Employers Mut. Cas. Co. v. Nosser, 43044

• Decision Date: 25 May 1964
• Docket Number: No. 43044,43044
• Parties: EMPLOYERS MUTUAL CASUALTY COMPANY v. Joseph J. NOSSER.
• Court: Mississippi Supreme Court

Page 426

164 So.2d 426

250 Miss. 542

EMPLOYERS MUTUAL CASUALTY COMPANY v. Joseph J. NOSSER.

No. 43044.

Supreme Court of Mississippi.

May 25, 1964.

Davidson & Beach, Satterfield, Shell, Williams & Burford, Jackson, William F. Riley, Natchez, for appellant.

Joseph E. Brown, Jr., Fred C. Berger, Natchez, for appellee.

BRADY, Justice:

This is an appeal by the Employers Mutual Casualty Company, appellant, from an adverse decree rendered by the Chancery Court of Adams County, Mississippi, on the 20th day of August, 1962, which awarded to the appellee, Joseph J. Nosser, the sum of $2,394.62, with legal interest at the rate of six per cent per annum from the date of the decree, together with all costs. The record discloses the following pertinent facts. The appellant, Employers Mutual Casualty Company, is an Iowa insurance corporation, qualified to do business in the State of Mississippi, through a general agency, the Southern Underwriters, Inc., and through local agencies appointed by the Southern Underwriters, Inc. A policy of insurance, number 9797929, was issued through the Guido-Foley Agency in Natchez, Mississippi, to the appellee. The policy was issued on November 14, 1961, covering a period extending to November 14, 1962. The Guido-Foley Agency was the predecessor of the Butts-Doughty Insurance Agency, which is involved in the case at bar. No question is made as to the authority of either of these agencies to issue the policy or the subsequent endorsement thereon, which was actually made by the Butts-Doughty Insurance Agency on the 28th day of February, 1962. This endorsement added comprehensive and collision coverages not included in the original policy. The original policy was issued to cover collision loss and personal injury received only by the appellee in the operation of his automobile and it had the customary fifty dollar deductible provision clause therein.

One Miss Elizabeth Calloway, an employee of the Southern Underwriters, Inc. of Jackson, Mississippi, who resided in Jackson, Mississippi, testified that (1) on March 15, 1962, she mailed to the appellee a notice of cancellation advising appellee that the aforesaid policy of appellant was canceled effective as of 12:01 A.M. on March 25, 1962. The Southern Underwriters, Inc. is a well known automobile underwriter, and Miss Calloway has been in their employment for some thirteen years, and the record reflects it was her duty to check the dailies that came in, to issue policies, to issue notices of cancellation, to check cancellations and endorsements. She testified that she sent this notice of cancellation in response to a request from the home office to cancel policy 9797929 issued on November 14, 1961 by the appellant to appellee Joseph Nosser of 13 Brentwood Lane, Natchez, Mississippi. The endorsement to the policy, which added comprehensive and collision coverage, also added a loss payee, which was the Service Motor Company, Natchez, Mississippi. On April 4, 1962, the appellee, while operating the insured automobile, became involved in an accident in Natchez, Mississippi. The appellee immediately contacted the Butts-Doughty Insurance Agency to report the accident, and was notified that his policy had been canceled prior to April 4, 1962. Appellee employed an attorney who, on or about April 5, 1962, addressed a letter to the appellant at its home office in Des Moines, Iowa, and to the Butts-Doughty Insurance Agency in Natchez, Mississippi, advising both addressees of the accident in which the appellee had been involved on April 4th, and called upon the appellant and its aforesaid agent to pay any claims which might arise from said accident. On April 13th appellant's branch claim superintendent, J. B. Garretty, advised Mr. Burber that the appellant's policy number 9797929 had been canceled prior to April 4, 1962, and thereafter declined to afford to Mr. Joseph Nosser any coverage whatsoever for the accident which occurred on said date because the policy was no longer in effect on that date.

