice insolvency was a conversion and that the receiver money Pay’s could therefore follow the into E-Z hands by treating Pay E-Z either as converter or as a constructive trustee. Pay

The record shows that E-Z and Manhattan had certain officers and shareholders common. The two they closely together, defendants concede that worked producing Manhattan the insurance business and E-Z Pay financing premiums. attempted The business satisfy young the insurance needs of or “rated” virtually difficulty buying all of whom drivers, had premiums In insurance. such a business, and the high. premiums risks were Most of the had to fi- be paid monthly nanced and installments. considering rights parties

In in this case, Pay we deem irrelevant that Manhattan and E-Z ownership shared common and were more or less under management. pleading common There has been no or any proof impropriety doing their method of Accordingly, corporations, business. two for the purposes they case, of this are treated if were strangers acting ordinary in course of business. defended the

Manhattan show-cause order as- serting right argued of setoff. Manhattan that as Su- against any perior’s it could off creditor set claims of Superior all sums due Manhattan on behalf of its cus- according accounting employed to the method tomers prior Superior at all times Manhattan and. between insolvency, insolvency. no doubt there is Prior all unearned had treated periodic money Manhattan. In the settlement “due” always Superior had allowed of their mutual account, premiums against all unearned Manhattan to set off striking for Manhattan in to be accounted them. net balance between insolvency Superior, Upon the consideration paid Manhattan’s theretofore for the *6 policy policy or and holders their holders failed assignee entitled to the return of the unearned became Notwithstanding premiums. portions the fact Pay, assignee, the ultimate “owner” that E-Z as an was premiums, as a Manhattan, of most of the unearned purpose Superior’s creditor for the remained broker, making settling and accounts with eventual policy holders. disbursement disregarded the estab- The trial court, however, practices Superior, of Manhattan and lished business upon decided on dissimilar facts to and relied cases a trustee for both was, effect, hold that Manhattan premiums. the unearned The result the earned and make Manhattan a converter of the $46,991.36 was to Pay. Manhattan returned E-Z This was error. was a a entitled to setoff. creditor, through usually a allowed where, Setoff parties separate in two become course of transactions, parties If one of the becomes in debted to each other. paying in full instead of his debt solvent, other, only receiving a what is owed is held him, dividend on any, between debt and the in if his difference, for the a to lie in The reason for such rule is said solvent’s. contrary injustice Hamilton, rule. Carr (1889). L32 Ed 669 255, 295, 9 S Ct US Between solvent setoffs are a mat merchants, Bohnenkamp bookkeeping. Emerick ter of routine Co. v. (1965). Assoc., & 242 Or 409 P2d When insolvency party exercising occurs, setoff, preference compared most obtains cases, cred equity itors who do not have setoff. Courts of do not regard preference discriminatory such a or unfair general general to other creditors. In essence, creditors only are entitled to look to the favorable if balance, any, prefer as an asset of the insolvent’s estate. The ential effect of like that of other forms of setoff, secur ity, recognized prevented is well has but setoff being bankruptcy. favored in Emerick See Co. v. Bohnenkamp supra, Assoc., & and 4 Collier, Bank ruptcy (14th 1964). notes 18 & 19 ed 708, § 68.02,

Ordinarily, in the absence of a statute or an agreement contrary, company to the when an insurance policies exclusively issues holders in reliance agent produced the credit of the who the business solely payment, and looks to that as the practice record shows was the case bar, the company producing agent and the are creditor and debtor. Wallace v. American Co., Ins. 116 Or Life (1925). P 195, *7 relationship, upon

aIn debtor-creditor setoff insolvency recognized accepted of either is a and practice. Downey Humphreys, supra. v. See On the relationship principal other where the hand, is that of agent, only and with to be remitted when and producing agent if collected, is treated aas trustee right has no to deviate from the agency agreement by setting any terms of off of against Bohlinger his the trust fund. claims v. Ward & (1956). 1 Co., 20 NJ 120 A2d To like see effect, Mayville Bohlinger Realty Company, v. 135 NYS2d App (1954), opinion, affirmed without Div (1955). NYS2d 509 agreement no As there was written be noted, Superior their tween and Manhattan rela tionship Oregon can No be documented. statute char relationship a such as between acterizes existed Su Accordingly, perior matter and Manhattan as a of law. relationships legal effect between and its and Manhattan and between Manhattan cus doing from manner of tomers must be established their doing clearly The method of a business. business relationship prior all times mutual debtor-creditor insolvency. to phenomenon insolvency not, did itself, relationship change to Manhattan’s

work a in Su- relationship perior, its nor in custom- Manhattan’s the extent need not decide this case ers. We liability holders, Manhattan’s to its that But matter is before us. insofar Manhattan’s Superior are clear with it is that concerned, accounts Superior’s prior had at all times Manhattan a insolvency a setoff. exercise liquida principle

