916 HOME INS.. CO: OF NEW YORK V. JONES. [192 . . . OME INSURANCF COMPANY OF NEW YORK . V. JONES. 4-4327
Opinion delivered June 29, 1936. INSURANCE—CANCELLATION . OF. POLICY.—Where, in an action on an insurance policy on an automobile, the policy contained a 'provision to the effect that the policy might be cancelled on five days' written notiee addressed to' in§ured at his address as disclosed in the policy, and, on July . 15, the insurer elected to cdncel the policy and gave notice to that effect returning the Unearned premium on the same •day, the insured could not recover on• the : policy for .damages sustained in a collision on July 26 following, though insured failed to receive the notice. 'Appeal from 'Jefferson Circuit Court; T G. Parham, Judge; reversed. •
ARK.] HOME .INS. CO.:01'. NEW YORK V. JONES. 917 Verne McMillen, for appellant. .Galbraith Gould, for appellee. MCHANEY, J. Appellant issued its policy of insurance to appellee and Universal Credit Company (herein-after called Credit Company) on May 20, 1935, covering for one year loss or damage by fire, theft or collision to a 1933 : model Plymouth automobile. It contained a can-- collation clause 'as follows :. - "This policY may be canceled at any time by this company by giving to the assured five (5) days written notice of cancellation with' or without tender 6f the- excess of paid premium above the pro rata premium for the expired term, which excess, if not tendered, • shall. be refunded on demand. Notice of cancellation shall state that said excess premium, if not tendered, will be refunded on demand. Notice of cancellation mailed to the address of the assured stated in : this policy shall be sufficient notice." The policy also provided that loss, if any, should be payable to the Credit Company for the account of all interests. On July 15, 1935, appellant elected 'to cancel the policy under the above provision therefor, and notice thereof was mailed on said date to appellee and the Credit Company—that to appellee being* addressed to • him at 402 West Fifth Street, Pine Bluff, Arkansas, the address stated _in the -policy, and: his correct address at that time. On July. 26,- 1935, said autemobile was damaged by collision in the- sum of $265.77. Demand for payment was refused and this suit -followed, first in the. municipal court and then in the circuit court, :and from the latter to this : court. The judgment .against appellant was for the above sum less $50 deductible under the policy. Appellant defended on the ground that it had canceled the policy more than five days before the accident and was not, therefore, liable. Appellee contended* and the court held that he did not receive the notice, and that the provision above quoted .with.reference.lo notice of cancellation is unreasonable, unfair, uncertain t. and., therefore, unavailing. The trial court. also found that the- unpaid notes on this car: were bought on June 22, . 1935, bY the Simmons -National Bank, and that .there-
918 HOME INS. CO . :OF NEW YORK V. JONES. [192 after the Credit Compan had ne 'interest : in the transaction, and that the refund ,to the . Credit Company, by appellant. on,July. 1.5,. 1935; of .the unearned premium on the: policy No,s ineffediye to. bring about a; ;cancellation - thereof, -and :thatit :was in full force .and .effection, July. , 26, the,date of the: collision. ; The. ,eonrt -made a ending; of : fact, : (arid:jit,Ims so; ;stipulated) as: . ,` ` That , netice..of •cancellation was mailed: in Detroit on the 15.th.; day, off July0$3 . 5 . , to: the: correct :address . :of the:insured, • which was ; eleven...days before the: loss. occurred. '." . The; court erred in; rendering :judgment . againSt :ap; pellantiinstead I for: In the recent • caseS : Hone, C .1 Ran; ante'13. 1:283, :912:S:: W. (2d) : 609, and:Gerter2al , Exchdn' ge Ins. CO'rpoi'ation • v: Cdffelt, ante P. 468, 92;8/.'.W..;. )(241) :213; ve . 'speCificallY irecognized; the va.H lidity of. identical 'cancellation • clanses in •Simil•r In- the,fermer t dase : we ;`• f The: caneellation clairse in• the,eentraet , of : insurance.; existing between : the: appellant • and appellee gave-to: the insurer; the; undOubted right :to. cancel the: ,policy, ; by • strictly , complying . . with its provi-sioiM'i Iii the.latter case :We said,: ` With these: fundamen tal: rides. in :view ;we. proceed to. ,an. analySis ,of. the cancel:L laden . clause.:oLthe,poliey under; cong ideratien.: The: guage employed.by the. parties isplairI' and unambiguous.. and -no ;resort 4o IcenstruCtion is . .necessary. .It expressly . . states -that :Cancellation, i of the ; policy may : be.. effected with Or; withOut fettirn: of; the ;unearned:premium, but it is. expresSly 'conditidned that the refund: must - ,be . made , ..,-„.; •• • ;44. If : the dayS:': notice.: of :cancellation; includes a premise' to -refund On 'demand, and': no dein.and for re, -. • 1 fund be made during this period, the cancellation.. be- , comes' effeCtive; hat if the insured demands. a return of the . Unearned preininm during the... five days 'i :period pro-, vided: fOr cancellation, ad suCh :refund be . refused by the • iñsiitOr, ..then. ;. the • : canCellation . of the poliey is ,;auto-: rnatically . deferred until the unearned premittm: • is . frinded.: ; ; • ••• .;;: • . • • • ; In? the; . forther; case it. was . centended that . a . directed : verdict shoukl ; have • been given in : appellant 's favor be-: cause! its ;Witnesses. testified. the 'notice waS mailed; ;while ;
ARK] '919 appellee • teStified she did not get thenotice; although living at the addresS'named in the pbliCY, 'and her atterney testified that appellariVs adjuster admitted . to him the notice was not ailed. A majority, of •this ourt held, a jury question was made;by . this, testimony. .,In the latter case, we held that ,the cancellation:notice. was not,effective because it promised to refund the excess premium on de-. mand;. that Qoffelt, made .imniediate demand, for refund; and ,that, it , was , not complied ,f; , ;. !!„ , • . Here however, there is no question as to,the,proper mailing , of .the .; notice • of , cancellation ,to the , prop,er :dress. . It , so :stipplated.,,,Thereis , o question a • s, i to demand , for' refund, as ; it was paid to -theQ..redit , Pom-pany . when . nOtice ;was ; given , it..: There , , is. nothingo show that; appellant lneyir , the bank . had bought the notes •and .succeeded to, the: rights f. of the . Qredit. „ Compan: 'We - cannot agree . with the triali court that the.proVision reference to ,noticeof cancellation . is ,: unreaSonable,,,unfair,. etc. !, and,, therefore, yOid.. ; the ,contrary, , . the : pre - Yision is •but must he , strictly ,complie , d with ,,,,,
ayang , Ifthe , notice is.given strictly:in accOrdance vli . its te F ins,: necessary that, ; the ; insured ;, shall ceive.it to bet effective,.as its reeeipt,is , a risk,he aSsumes under the plain provisions of the contract. The judgment will, therefore, be reversed, and the cause,dismissed. :.7, t ,■'
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.