Gilmore v. Grand Prix of Tulsa Corp.
| Decision Date | 11 June 1963 |
| Docket Number | No. 40117,40117 |
| Citation | 383 P.2d 231 |
| Parties | Douglas GILMORE, minor, by and through Walter Gilmore, his Father and Next Friend, and Walter Gilmore, individually, Plaintiffs in Error, v. GRAND PRIX OF TULSA CORPORATION, a Corporation, Defendant in Error, and Southwestern Casualty Insurance Company, Defendant in Error and Garnishee. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where an 'Owners', Landlords', And Tenants' Liability' policy provided that it could be cancelled by the insurer's mailing written notice thereof to the insured at the address shown in the policy, and also provided that such mailing should be sufficient proof of notice, and the insurer mailed such notice, it accomplished cancellation of the policy, though the address was incorrect, the insured never received it, and claimed that the insurer, through its agents, knew the correct address.
2. Where the same policy also provided that in event of cancellation, earned premium should be computed pro rata and that premium adjustment might be made either at the time of cancellation or as soon as practicable after its effective date, but payment, or tender, of unearned premium was not a condition thereof, the fact that the unearned portion of the premium had not been received by the insured at the time of the present litigation, did not establish error in the trial court's determination that the policy had been cancelled.
Appeal from the Court of Common Pleas of Tulsa County; James P. Goeppinger, Judge.
Garnishment proceedings in aid of execution by judgment creditors against their judgment debtor's claimed insurer. After judgment in favor of the claimed insurer, the judgment creditors appealed. Affirmed.
C. Lawrence Elder and James E. Poe, Tulsa, for plaintiffs in error.
Hudson, Hudson, Wheaton, Kyle & Brett, Tulsa, for defendant in error and garnishee.
This appeal arose out of a garnishment proceeding instituted by plaintiffs in error, hereinafter referred to as 'garnishors', against the insurance company appearing here as defendant in error, henceforth referred to as 'garnishee', after said garnishors had recovered judgment on March 11, 1961, against the Grand Prix of Tulsa Corporation, in a total sum of $5605.60, on account of personal injuries sustained on June 17, 1960, by the minor, Douglas Gilmore, at a 'go-cart' track, operated by the latter corporation, to which we will hereinafter refer as: 'Grand Prix'.
The reason for the garnishee being proceeded against was that previously, on September 10, 1959, it had issued to Grand Prix an 'Owners', Landlords', And Tenants' Liability' policy covering bodily injury liability up to $20,000.00, with a prescribed 'Policy Period' from that date, to September 10, 1960.
The garnishee's answer denied that on the date of the Gilmore boy's injury it had any indebtedness or property in Tulsa County belonging to Grand Prix, and denied that on the day it was served with garnishment summons, or since, it had any contract of indemnity affording Grand Prix (insurance) protection.
In reply to said answer, the garnishors took issue with the garnishee's denials, and, it was upon the issues thus joined, that the cause came on for trial by the court without a jury.
At the trial, there was no question but that Grand Prix had at one time been insured under the policy the garnishee had issued to it on September 10th, 1959, as aforesaid, and for which said garnishee had paid a year's premium of $400.00 in advance. As the evidence was developed, however, the controlling issue became whether or not the policy had thereafter been effectively cancelled a long time prior to the accident out of which Grand Prix' liability to the garnishors arose.
The method by which the policy could be cancelled was prescribed by its paragraph 20, which reads as follows:
(Emphasis ours.)
Grand Prix' 'go-cart' track is located at the corner of East 51st and South Lewis Streets in Tulsa. It appears from the evidence that if this location was numbered, its address would probably be '2100 East 51st', but the address shown for Grand Prix in the policy involved, was: 2100 West 51st'. It was to the latter address that the garnishee mailed its form of 'NOTICE TO INSURED OF CANCELLATION OF INSURANCE POLICY' on December 14, 1959. On or about December 16, 1959, this notice form was returned to the garnishee sender by the U. S. Postal Department unclaimed, and still in the sealed envelope in which it was mailed with said department's notation stamped thereon: 'No such number.' There can be no question but that it was not received by Grand Prix.
At the trial, no evidence was introduced to explain why Grand Prix' address, as typed into the policy, was on 'West' rather than East, 51st Street, except that '2100 West 51st' was the way it was typed on the application for the policy. It was shown that the application was processed through one of the garnishee's agents, the Lester R. Langford Agency of Springfield, Missouri, after Mr. Langford and a Mr. Brown, one of the garnishee's employees, had traveled to Tulsa and made an inspection of the gocart track premises and Grand Prix' property there.
After Mr. Newcomb Cleveland, President of Grand Prix, and Mr. Walter Walmsley, one of its directors and an insurance man, himself, had testified to meeting with Langford and Brown at the premises on that occasion, Mr. Walmsley testified as follows:
* * *
* * *
Mr. Walmsley also testified that when the policy was issued, it was mailed to his office, which apparently was the same as that of 'The Lawrence Wilson Company' in downtown Tulsa's First National Building; that after receiving it, he didn't pay any attention to the address of the insured appearing therein, and that he caused Grand Prix' check to be issued for the policy's premium, after he had received a statement for it at said downtown office.
The evidence further showed, that, though Mr. Walmsley had had indications from telephone conversations and correspondence with officials of the garnishee company that its cancellation of the policy was contemplated, no part of the policy's premium was ever tendered, or refunded, to Grand Prix, though there was evidence showing that...
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...Admx. v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Co., 201 Pa.Super. 626, 193 A.2d 745; Gilmore v. Grand Prix of Tulsa Corporation et al., (Okl.) 383 P.2d 231; Aetna Casualty and Surety Co. v. Simpson, (Fla.App.) 128 So.2d 420; Jensen v. Traders & General Insurance Co.,......
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