Brown v. Presidential Fire & Marine Ins. Co.

• Decision Date: 04 February 1930
• Docket Number: No. 20937.,20937.
• Citation: Brown v. Presidential Fire & Marine Ins. Co., 24 S.W.2d 206 (Mo. App. 1930)
• Court: Missouri Court of Appeals
• Parties: BROWN et al. v. PRESIDENTIAL FIRE & MARINE INS. CO.

24 S.W.2d 206

BROWN et al. v. PRESIDENTIAL FIRE & MARINE INS. CO.

No. 20937.

St. Louis Court of Appeals. Missouri.

February 4, 1930.

Rehearing Denied February 19, 1930.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Hazel M. Brown and another against the Presidential Fire & Marine Insurance Company, Chicago, Ill. Judgment for plaintiffs, and defendant appeals. Affirmed.

Harry C. Willson and Thos. O. Stokes, both of St. Louis, for appellant.

Max Sigoloff, of St. Louis, for respondents.

SUTTON, C.

This is an action on a fire insurance policy covering on plaintiffs' household furniture. The cause was tried before the court, without a jury, on an agreed statement of facts, made and filed in the cause, and oral admissions made at the trial. There was a judgment for plaintiffs for $733.05, including interest, and the defendant appeals.

The policy sued on was issued by defendant insurance company on November 24, 1925, for a term of three years, in the sum of $1,000. On June 15, 1926, defendant wrote plaintiffs a letter, which was sent by registered mail, and was received by plaintiffs on June 16, 1926, as follows:

"The Presidential Fire & Marine Insurance Company hereby gives formal notice of its intention to cancel policy No. 15312 issued to you in accordance with the stipulations and provisions embraced on the printed conditions of said policy.

"Please take notice that all liability of said insurance company under said policy will absolutely cease at noon, June 18, 1926."

The premium on the policy was paid at the time the policy was issued. There was no tender of the unearned premium, or offer to return it, at the time the notice of cancellation was given, or afterwards, prior to the institution of this suit. Plaintiffs did not at any time surrender, or offer to surrender, the policy to defendant. Nor did defendant at any time demand or request of plaintiffs the surrender of the policy. After the suit was brought, defendant tendered the unearned premium by paying it into court.

A fire occurred on December 14, 1927, which partially destroyed the insured property, resulting in damage to the property in the sum of $687.58. Defendant denied liability for the damage, on the ground that the policy had been canceled, and thereupon this suit was brought.

The policy sued on contains the following provision: "This policy shall be canceled at any time at the request of the insured; or by the company by giving five days' notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company by giving notice it shall retain only the pro rata premium."

Defendant assigns error here upon the refusal of its demurrer to the evidence. Defendant grounds this assignment on the cancellation of the policy. Plaintiffs say that the notice of cancellation given by defendant was ineffectual, because the defendant did not return or offer to return the unearned premium, whereas the defendant says that a return of the unearned premium, or offer to return it, was not essential, because the plaintiffs did not surrender or offer to surrender the policy. Defendant's view is based upon the policy provision that, if the policy be canceled or become void or cease, the unearned premium shall be returned "on surrender of the policy." A like policy provision was under review, by the Kansas City Court of Appeals, in Chrisman & Sawyer Banking Co. v. Hartford Fire Insurance Co., 75 Mo. App. 310, wherein the court, construing the provision, said:

"But it is said that this particular policy provided that the unearned premium was to be returned `on the surrender of the policy.' And as the policy was not surrendered, it was not necessary to return the premium. We think the return of the premium and the surrender of the policy, under the terms of the contract, were concurrent acts; that neither could be demanded without the other. But as defendant was the party seeking cancellation, it was its duty first to have tendered the unearned premium on a surrender of the policy. It then would...