Home Ins. Co. of New York v. Hall, 4-4177.

• Decision Date: 24 February 1936
• Docket Number: No. 4-4177.,4-4177.
• Parties: HOME INS. CO. OF NEW YORK v. HALL.
• Court: Arkansas Supreme Court

91 S.W.2d 609

HOME INS. CO. OF NEW YORK v. HALL.

No. 4-4177.

Supreme Court of Arkansas.

February 24, 1936.

Rehearing Denied March 30, 1936.

Appeal from Circuit Court, Union County, Second Division; Gus W. Jones, Judge.

Action by Mrs. Celesta Hall against the Home Insurance Company of New York. Judgment for plaintiff, and defendant appeals.

Affirmed.

Verne McMillen, of Little Rock, for appellant.

J. V. Spencer, of El Dorado, for appellee.

Barber & Henry and Troy W. Lewis, all of Little Rock, amici curiæ.

JOHNSON, Chief Justice.

This action was instituted by appellee, Mrs. Celesta Hall, against appellant, the Home Insurance Company of New York, in the Union circuit court to recover certain damages to her automobile which were alleged to have been insured against by appellant insurance company. By answer appellant controverted the material allegations of the complaint and affirmatively pleaded that appellee's contract of insurance was canceled by it on December 12, 1934, in form and manner provided for in the contract of indemnity. Upon trial to a jury, it was stipulated between counsel that a policy of insurance was issued by appellant and in favor of appellee dated September 8, 1934, indemnifying her against damage to her automobile by collision to the extent of $500; that her automobile was damaged by collision on January 12, 1935, to the extent of $300.50, and that the full premium had been paid.

The policy of insurance contained the following clause: "This policy shall be cancelled at any time at the request of the Assured, in which case this Company shall, upon demand and surrender of this policy, refund the excess of paid premium above the customary short rate premium for the expired term. This policy may be cancelled at any time by this Company by Giving the Assured five (5) days written notice of cancellation with or without tender of the excess of paid premium above the pro-rata premium for the expired term, which excess, if not tendered, shall be refunded upon demand. Notice of cancellation shall state that said excess premium, if not tendered, will be refunded on demand. Notice of cancellation mailed to the address of the Assured stated in this policy shall be sufficient notice."

Two witnesses on behalf of appellant testified that on December 29, 1934, they prepared and mailed to appellee at her established address at El Dorado, Ark., notice of cancellation of her policy of insurance. Appellee testified that she did not receive appellant's notice of cancellation, although residing at the time at the address stipulated in the policy. J. V. Spencer, appellee's attorney, testified that he discussed the merits of this controversy with Mr. Knight, appellant's adjuster, prior to the filing of the suit, and that he admitted that appellant's office in New York did not mail notice of cancellation to appellee.

After submission of the cause upon instructions, not here complained of, the jury returned a verdict in favor of appellee for the sum stipulated as her damages, and a judgment was duly entered thereon, from which this appeal comes.

Appellant's contention for reversal is that the facts in reference to the mailing of the cancellation notice by appellant in New York is...