Selken v. Northland Ins. Co.

• Decision Date: 06 May 1958
• Docket Number: No. 49155,49155
• Citation: 249 Iowa 1046,90 N.W.2d 29
• Parties: Irene SELKEN, Administratrix of the Estate of Dean Selken, deceased, Appellant, v. NORTHLAND INSURANCE COMPANY, Appellee.
• Court: Iowa Supreme Court

Page 29

90 N.W.2d 29

249 Iowa 1046

Irene SELKEN, Administratrix of the Estate of Dean Selken, deceased, Appellant, v. NORTHLAND INSURANCE COMPANY, Appellee.

No. 49155.

Supreme Court of Iowa.

May 6, 1958.

John D. Randall, Cedar Rapids, for appellant.

Silliman & Gray, Cedar Rapids, for appellee.

PETERSON, Chief Justice.

On September 8, 1952, defendant issued a collision liability insurance policy to Dean E. Selken covering a Plymouth car. The car was wrecked and on January 31, 1953, he bought a Chevrolet, to which the insurance was transferred.

On March 12, 1953, Midwest Motor Agency, an authorized agent of defendant located at Dubuque, Iowa, mailed by ordinary mail to Mr. Selken at Altoona, Iowa, a ten-day notice of cancellation of the collision insurance policy. On April 5, 1953, Mr. Selken had a collision and the Chevrolet was destroyed. The record does not disclose the fact, but apparently Mr. Selken either was killed in the wreck or departed this life thereafter because the action is started in the name of Irene Selken, his mother, as administratrix of his estate. She alleges the car was of the value of $1,300 at the time of the collision and prays for judgment in said amount.

Under the trial court's instructions the question of proper service of notice of cancellation was submitted to the jury. The jury decided in favor of defendant, and plaintiff has appealed.

Appellant assigns three errors. Assignments 1 and 3 are closely related and can be considered together. 1. The burden of proving proper cancellation of the policy rested on defendant and in light of the facts as shown the evidence was not sufficient to prove cancellation. 2. The testimony of the acting manager and secretary in the office of Midwest Motor Agency was not competent under the provisions of Section 622.4, 1954 Code, I.C.A., in view of the death of the manager who had signed the cancellation notice.

I. The provision in the policy with reference to cancellation by the company was as follows: 'This policy may be cancelled by the company by mailing to the insured at the address shown in this policy written notice stating when, not less than ten days after, such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period * * *.' Notice of cancellation was mailed as heretofore stated, receipt being accepted by the insurance agent for deposit of the letter in the post office. There was no evidence by either plaintiff nor defendant showing actual delivery to, or receipt of the notice, by the insured. The case rests on proof of deposit of the notice in the post office at Dubuque.

While the principal basis for our decision is interpretation of intent of cancellation statutes (Secs. 515.81 and 518.29), we desire to give consideration to the evidence with reference to mailing of notice of cancellation.

Don Anderson, owner of Anderson Motors, from whom Mr. Selken bought both cars, arranged financing of both cars through Interstate Finance Corporation. Midwest Motor Agency is a part of the Finance Corporation.

The officers and agents of both companies signed policies and documents interchangeably. The President of Interstate Finance Corporation signed Exhibits 3 and 6. These were the policy as to the Plymouth, and transfer endorsement as to the Chevrolet.

Witness Majerus, manager of Midwest Motor Agency testified: 'The Midwest Motor Agency was a division of Interstate Finance Company and its office is in Dubuque. We service all of the Interstate Finance Corporation branches. * * * When the Interstate Finance Corporation purchased the finance paper from the automobile dealers, then the Northland Insurance Company would automatically bind the car for collision. In this particular instance, when Dean Selken bought the car from the Anderson Motors, the date that Selken bought the car, the car was bound in accordance with the amount shown in the application that he signed at the Anderson Motors. Plaintiff's Exhibit 3 is signed 'Midwest Motor Agency' by 'D. B. Cassat' and D. B. Cassat is the President of the Interstate Finance Corporation.'

Don Anderson testified he knew Dean Selken was teaching at Shellsburg when he bought the Chevrolet in January, 1953, and that he lived at home with his mother at Vinton. Mr. Selken's mother testified she knew of only one letter forwarded from Altoona to Dean at Vinton and that was a serviceman's letter.

Selken's conditional contract of purchase, Exhibit 2, assigned to Interstate Finance Corporation, and the policy Exhibit 3, dated September 25, 1952, both state that Dean Selken was obligated to pay $58.52 per month for 2 years on the Plymouth. Exhibit 6, the endorsement on the policy to provide coverage for the Chevrolet, after the Plymouth was wrecked, stated the terms of the policy remained unchanged. This means that every month for some time prior to attempted cancellation, Mr. Selken was making remittance to Interstate Finance Company form Shellsburg or Vinton.

