Gulf Ins. Co. v. Riddle, 14817.

• Decision Date: 31 January 1947
• Docket Number: No. 14817.,14817.
• Citation: 199 S.W.2d 1000
• Parties: GULF INS. CO. v. RIDDLE.
• Court: Texas Court of Appeals

Page 1000

199 S.W.2d 1000

GULF INS. CO. v. RIDDLE.

No. 14817.

Court of Civil Appeals of Texas. Fort Worth.

January 31, 1947.

Appeal from District Court, Wichita County; Temple Shell, Judge.

Action on automobile collision and upset policy by N. A. Riddle against Gulf Insurance Company. Judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Strasburger, Price, Holland, Kelton & Miller and Mark Martin, all of Dallas, for appellant.

Smoot & Smoot and G. A. Smoot, all of Wichita Falls, for appellee.

SPEER, Justice.

Gulf Insurance Company of Dallas, Texas, hereinafter called defendant, issued its policy of insurance effective from August 23, 1945, and for one year thereafter to N. A. Riddle, hereinafter called plaintiff, against, among other things, collision and upset of plaintiff's automobile.

Plaintiff's car suffered damages from an upset or turning over on October 2, 1945. He had his car repaired at an expense of slightly over $500. and demanded payment of defendant, which was refused, and he instituted this suit for $750.

Defendant resisted payment and judgment at the trial upon a plea that the policy of insurance had been cancelled by it on September 21, 1945, prior to the accident under which plaintiff claims.

The policy of insurance provides certain conditions under which either plaintiff or defendant could cancel the policy before its expiration date. We need not mention the provisions relating to the right of plaintiff to cancel, but only as to defendant's right. In this respect the policy provides: "* * * This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than five days thereafter such cancellation shall be effective. The mailing of such notice as aforesaid shall be sufficient proof of such notice and the effective date of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice * * * by the company shall be equivalent to mailing."

The address of plaintiff as shown in the policy is: "N. A. Riddle, Star Route, Holliday, Archer County, Texas."

Trial was to a jury on Special Issues. The verdict in response to issues was: (1) On October 2, 1945, plaintiff suffered an upset resulting in damages to his automobile described in the policy. (2) Plaintiff's automobile was damaged by the upset. (3) The difference between the value of the car in Wichita County immediately before and immediately after the upset was $500. (4) The notice of cancellation mailed by defendant to plaintiff was not addressed to plaintiff at the same address set out in the policy. (5) Defendant tendered to plaintiff the pro rata portion of the premium paid on the policy, at the time it mailed the notice of cancellation. (6) Defendant refunded to plaintiff the unearned pro rata portion of the premium on the policy as soon as practicable after such cancellation was effective. (7) Plaintiff's failure to receive the notice of cancellation was not due to defendant's failure to direct it to the address appearing in the policy. (8) If plaintiff had received the notice on or about September 21, 1945, he would have had reasonable opportunity to secure another policy of insurance on his automobile to replace the one issued by defendant. (9) The written notice of cancellation was deposited in the United States Mails on September 21, 1945. (10) The notice of cancellation was not addressed to plaintiff as it appears in the face of the policy in question. (11) Plaintiff did not receive the notice of cancellation.

Defendant moved for judgment on the verdict and alternatively for the court to disregard the answers to issues 4, 10 and 11. This was overruled by the court.

Plaintiff moved for the court to disregard special issues 5, 6, 7 and 9 and for judgment notwithstanding same. After notice and hearing on that motion, it was sustained, and judgment was entered for plaintiff against defendant for $500. Defendant's motion for new trial was overruled and it has perfected this appeal.

Reversal is sought on three points of error; they are in substance: (1) In rendering judgment for plaintiff and not for defendant upon the jury finding that prior to the loss in question, a written notice of cancellation was mailed plaintiff, "It being undisputed that the address to which the notice was mailed was plaintiff's correct address at which he regularly received mail and was the same place referred to as plaintiff's address stated in the policy." (2) In overruling defendant's motion for judgment notwithstanding the answers to issues Nos. 4, 10 and 11 wherein the jury found that the notice of cancellation was not received by plaintiff and that the notice was not addressed as set out in the policy, "Such findings being immaterial and without support in the evidence." And (3) In rendering judgment for plaintiff notwithstanding the answers to Special Issues Nos. 5, 6, 7, and 9, "* * * when such findings by the jury were clearly supported by the evidence and were material."

The three enumerated points are discussed by defendant as a group but we will refer to them separately. We have concluded that no reversible error is presented by the points raised and will presently demonstrate why.

We think it proper to make some general observations concerning this case, which seem settled principles of law. In the absence of fraud, mutual mistake, and such matters, the policy of insurance is the contract between the parties. Courts will not undertake to make contracts for parties but will interpret and enforce those made by them. If the provisions of a policy contract are ambiguous, they will be construed in the light most favorable to the insured; if not ambiguous they will be construed and applied as agreed upon between the parties. An unequivocal agreement contained in the contract, whereby either party may cancel and end the contract, is binding between the parties and a strict compliance with the terms contained in the contract will end its binding effect.

As pointed out above, either party could terminate the contract by doing the things therein set out. Defendant here asserts that it canceled the policy under the terms therein provided by mailing to plaintiff its notice of cancellation on September 21, 1945, to his proper address, which "was the place referred to as plaintiff's address as stated in the policy." We think the contention is not borne out by the record. Plaintiff said when the policy was issued he lived nine miles out of Holliday on the Star Route; that he moved back to Holliday early in October (1945), he didn't remember the date; he got his mail at general delivery for awhile and at the time of trial had a box on a rural route. It is certain that the notice by defendant was not addressed to a "Star Route" as provided in the policy contract. The notice was mailed on September 21, 1945, with necessary postage by dropping it in a U. S. Mail chute in an office building in Wichita Falls, Texas, addressed: "Mr. N. A. Riddle, Holliday, Texas." Defendant had contracted that it could cancel the policy by mailing a notice of such intention to plaintiff "at the address shown in this policy." The address shown in the policy was "N. A. Riddle, Star Route, Holliday, Archer County, Texas" with the word "address" preceding "Star Route", "Town or City" underneath "Holliday" and "County" underneath "Archer." It is undisputed by the testimony that plaintiff did not receive the notice. It is uncertain from the testimony whether plaintiff resided on the "Star Route" or in Holliday, when the notice was mailed. It is perfectly obvious from the address shown in the policy that plaintiff did not reside in or at Holliday at the time, this had...