It is well-established occupies position no better than his in or receiver tor insolvency. occupied time of at the solvent (1954). Zanger, NE2d He takes 306 NY 228, 117 v. rights property of the one for whom he acts, equities subject and defenses same others insolvency. Downey Humphreys, that existed before supra. Manhattan was entitled set off hold that

We moneys Superior against premiums from due The net result leaves Manhattan Manhattan’s hands. Superior. general against creditor as a with claim Reversed. *8 dissenting. J.,

O’CONNELL, majority opinion The source of the error the parties employed assumption that because a the particular bookkeeping in ad- device for convenience they necessarily justing their mutual accounts stand relationship. in a The solution of debtor-creditor problem upon super- turn in this ease should not parties up particular ficial set fact account- ing system adjust important their in- accounts; quiry permitting is whether there is sound reason for set-off under circumstances of this case.

Assuming, majority as the that the does, automatically parties set-off once follows are question the relation of debtor I creditor, court’s conclusion that a debtor-creditor relation was created in this case. It is true that Manhattan was obligated premium the full amount of the even though yet that amount had not been received from question the insured. But the is whether this is to be obligation looked as an of Manhattan to finance by Superior simply the sale of or as a con- insurance funneling venient method of the installment policyholders through Superior from the Manhattan to funneling Superior the unearned from through policyholders. Manhattan to the Superior,

It is to be borne in mind that not Man- was the insurer who undertook the risk hattan, of loss Superior in case of an accident and it was and not premium Manhattan who entitled to receive undertaking exchange this risk. After the of con- (through sideration between and the insured Manhattan), offices Manhattan had no financial interest in the transaction. If there was a it fell loss, upon Superior; if there was a the un- cancellation, policyholder. (It earned went to the im- premium was effected the return of the material that *9 Manhattan). Receiving through agency no bene- other than its commission, from the transaction fit regard pay- reasonable to Manhattan’s does not seem premium as an extension of the full amount of ment liability imposition of a debtor and an as of its credit of insurance. the sale majority policies were The states that issued exclusively agent.” upon the credit of the “in reliance merely Superior only that shows looked The evidence premiums. payment Manhattan for But as to transmitting premiums long Manhattan was as necessity policy- Superior, look to the there was no say payment. Superior that holders for This does recovery unpaid precluded an would be from the policyholder earned from a if Manhattan agent. were removed as Superior in a

If Manhattan and were debtor-cred- relationship, majority how would the characterize itor (prior insolvency) un- interest in the Manhattan’s Certainly premiums Superior? Man- earned held premiums— hattan had no beneficial interest such they belonged policyholders. pre- Yet these to the bookkeeping arrangement miums are used in the obligation against Manhattan’s credit account to Superior. system adopted bookkeeping explained

The is best adjusting policyhloders a method of the interest of premiums and the in- in the unearned interest policyholders received from surer agent. and held principle pre

The eases treat as axiomatic the that agent pay paid to an insurance constitute a agent miums and that holds such insurer, ment to the fiduciary principal, aas for his the ins urer. ‹ majority apparently concedes this to be general argues rule but and Man relationship hattan created a debtor-creditor in sub principal-agency relationship. stitute for the usual As already modify I have this intent to noted, normal relationship majority derived from the fact parties adopted arrangement that the an known in the seventy insurance business as an “account current, days.” But the courts have not deemed this kind of procedure accounting change sufficient the basic relationship principal agent. Company, 120A2d v. Ward & NJ (1956) example. will serve anas In that case the obligated monthly to account for collected as in and, the instant “extended *10 case, credit paid pre some of its customers and on occasion company collecting