The receipt of monthly payments, and the chain of purchasing, financing and insuring as to the Chevrolet were so interlocked that defendant's agent must have known Dean Selken's correct address when the notice of cancellation was mailed to him.

The presumption as to receipt of an ordinary letter, and the steps required to submit such question to the jury are clearly stated in Forrest v. Sovereign Camp, W. O. W., 220 Iowa 478, 480, 261 N.W. 802, 804.

'Because of the probability that the officers of the government will perform their duties in the transmission and delivery of mail, this court has held that it will be presumed that a communication intrusted to the mails, in such manner that these duties are imposed on the officers of the government, will reach its destination. Watson v. Richardson, 110 Iowa 673, 80 N.W. 407. But to avail one's self of the presumption mentioned it is essential that it first be established, as a matter of fact, that all things have been done and accomplished that are a necessary part of imposing on the government officers and employees the duty of transmitting and delivering the letter. These things, the doing of which must be proven, are set out in Central Trust Co. v. City of Des Moines, 205 Iowa 742, 218 N.W. 580, 582, in following language: 'In order to raise a presumption of delivery of a paper through the mail, * * * (3) there must be evidence of the correct post office address of the person to be charged with receiving it; (4) evidence that the package containing the document was properly addressed; * * *'

Goodwin v. Provident Savings Life Assurance Ass'n, 97 Iowa 226, 241, 66 N.W. 157, 161, 32 L.R.A. 473, 59 Am.St.Rep. 411, was a case where plaintiff had notified a Bank, where premiums were paid, as to change of address from Omaha to Chicago. Defendant mailed the notice involved to Omaha. On trial the defendant relied on fact that notice was sent to its last known address of assured. We said: '* * * the notice was not addressed the the city or town where the assured, at the time, resided. He was then living in Chicago, and it seems to be a well-established rule that under such circumstances no presumption arises that the addressee received the notice. (Citations.) The court did not err in refusing to submit the question as to the actual receipt of the notice by the assured * * *.' (Emphasis ours.)

In Sorensen v. Farmers Mut. Hail Insurance Ass'n, 1939, 226 Iowa 1316, 286 N.W. 494, 123 A.L.R. 1000, the majority opinion relied in part on the presumption that a letter, properly addressed and mailed, reached plaintiff in due time, although there was no direct evidence of receipt by plaintiff.

No such presumption can be assumed in this case as the notice was not addressed to Dean Selken where he lived nor where he worked. Goodwin v. Provident Savings Life Assurance Ass'n, supra; Central Trust Company v. Des Moines, supra; Forrest v. Sovereign Camp, W. O. W., supra; Lundy v. Skinner, 220 Iowa 831, 835, 263 N.W. 520, 522; 31 C.J.S. Evidence § 136(b).

Lundy v. Skinner, supra, pertained to a notice to a creditor in a bankruptcy proceeding. We held the notice was not good because the wrong address appeared on the envelope, saying: 'There would be no presumption arising whatever that a letter or notice addressed to E. W. Lundy, Eldora, Iowa, would be delivered to E. W. Lundy, at Union, Iowa.'

As a general statement 31 C.J.S., supra, states: 'Receipt of mail matter by the person for whom it was intended cannot be presumed unless it is proved that the matter was properly addressed to him, at the city or town where he resides or has his place of business, with the street and number if it is a city of considerable size, or at the post office where he usually receives his mail.'

It is true the policy in this case provided notice could be mailed to insured at 'address shown in this policy.' Such a policy provision is not supported by Section 515.81, 1954 Code, I.C.A., nor by the decisions of this court heretofore cited.

In view of above outlined situation the question of proper notice of cancellation did not generate a jury question. There is not fact controversy as to the notice being mailed to a town where Mr. Selken did not live, nor work. He had not lived there for some time. On this question alone we would reverse the case, but we will also discuss what we consider a fundamental and more important basis for reversal.

II. It is basic that the provisions of insurance policies issued in the state of Iowa cannot be contrary to statutory provisions. If the provisions of the policy are contrary to statute they will not be effective. If they need clarification same will be made in accordance with intent of the statute. Marden v. Hotel Owners' Ins. Co., 85 Iowa 584, 52 N.W. 509; Harrington v. Bremer County Farmers' Mut. Fire Ins. Ass'n, 1926, 203 Iowa...