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Gas-Ice Corp. v. Newbern

September 20, 1973

GAS-ICE CORPORATION, APPELLANT,
v.
NEWBERN, RESPONDENT



Appeal from Circuit Court, Multnomah County. Patrick E. Dooley, Judge.

Kenneth M. Novack, Portland, argued the cause for appellant. With him on the brief were Hall & Novack and Bruce M. Hall, Portland.

Nels Peterson, Portland, argued the cause for respondent. With him on the brief were Jack H. Cairns and Peterson, Chaivoe & Peterson, Portland.

In Banc.*fn* Tongue, J.

Tongue

This is the second appeal to this court in this case. Upon the first appeal we modified a decree by the trial court in favor of defendant by holding that two insurance policies upon the life of defendant R. B. Newbern, but purchased with funds belonging to plaintiff corporation, were assets belonging to the corporation and that defendant Newbern, who had taken possession of the policies on March 6, 1968, must "pay to plaintiff the cash value of the two insurance policies as of the date of the appropriation of such policies by him" unless he should elect to return the policies to the corporation. (See Gas-Ice v. Newbern, 263 Or 227, 501 P2d 1288 (1972).)

Upon remand of the case to the trial court defendant elected to retain the two insurance policies. A further hearing was then held on January 9, 1973, "to determine the value of the two life insurance policies." That purpose was announced by the trial judge at the beginning of the hearing. Defendant then offered in evidence an affidavit by an officer of the insurance company stating that the net cash surrender value of the two policies as of March 6, 1968 was the sum of $9,010.84.

Plaintiff objected to that affidavit on various grounds. When asked by the trial court, however, to state "the legal basis for your objections," plaintiff's counsel said that:

"It is irrelevant because it does not determine,

does not come to grips, with the determination of what the asset value or the cash value of the asset is in accordance with the Supreme Court's determination and that it would constitute an impeachment, in effect, of matters already adjudicated by the Supreme Court in this matter."

That objection was overruled. No error has been assigned on this appeal to that ruling.*fn1 Plaintiff appeals, however, from the supplemental decree entered by the trial court at the conclusion of that hearing, in which it found the net cash surrender value of the two policies to be the sum of $9,010.84 as of March 6, 1968.

It appears that on December 13, 1972, prior to the hearing on January 9, 1973, plaintiff's attorney had delivered a letter to the trial court, with a copy to counsel, to the effect that as of March 6, 1968, certain loans had been made by the insurance company on these policies and that although the amount of those loans had been paid by plaintiff corporation to Mr. Newbern, he had not yet repaid the insurance company for those loans as of March 6, 1968, although he had done so at some later date. Accordingly, plaintiff contended in that letter that the amount to be paid by Mr. Newbern for the two policies was their gross cash surrender value as of that date, without deducting the amount of those unpaid loans. It also appears that at the hearing to determine the cash value of the policies the trial court apparently disagreed with that position by plaintiff.

In any event, plaintiff did not offer that letter in evidence at that hearing, subject to possible objection by defendant. ...


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