miums to the before them from the policyholders.” opinion by In an written Justice William J. the court Brennan, Jr., held that in the agent surer’s was not entitled to a set-off the liquidation agent’s of the insurer. In answer to the argument bookkeeping adopted by that the devices parties relationship the converted the into that of debtor and creditor, the court said: departures fail “We to see how these from the procedure settling letter of the for accounts and

handling contemplated by agreement the operated destroy principal the basic relation of agent agreement. established the The more ‹ See Zanger, 228, cases cited in v. 306 NY 117 NE2d 338, (1954). 341-342 agent’s fiduciary responsibility The to hold collected apart City for insurer exists from statute. Twin Fire Insurance Green, 532, (8th 1949). rehearing, Co. v. 176 F2d 535 Cir On 177 (1949), F2d creditor prior finding 626 the court reversed the a debtor- relationship grounds on of insufficient evidence that fiduciary relationship had been transformed. departures evi-

logical that, best, inference is greater convenience ‘For the solicitude dence serving although Agent/ better doubtless the convenience company we well. Moreover, of the taken significant has not the defendant it in this that deem issue pellate 41] Ap- of the observation court with the N.J.Super. [34 A.2d 583, that Division reported like course that a cases disclose ‘The accounting procedure not uncommon setting, Certainly in the entire insurance business.’ agency agreement taking and the into account consistency practices seeming cus- with the industry usages the situ- the insurance toms comparable to that State at all ation is not Company, Telegraph 149, 17 N.J. Union Western (1954), upon defendant 110 A.2d paraphrasing chiefly the a case, for this is not relies, ‘when the court is able that decision test of agent] [the say parties to have intended that carry- [premium] in the use of the the unrestricted only ordinary ing and to be liable business on of its [company].”’ amount to the similar p. 3. A2d at Sons, 25 v. Edward Brown & Cal2d

In Garrison obligated (1944), agent P2d 377 monthly covering policies all written, accounts render amount and to remit the thereof or cancelled renewed following day that in month of the fourth the fourth was re was written. which the business original payment sponsible of all and advance policies written it. It was held on parties adopted accounting procedure did *11 relationship. › give rise to debtor-creditor › The premiums provided agreement expressly all col agent fiduciary agent the “as a the were be held lected to 379). company.” (154 P2d at the until delivered to trust agreement by agent pre express hold the to this existence of distinguish at to the case Garrison from miums does not serve to bar because duty repeatedly agent’s that the it has been held contrary. agreement in the absence of an to account arises Commenting accounting practice on a similar generally among companies the “custom insurance agent deposit permit such collections agent’s individual bank account and remit for same (176 City 535) at court in F2d Twin therefrom,” (8th Fire Ins. v. Green, 532, Co. 176 F2d 534-535 Cir 1949), said: agency-contract provisions

“These conventional are not with statute, inharmonious and without being other indicative elements situ involved they simply legal-significance ation amount in an allowance of in which make time col implied guaranty part and to an lections on agent premiums neglects for such he or as fails ninety (90) days’ to collect on or before from the policy. obligation issuance This collateral any for which he subject longer has made of a credit-extension or as to he has for other reason failed in performing duty his to collect would not a matter accountability of law affect his status under the for statute such as he had in col fact lected.” agent’s “accountability

The court’s reference to the premiums” status under the for such statute was not principle intended to confine the to cases where stat- provides accountability, ute as the court for, went say, on to * “® * special statutory even without such

provision has generally as exists in the law Missouri, recognized agent, charged an insurance with duty collecting granted and not person- the ally, his contract to use the funds having prima fiduciary responsibil- facie a ity. Appleman, See Law Insurance and Practice, pages § In re 225; Co., Mason Conn., D.C. 254 F. 164.” 176 F2d 535. *12 Zanger,

Bohlinger v. 306 NY NE2d 228, 117 by majority (1954) supports taken the in the view the Judge dissenting opinion present in But Puld’s ease. Bohlmger clearly the discloses the error of court’s position. it the The court reasoned since was practice for the common in the insurance business solvency during to credit the for un insurer to the broker had remitted earned which policies, policyholders of the the cancellation liquidation the insurer. set-off existed after of of reasoning Judge this the error of Fuld disclosed following paragraph: may is termi

