dissenting.
The majority, with two voices, has struggled for a result that satisfies some feeling that the plaintiff ought not to benefit from its act of selling (credit) life insurance to a dying man. The principal opinion holds that the case hinges on the meaning of the words "actively employed” and says they are clear and unambiguous and mean that the insurance policy only covers "one who is actually on the job and performing the customary work of his job.” That ought to cause some unease among the possible thousands of insureds who bought — or were sold — this kind of insurance. To achieve that result, Judge Thornton finds to control a quite different term: "actually at work.” He concludes that Philippi "wrongfully represented that Conrady was eligible for coverage and consequently should be held liable for the loss.”1 That is, Philippi is liable for having wrongly applied a clear and unambiguous term as to the meaning of which there are at least three views on this court.
*221The reader should read carefully Judge Thornton’s footnote 1 (which defines the sort of insurance involved) and then footnote 2, which contains the stipulated facts to which we are restricted. Note carefully the policy language in paragraph 5 and the carrier’s specific (and identical) advice to its agents in paragraph 6. Then, look at paragraphs 9-11, 132-14,16-17: Nothing in those stipulated facts charges Philippi with knowing that Conrady would never return to normal life or that he was terminally ill. Finally, the second paragraph of the trial court’s conclusions should be read.
The narrow, and only, issue is whether Philippi exceeded its authority as Investors’ agent, which was the issue tendered by the carrier’s affirmative defense. The case depends upon whether the phrase "actively employed” so clearly and unambiguously excluded Mr. Conrady from coverage that as a matter of law Philip-pi exceeded its authority when it issued the policy. If the term could reasonably be read in more than one way, and the insurance was properly issued under any such reading, the carrier cannot prevail on that affirmative defense.
Although Investors argues that the term did exclude from coverage a person of Mr. Conrady’s position, it has not explained either in its briefs or in its argument before this court what that disqualifying position was. The policy term has no single obvious meaning, obviously. Of course, Investors does not argue that in order for a credit life insurance policy to be issued the insured must be on the job and actively working at the time he signs the papers, but it does argue that "actively employed” means "going to work on a regular basis.” The group policy did not say "going to work on a regular basis”: It said "actively employed.” Moreover, Investors’ suggested (unam*222biguous) meaning would exclude a person who was off work because of a long or short term, but not terminal, illness or because he decided to take a few days off to go fishing, but who was still being paid. That is not a reasonable reading.
Investors’ fundamental argument is that under all the circumstances, Philippi should not have issued a policy to Mr. Conrady, at least not without first consulting Investors. Judge Buttler would decide the case by agreeing with this assertion, and I cannot agree.3 It overlooks the basic truths that the group policy established the eligibility requirements and that no duty to consult was ever imposed expressly or implicitly by the insurer. We ought not to say as a matter of law that Philippi exceeded its authority as established by the policy and the carrier’s written instructions.4 Both majority positions flatly contradict Cimarron Ins. Co. v. Traveller’s Ins. Co., 224 Or 57, 355 P2d 742 (1960).
I therefore dissent.
Schwab, C.J., joins in this dissent.Of course it is presumably the family or the estate of Mr. Conrady who will ultimately suffer the burden of having no insurance coverage to pay for the car.
For the purposes of this case it matters not that the employer’s letter was written after the issuance of the policy and after the insured’s demise. The point is that, despite the sources of the insured’s income, the railroad regarded him as employed at the time the insurance was written.
His first point ignores the fact that Philippi is the beneficiary under the policy. It is therefore entitled to the benefit of the Cimarron rule, infra. That Philippi was an agent should not obscure recognition of its capacity as plaintiff here.
Restatement 2d, Agency § 390 (1958) provides:
"An agent who, to the knowledge of the principal, acts on his own account in a transaction in which he is employed has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.” (Emphasis added.)
Investors concedes that provision is not applicable because it did not have discretion to reject any individual applicant for credit life insurance who met the eligibility requirements stated in the group policy which Philippi had purchased. As Investors noted in its brief:
"[Defendant was obligated to insure 'Any natural person who is indebted to [plaintiff] *** and who has not attained age 66 at the inception of the indebtedness, and who is actively employed *** at the time the indebtedness is incurred.’ ”