The appellee was subsequently sued in the County Court of Adams County, Mississippi by J. O. Bearden, who obtained a judgment against the appellee in the sum of $748.48, plus costs. The attorney who represented the appellee claims a fee of five hundred dollars. The appellee testified that the actual cost of repairs to his automobile, being the one insured under the appellant's aforesaid policy, was the sum of $846.14, but he also testified that the cost of repairs, including depreciation, was approximately $1,146.14. The appellee thereafter filed his suit against the appellant in the Chancery Court of Adams County, Mississippi, and in his bill of complaint appellee prayed for a judgment against appellant in the total sum of $2,394.62. Appellant answered the aforesaid suit in the chancery court, asserting as his chief defense that said policy had been canceled effective March 25, 1962, which date was prior to the date of the alleged accident relied upon by the complainant. The appellee contended further that it owed the complaint nothing.

At the conclusion of the trial the learned chancellor dictated into the record an opinion and finding of fact which in substance held that no written notice of the cancellation had been mailed to the appellee by the appellant, the same was never deposited in the United States Post Office in Jackson, Mississippi with postage fully prepaid, and the same was never received by the complainant herein. The court went further and found superfluously that local agent Butts-Doughty Insurance Agency of Natchez, Mississippi never advised the appellee that his policy was canceled; that there was an amendment or rider to said policy issued shortly before the alleged cancellation; that the appellee was entitled to a refund of some $87 even if the appellant had canceled said policy of insurance as is claimed. The chancellor categorically held as a fact the appellant did not mail notice of cancellation and it never made a refund to appellee and that it is estopped from asserting its special plea in bar which set up the cancellation of the policy. A judgment was entered therein, awarding unto the appellee the full amount sued for in its bill of complaint of $2,394.62, with interest at six per cent per annum from August 20, 1962, and all costs incurred therein.

The appellant urges in its assignment of errors two, namely, (1) the lower court committed manifest and reversible error in finding and adjudicating that the insurance policy in question had not been canceled, and (2) the lower court erred in awarding the sum of $1,146.14 to the appellant for physical damage (including depreciation) to his own automobile.

The primary question here is whether or not the appellant accomplished the cancellation of the appellee's policy on March 25, 1962, at 12:01 A.M. in accordance with the terms and provisions of the policy of insurance. We must carefully consider that portion of the policy which relates to the cancellation, which is paragraph 16 and which section is as follows:

'16. Cancellation This policy may be canceled by the insured named in Item 1 of the declarations by surrender thereof to the company or any of its authorized agents or by mailing to the company written notice stating when thereafter the cancellation shall be effective. This policy may be canceled by the company by mailing to the insured named in Item 1 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of surrender or the effective date and hour of cancellation stated in the notice shall become the end of the policy period. * * * Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation.' (Emphasis supplied.)

It is obvious that the above 'standard form' of policy cancellation conditions and wording expressly permit (1) the appellant to cancel the appellee's policy by mailing notice to the appellee stating when not less than ten days thereafter such cancellation shall be effective; (2) that the mailing of notice shall be sufficient proof of notice; (3) that non-receipt of the notice by the appellee is not involved and did not affect the validity of the cancellation; and (4) that the failure of appellant to return the unearned premium was not a condition of cancellation.

Miss Calloway, the appellant's Mississippi general agency underwriter, unequivocally testified that she mailed the notice of cancellation as required in Section 16 of the policy; that this was done on March 15th; that the appellee was notified that on March 25th, at 12:01, the policy would be canceled. Copy of the notice of cancellation which she prepared was introduced in evidence. The original was sent to the appellee. A post office receipt number 3817 was likewise introduced, which Miss Calloway testified she obtained from the postmaster in Jackson, Mississippi, as proof of the fact that the letter to the appellee had been mailed. She testified that the postmaster stamped the envelope and tore the certificate off and handed it back to her, and 'threw', or placed, 'the letter into his mailing box.' Miss Calloway's testimony was corroborated by these exhibits which were introduced thereto. The record fails to disclose any positive testimony contradicting or denying that the cancellation of this policy was mailed as aforesaid. The appellee himself did not testify that the notice of cancellation was not mailed; he merely testified that he did not receive the notice.

The findings of the chancellor are of the utmost importance and therefore we quote from the pertinent parts thereof:

The court found as a fact that no written notice of cancellation was...