“It well when that, be accounts nated settlement of broker’s before ‘general practice’ ‘accepted or with the it is insurer, insolvency usage,’ or an order in the absence of liquidation, such ac to deal with ‘for brokers of prorata by remitting company the to the counts * ** date termination earned to of por by refunding the insured the unearned pages (opinion, N.E. N.Y. at 232-233, tion’ 2d 340). this that But does not follow from it may practice once insol a broker adhere his vency liquidation en an order of intervenes or fully pre solvent, insurer is tered. When nothing sumably pay all on turns claims, able capacity in which he on the or act, the broker’s refunding to the in unearned acts, refund, not made the Had broker sured. repay so; of have done would, course, insurer ment in the most convenient manner handled bookkeeping matter. no more than a and involved insolvency, rights however, the With advent taken into account, and, creditors must be important to decide it becomes time, the first belong premiums held the broker whether the However current or to the insured. insurer practice may accepted be, therefore, or dealing a solvent in- with the funds of brokers light question surer throw no whatsoever on the can way presented appeal, for in- this it is no payment with the rule that consistent the broker payment to the insurer.” 117 NE2d at 344-345. support adoption Other also the view that the cases accounting system parties permits an *13 payment agent postpone and which has the effect permitting agent during collected use funds agency an interval does not convert an into a debtor-creditor ionship. ﬁ relat Brooklyn As in a was observed note 21 L Rev (1955), commenting 282, 284 on another but related aspect accounting agent, between the insurer and its practice merely bookkeeping “this a convenience, and as such be should subordinate rules of law governing parties.” the relation of the majority opinion

The relies Wallace v. Amer (1925) ican Ins. Co., 116 195, Or 237 P 974 Life support view that its Manhattan and were in relationship. a debtor and creditor The in- case is apposite. The court held that collected ﬁ Harrison Birrell, (1911); Maloney v. 58 Or 115 P 141 v. App2d Co., Rhode Island Insurance 115 Cal 251 P2d 1027 (1953); (1873); Young, Monitor Isurance Co. v. 111 Mass 537 Clay Eagle Reciprocal Exchange, (Mo 1963); v. 368 SW2d 344 Clay Independence Co., (Mo v. Mutual Insurance 359 SW2d 679 1962); Mayville Realty Co., (1954), v. 135 NYS2d 865 (1955). affirmed 141 NYS2d 509 early English From an date the held courts have absence any portion against del of a credere a broker could retain commission not of collected than earned other commissions Eng Forrester, an insolvent underwriter. Minett v. 128 Rep (C.P. 1811); Smith, Eng Rep (K.B. 441 Parker v. 104 1133 1812); Lyon, Eng Rep (C.P. 1812); Goldschmidt v. 128 438 Eng Robertson, Rep (C.P. 1816). Houstoun v. 128 1109 In Wilson Eng Rep Creighton, (K.B. 1782) Dubois, v. Grove Eng Rep (K.B. 1789) recognized was set-off but in those cases there was a del credere commission. agent “belonged prop- to and was the insurance erty company. defendant” insurance The amount of the agent due from the to the insurer was referred to as an but term to de- “indebtedness” was used relationship a debtor-creditor in the usual sense. scribe agent question The before the court whether the employ had into the breached covenant not enter company to the of another insurance while indebted claim insurer. The court held that this “Inasmuch discharged by payment of a certain could have been money, of the sum constituted debt favor (116 201) against plaintiff,” defendant and Or meaning within covenant. majority opinion can be described

The error in the yet way. majority first finds a debtor- another relationship between the insurer and its creditor appli- mechanically pronounces that set-off then aas matter of cable if the latter follows the former has its source But set-off is doctrine which course. *14 applied equity between a debtor in and will not be it equitable if not do so. it is and creditor permit present equitable not set-off It is premiums in unearned case. If it is held property agent’s insurer, not hands are pay- policyholders had who made follow that the would premiums recover would entitled to these be ment of paid agent them. But the full amount from the policyholders re- had been unearned whose required to share with would be mitted to insurer simply Thus, insolvent insurer. other creditors of the payment the insured to of because person, through insur- a third is made the insurer policyholders agent, are over favored others, ance some purely from the fortuitous arises a favoritism which premiums paid by circumstance that the the insured yet had been remitted to the insurer. To avoid group preference policyholders this in favor of one of over the better another, cases hold that the reasoned insurer is entitled to recover the unearned agent’s possession in the time of the insurer’s insolvency. point clearly made Garrison v. Brown & Sons, Edward Cal2d 154 P2d 473, 377, (1944) opinion by Tray where the in an court, Justice said: nor,

