German Union Fire Ins. Co. of Baltimore v. Fred G. Clarke Co.
| Decision Date | 06 December 1911 |
| Citation | 82 A. 974,116 Md. 622 |
| Parties | GERMAN UNION FIRE INS. CO. OF BALTIMORE v. FRED G. CLARKE CO. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore Court of Common Pleas; Chas. W. Heuisler Judge.
Action by the Fred G. Clarke Company against the German Union Fire Insurance Company of Baltimore. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before BOYD, C.J., and THOMAS, PEARCE, BURKE, PATTISON URNER, and STOCKBRIDGE, JJ.
Arnold L. Davis and George A. Finch, for appellant. Charles Markell and Edgar H. Gans, for appellee.
This case involves no conflict of testimony but raises three questions of law, upon the answer to which its determination depends. The suit is upon an insurance policy to recover the amount named in the policy; a loss having occurred of the property insured.
In the brief and at the oral argument, it was urged on behalf of the company that there could be no recovery, for the reason that the plaintiff had offered no affirmative proof of the payment of the premium, which constituted the consideration for the issuance of the policy. A careful examination of the record fails to disclose that any question of the payment of the premium was raised at the trial of the case below, though the payment of the premium is recited in the declaration to have been made by the plaintiff to the defendant, and the policy offered in evidence recites as the consideration for it "twenty-five dollars premium." This language in the policy and the recital in the declaration, in the absence of any pleading or evidence denying the payment of the premium might fairly be assumed to be an admission of such payment if the question were properly before us; but article 5, § 9, of the Code, expressly provides that in no case shall this court "decide any point or question which does not plainly appear by the record to have been tried and decided by the court below," and the numerous applications of this provision, of which the case of Baltimore City v. Austin, 95 Md. 93, 51 A. 824, is but an illustration, clearly show that this defense to a recovery on the policy, not having been passed upon by the court below, cannot properly be considered upon an appeal.
The ground of defense upon the part of the company is the cancellation of the policy before the loss occurred, and presents two questions. The first of these is whether the notice, as given by the company, was a sufficient notice, and, if not, whether the notice was void in toto, or merely defective with regard to a matter which the period that intervened between the notice and the loss may have cured; and, secondly, whether a return or tender of the pro rata portion of the premium was a prerequisite to a valid cancellation of the policy. The clause providing for cancellation was what is known as the New York standard form, and reads as follows:
The notice in this case bore date July 15, '09, and was as follows: "The German Union Fire Insurance Co. herewith gives five days formal notice of its intention to cancel policy No. 35069 issued to owner and mortgagee for $1,000, covering property located at 48-54 River street, Cleveland, Ohio, in accordance with the stipulations and provisions embraced in lines Nos. 51 to 55, both inclusive, of the printed conditions of said policy, to wit." Then follows a transcript of the cancellation clause of the policy, after which the notice continues: "Please take notice that all liability of said company under said policy will absolutely cease at noon July 20, '09, unless surrender thereof to the company be made sooner, and that the unearned premium due, if any, will be held subject to your order and return of the policy."
This notice was mailed in Baltimore, by registered mail, on the day of its date, July 15, 1909, as appeared from the registration receipt issued by the Baltimore post office. The return card, showing the receipt of this notice by the addressee, offered in evidence, shows the date of delivery of the notice of cancellation to have been July 17, 1909. The insured, therefore, from the face of the papers, had not five, but three, days' notice of the intention of the appellant company to cancel the policy. What happened after that does not very clearly appear from the record, but apparently the policy was canceled at some date, presumably the 20th of July, 1909, upon the records of the company; but no notice of the fact of cancellation was ever communicated to the appellee. In this condition of facts, the relative positions of the parties are well defined by the opinion rendered by this court in the case of the Am. Fire Ins. Co. v. Brooks, 83 Md. 22, 34 A. 373, where, in a similar case, it was said that,
In the Brooks Case, the notice was not received by the...
To continue reading
Request your trial