Duff v. Secured Fire & Marine Ins. Co., 4683
| Decision Date | 26 October 1949 |
| Docket Number | No. 4683,4683 |
| Citation | 227 S.W.2d 257 |
| Parties | DUFF et al. v. SECURE FIRE & MARINE INS. CO. |
| Court | Texas Court of Appeals |
Jones, Hardie, Grambling & Howell, El Paso, for appellants.
Kemp, Smith, Brown, Goggin & White, El Paso, for appellee.
The principal question presented by this appeal relates to the cancellation of an automobile public liability and property damage insurance policy issued by the appellee to appellant Ottie L. Duff covering his automobile.
Suit was filed by appellee as plaintiff against appellants as defendants in the 65th Judicial District Court of El Paso County, in which appellee sought a declaratory judgment under the Declaratory Judgment Statute of this State, Vernon's Ann.Civ.St. art. 2524-1, declaring the policy in question cancelled, and that plaintiff was not required under the terms of such policy to defend a suit then pending in the trial court by which the other appellants sought to recover from appellant Ottie L. Duff damages for personal injuries growing out of a collision in which his automobile was involved and that plaintiff was under no obligation to pay any judgment that might be rendered against Duff in such suit. The substance of defendants' answers was a denial that the policy had been cancelled when the accident occurred. The trial court entered judgment declaring the policy cancelled and that plaintiff was not liable thereunder and not required to defend the suit instituted by the other appellants against Duff, and was under no obligation to pay any judgment that might be rendered against Duff in said suit.
The material facts found by the trial court without the intervention of the jury are:
On October 19, 1948, Secured Fire & Marine Insurance Company issued to Ottie L. Duff its public liability policy No. TAC 7384 with limits of $5,000 and $10,000 for personal injury and $5,000 for property damage. Thereafter it was determined that the form on which this policy had been issued was obsolete, and this policy was replaced by the company's policy No. TAC 14953, which was issued for a period of one year from October 19, 1948. Duff paid a premium of $6.00 for the issuance of the original policy, which was the regular premium for a thirty day period. No further premium was paid. The address of the insured as shown in Policy No. TAC 14953 is
'Address 47th Bomb Group, (No.)
Biggs Field, (Street)
El Paso (Town or city)
El Paso Texas (County-State)'
The policy contained the following provision as to cancellation:
On November 13, 1948, the insurer's agent prepared and posted in the United States mail at El. Paso the following notice:
November 13, 1948.
'T/Sgt. Ottie L. Duff
47th Bomb Gp
Biggs Field, Texas.
'You are notified that your automobile liability policy No. TAC 14953 dated October 19, 1948, is hereby cancelled as of Noon 12:01 A. M. the 18th day of November, 1948, from and after which day and hour the Policy will be no longer in force. This action is occasioned by reason of
'Non-Payment of Premium
Secured Fire & Marine Insurance Co.
By s/s Frances H. Yonkman
Frances H. Yonkman KU'
The notice (we interpolate envelope enclosing the notice) was addressed to T/Sgt. Ottie L. Duff, 47th Bomb Group, Biggs Field, Texas. Biggs Field is a post office in El Paso County. The court concluded that such mailing of the above notice effected a cancellation of the policy on November 18, 1948. Appellants requested additional findings to effect that the notice was never received by Duff and he had no knowledge that the policy was cancelled until after the accident in which appellants were injured occurred on December 4, 1948. A point of error is presented because of the court's refusal to make such additional findings. The court's conclusion was that the mailing of the notice of cancellation effected a cancellation of the policy in question on November 18, 1948.
The evidence is uncontroverted that the notice in question was never received by Duff, and there is no evidence that he had any knowledge that appellee had attempted to cancel the policy by mailing such notice prior to the date of the accident. We may therefore assume that the trial court regarded appellants' requested additional findings as facts in reaching his conclusions.
While there is a conflict of authority in other jurisdictions, See 45 C.J.S., Insurance, § 450b (2), p. 90; 29 Am.Jur.Sec. 285, p. 264, and Couch Cyc. of Ins. Law, Vol. 6, Sec. 1440, p. 5094, it has been held in this State that when a policy provides for cancellation by the insurer by mailing notice thereof in compliance with the terms of the contract,...
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