Genone v. Citizens Ins. Co. of N.J.
| Decision Date | 14 June 1950 |
| Docket Number | No. 17105,17105 |
| Citation | 207 Ga. 83,60 S.E.2d 125 |
| Parties | GENONE v. CITIZENS INS. CO. OF NEW JERSEY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Unambiguous contracts of insurance will be construed to carry out the literal intent of the parties.
2. Under the provision of a cancellation clause of a standard automobile liability policy, to wit: --in order for the insurers to show that the policy has been cancelled it is unnecessary to prove that the insured actually received the written notice, where it is undisputed that the notice was mailed to the address of the insured as stated in the policy.
3. Under the provision of such cancellation clause providing for the refund of unearned premium, to-wit: --the return of the unearned premium is a consequence of cancellation and not a condition precedent to cancellation.
H. W. Genone by writ of error seeks to review a final decree, which declared the rights and legal duties on an automobile liability policy of insurance issued by Hartford Accident & Indemnity Company and Citizens Insurance Company of New Jersey to him. On petition brought by the insurers against Genone and others, in which they prayed for a declaration of the rights and duties of all the parties with reference to said insurance policy, and for an order staying until after the final declaration any further proceeding instituted by the defendants Cobb against the insurers, the court ordered the policy cancelled, and decreed that the insurers were under no obligation to defend any claim against the insured, and that the defendants had no right to prosecute any action at law or equity against the insurers arising under or by virtue of said policy.
The case was submitted to the trial judge without the intervention of a jury upon the following agreed facts: On May 16, 1947, the plaintiffs issued to Genone a certain standard automobile policy, combination form, insuring Genone against bodily and property damage liability. Such insurance was in amounts and subject to the limits of liability, exclusions, conditions, and other terms set forth in the policy, which is a part of the stipulation. The policy coverage was from May 16, 1947, to May 16, 1948, subject, however, to earlier cancellation as set forth in Condition 22 of the policy, which reads as follows:
On January 21, 1948, the insurers, through their authorized agent, mailed to the insured at the address shown in the policy the following notice of cancellation: 'In accordance with the terms of Auto policy CSC 63691 issued to you by Hartford Accident & Indemnity Co. and Citizens Insurance Co. of New Jersey this is formal notice of cancellation of said policy to become effective on the 26th day of January, 1948, at 12.01 A.M.' After signature of the insurers by their agent, appeared the following: 'Note: Any return premium due under this policy if not tendered herewith will be refunded upon demand.'
The insured did not receive the notice set out above.
Immediately after February 23, 1948, the insured notified the insurers that on the above named date the automobile covered by the policy was involved in an accident in which certain persons riding in the car were injured and damage was done to the automobile. On March 9, 1948, the attorney for the insured by letter made formal demand on the insurers for damages arising from the accident. On March 29, 1948, the attorney for the insurers by letter to the attorney for the insured advised the latter that the policy had been cancelled as of January 26, 1948, disclaiming any liability on the part of the insurers under the policy, and denying that they were under any obligation to defend the suit which had been filed by the defendants Cobb against the insured.
The unearned premium on the policy of insurance amounted to $43.85 on January 26, 1948. Prior to institution of the instant proceeding, the insurers had not tendered the unearned premium to the defendant Genone, but on instituting this action the amount of unearned premium was paid into the registry of the court, it being alleged by the insurers that this sum belonged to the insured.
R. A. Whitsett, Atlanta, A. E. Wilson, Atlanta, for plaintiff in error.
Dan MacDougald, Jr., Gilmer A. MacDougald, MacDougald, Troutman, Sams & Schroder, all of Atlanta, for defendants in error.
1. Insurance contracts are governed by the same rules of construction or interpretation, for the purpose of ascertaining the intention of the parties, as apply to other contracts. Code, § 56-815; Golden v. National Life and Accident Insurance Co., 189 Ga. 79(2), 87, 5 S.E.2d 198, 125 A.L.R. 838. Where the terms and conditions of an insurance policy are unambiguous, the court must declare the contract as made by the parties. Penn. Mutual Life Insurance Co. v. Marshall, 49 Ga.App. 287(1), 175 S.E. 412. Where the meaning is plain and obvious, it should be treated as literally provided therein. Daniel v. Jefferson Standard Life Insurance Co., 52 Ga.App. 620(2), 184 S.E. 366.
2. Condition 22 of the policy, under the heading of 'Cancellation,' is clear and unambiguous. There is no statutory provision in this State which requires that notice of cancellation of an insurance policy must be given in any particular manner. Here each party reserved the right to cancel the policy by mailing a written notice to the other party. As to the insured, he could effect cancellation by mailing a written notice to the companies, stating the time when cancellation would be effective. As to the insurers, they could cancel by mailing a written notice to the insured, stating the time, not less than five days thereafter, when cancellation would be effective. It was agreed that the mailing of the notice would constitute sufficient proof of notice, and that the effective date and hour stated in the notice would constitute the end of the policy period. The parties made the act of mailing the written notice, and not the actual receipt of the notice, the essential requirement to cancel the policy.
There has been no case before this court involving the question as to whether receipt of the notice must be shown, where the policy under consideration contained a similar provision as to giving notice of cancellation. However, the Court of Appeals, in the case of Saint Paul Fire and Marine Insurance Co. v. C. I. T. Corporation, 55 Ga.App. 101, 189 S.E. 390, had before it a policy of fire insurance which contained the following provision as to giving notice: 'Notice of cancellation mailed to the address of the assured stated in this policy shall be a sufficient notice.' It was held that under such provision, where proof of mailing...
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