Opinion
Argued December 1, 1970.
December 23, 1970.
Appeal from Circuit Court, Lane County, ROLAND K. RODMAN, Judge.
REVERSED AND REMANDED.
Larry J. Anderson, Eugene, argued the cause for appellant. With him on the brief were O'Reilly, Anderson Richmond.
Joe B. Richards, Eugene, argued the cause for respondent. With him on the brief were Luvaas, Cobb, Richards Fraser.
Plaintiff brought this action to recover benefits under a policy of insurance issued by defendant covering loss resulting from accidental bodily injury. Plaintiff appeals from a judgment on a verdict in favor of defendant.
Plaintiff injured his back as a result of a fall from the roof of a house. He sought recovery from defendant under its policy for disability resulting from this injury.
Defendant interposed an affirmative defense, alleging that plaintiff had represented in his application for insurance that he had not had any disease or disorder of the circulatory system when in fact he was, at that time, afflicted with Buerger's Disease (which is a circulatory disease). It was further alleged that this misrepresentation was relied upon by defendant and that it was material to the issuance of the policy.
Plaintiff's reply set up an estoppel against defendant, alleging that the application form was filled out by defendant's agent and that although plaintiff made a full disclosure of his disease to defendant's agent, the latter inserted the incorrect answer after representing to plaintiff that the information sought by the question was irrelevant under the circumstances.
The trial court, relying upon Comer v. World Insurance Co., 212 Or. 105, 318 P.2d 916 (1957), sustained defendant's demurrer to the reply. The case was submitted to the jury on the issue of materiality and the jury brought back a verdict for defendant.
Comer v. World Insurance Co., supra, held that an insured has the duty to read the application when it is returned to him with the policy and that he is bound by the material misrepresentations in the application.
After this case was tried and appealed, we overruled Comer v. World Insurance Co., supra, in Bunn v. Monarch Insurance Co., 257 Or. 409, 478 P.2d 363 (1970).
Since the issue of estoppel was not resolved in the trial of this case, the judgment must be reversed and the cause remanded for a new trial.
Reversed and remanded.