* * recognize This court could not a claim agent pre- full for satisfaction to whom the preferential paid creating mium was without happened pre- for those miums to an itors, who insureds their expense at the of all other cred- including the other insureds.” of The statement Justice William J. Brennan, Jr. Co., v. Ward & 20 NJ 120 A2d 331, (1956) particularly appropriate present to the case:

“* * * company being The insurance now in- solvent, allowance of the claimed credit would actuality preference expense sanction a at the policyholders other and creditors —and indeed what precise purpose defendant did was done making appears its It customers whole. neither argued nor is it that defendant’s conduct was in- plainly fected with the taint moral but fraud, attempted brought what was here cannot be within authority practice developed of to facilitate settling opera- the tion of accounts in the routine of the going Casualty business. See American Security Insurance Co. & v. Arrott, 180 Pa. 36 1897). (Sup.Ct. A. 319 The claims of the 150 policyholders for unearned must stand similarly with like claims of other holders *15 situated.”

188 view. ﬂ Comments express same the cases

Other uniformly holding periodicals legal criticize the cases right the has for reason set-off, the the to that allowing preference to the effect of a that set-off has policyholders. (cid:176) certain agent, majority opinion the holds that Since the pre- but unremitted can treat the collected Manhattan, purpose the of what are as set-off, miums its own paid premiums? policyholders rights in who such policy- put reasoning to would seem The court’s miums Collected L Rev 638 at ness Wheeler of receiving as earned NE2d brokers liquidator] sharing self [which (cid:176) liquidation the funds who that unearned though, the broker who remits amount Fuld, either fairs, to inquire will have to ﬂ All brokers have transmitted an offset a In “* * * requires protect “Today’s preferred policyholders broker, requires equal employed v. J., and will refunds result Note: well the customers at whose Clark, guarantees dissenting insolvency.” rights the unearned an innocent against and (1953), Clark under decision await Rights recognized creditor from the 306 him can receive immediately losses which other this Broker who broker [the then expense SW2d makes his be author policyholders may, rule be privileges have of the broker present place agent] orderly liquidation Insurer’s achieved policyholders, repayment own indebtedness insured. concludes, promptly in his Dual the collected premium. 158, ^[*] * securing on this paid company’s points also, their return superficial point 159-160 could decision, applied with other protection *. Since the the insurer Liquidator only However, over does insurance.” out policyholders with an “equality as follows: Most to his customers Zanger, who Agency Status, 54 and (Tex if only assets assignment total lest may thereafter in 18 consideration, tardy delays strangely, pleading of disservice policyholders, relative Civ the former to Unearned so directly, conduct the insurer’s permit. company’s being is Albany the Receiver.” much of their * * App 1957). or expeditiously, his treatment must NY pertinent of make him these defaulting inequities therefore, remittals; or whose afforded. to those 228, the un the full Not * bear private appear L Rev Colum to the avoid sums fair Pre rule af- so, *16 position of the holders creditors these circumstances. then What would result be if the agent rather than the insurer were insolvent? This is question posed by the same J. in his dissent Fuld, Zanger, supra 117 NE2d at 345. There he said:

“* * * logic Under rationale of the present if the insurance broker were decision, to be- bankrupt, pre- come or if he were to convert the miums in his hands, insurer could cancel the and throw the loss the insured so far the unearned as the other speak is concerned. That ‘way’ coin, side other —so Judge puts we must DYE travel, if, —that (opinion, page 340), 306 N.Y. 233, 117 N.E.2d construing two-way the court is the statute as ‘a proposition’.” majority

It is that the obvious of the court has not thought through problem presented by this case, consequence unjustified preference of which an important, reports and, created more we have in our analysis problem case its lack of relationships leaves confusion the which exist be- general tween the insurer, the insured and the insur- agent. ance

The decree the trial court should be affirmed. joins in this dissent. J., Denecke, the event of (1955). (1954); 39 Minn L Rev 787 See (1955); Notes Brooklyn L Rev 282