Greenberg v. German American Ins.

160 P. 536, 83 Or. 662, 1916 Ore. LEXIS 87

Opinions

Mr. Justice Burnett

delivered the opinion of the court.

1-4. It is unnecessary to consider any of the affirmative defenses. It is enough to give our attention to the sufficiency of the complaint upon which the action was tried. The original was supplanted by the new pleading of the plaintiff and cannot be considered in aid of his case: Wells v. Applegate, 12 Or. 208 (6 Pac. 770); Slemmons v. Thompson, 23 Or. 215, 220 (31 Pac. 514); Hume v. Woodruff, 26 Or. 373 (38 Pac. 191); Condon Nat. Bank v. Rogers, 60 Or. 189 (18 Pac. 846, Ann. Cas. 1914A, 101). The adequacy of the plaintiff’s statement of his cause of action may be questioned for the first time in the supreme court: Howard v. Horticultural Fire Relief, 77 Or. 349 (150 Pac. 270, 151 Pac. 476). If he would prevail in this form of action he must not only disclose the terms of the oral contract for insurance, but also, in cases where a policy has been actually issued, set forth the terms of that instrument so that the court may be able to judge whether or not it is a fulfillment of the alleged oral contract. It is true that the defendant appends to its answer as an exhibit a copy of what it alleges was a policy delivered to and accepted by the plaintiff as the contract between the parties and which differs in some respects from the oral contract stated by the plaintiff. This averment of the answer, however, is denied by the reply and hence is of no effect by way of aider to the defects in the complaint. It suffices not to aver, as in the amended complaint, that the policy tendered ‘ ‘ did not conform to the oral contract between the parties and was not a complete performance of said oral contract.” This is a mere conclusion of law and states no fact.

5. Again, it does not avail plaintiff to state his belief about the legal effect of the policy that was issued. Ignorance of the law will not excuse anyone. The principle is fully discussed in an opinion by Mr. Justice Wolverton in Scott v. Ford, 45 Or. 531 (78 Pac. 742, 80 Pac. 899, 68 L. R. A. 469). In Utermehle v. Norment, 197 U. S. 40 (49 L. Ed. 655, 25 Sup. Ct. Rep. 291, 3 Ann. Cas. 520, 524), it is said:

“It has been held from the earliest days, in both the federal and state courts, that a mistake of law, pure and simple, without the addition of any circumstances of fraud or misrepresentation, constitutes no basis for relief at law or in equity, and forms no excuse in favor of the party asserting that he made such mistake. Hunt v. Rhodes, 1 Pet. (U. S.) 1, 15 (7 L. Ed. 27); United States Bank v. Daniel, 12 Pet. (U. S.) 32, 55 (9 L. Ed. 989, 998); United States v. Hodson, 10 Wall. (U. S.) 395, 409 (19 L. Ed. 937, 940); Lamborn v. Dickinson County Commrs., 97 U. S. 181, 185 (24 L. Ed. 926); Snell v. Atlantic F. & M. Ins. Co., 98 U. S. 85, 90, 92 (25 L. Ed. 52); Allen v. Galloway, 30 Fed. 466, where Hammond, J., in reviewing the decisions of this court, says: ‘Whatever rule may prevail elsewhere, there can be, in the equity courts of the United States, no relief from a mistake of law.’ Drake v. Wild, 70 Vt. 52, 59 (39 Atl. 248). In that case the court said (p. 59): ‘That ignorance of the law does not excuse a wrong done or a right withheld; that relief from liabilities under the law, arising from a known state of facts, will be denied. But to these general rules there are exceptions, as where there is a mistake of law caused by fraud, imposition, or misrepresentation. We think it will be found that in most of the cases cited in these notes, and in Pomeroy, the party seeking relief was led into error by the action of the other party to a transaction, as in contracts and releases.’ Light v. Light, 21 Pa. St. 407, 412; Storrs v. Barker, 6 Johns. Ch. (N. Y.) 166 (10 Am. Dec. 316); Whitwell v. Winslow, 134 Mass. 343, 345; Alabama, etc. Ry. Co. v. Jones, 73 Miss. 110 (55 Am. St. Rep. 488, note, 19 South. 105).”

The complaint under consideration does not state facts sufficient to constitute a cause of action.

Whether by commencing action upon the policy and afterwards abandoning the same the plaintiff has failed to avail himself of the right of prompt rescission within the doctrine of Scott v. Walton, 32 Or. 460 (52 Pac. 180), or whether he has sufficiently pleaded a mistake in the contract within the doctrine of Hughey v. Smith, 65 Or. 323 (133 Pac. 68), or whether he has stated a ease of fraud against the plaintiff within the rule of pleading laid down in Anderson v. Adams, 43 Or. 621, 627 (74 Pac. 215), are questions which do not require consideration at this time. The judgment of the Circuit Court is reversed and the cause remanded for further proceedings. Reversed and Remanded.

Opinion Sustained on Rehearing.

Mr. Chief Justice Moore and Mr. Justice Benson concur. Mr. Justice Bean withhold his assent.