Service Fire Ins. Co. of N.Y. v. Markey

• Decision Date: 14 December 1955
• Citation: Service Fire Ins. Co. of N.Y. v. Markey, 83 So.2d 855 (Fla. 1955)
• Parties: SERVICE FIRE INSURANCE COMPANY OF NEW YORK, Appellant, v. Robert MARKEY, Appellee.
• Court: Florida Supreme Court

Page 855

83 So.2d 855

SERVICE FIRE INSURANCE COMPANY OF NEW YORK, Appellant, v. Robert MARKEY, Appellee.

Supreme Court of Florida, En Banc.

Dec. 14, 1955.

Boggs, Blalock & Holbrook, Jacksonville, and Leon F. Weaver, Tallahassee, for appellant.

Byron Butler and Robert M. Leite, Perry, for appellee.

TERRELL, Justice.

July 17, 1952, appellee secured an automibile collision insurance policy from appellant. In June, 1953, the automobile was engaged in an accidental collision resulting in a loss of $1,432.86 to the plaintiff in damage to his car. It is further alleged that no part of said amount has been paid, account of which plaintiff says that he has been compelled to employ counsel and bring this suit to recover on the policy. Defendant's answer alleged that it cancelled said policy effective August 11, 1952, and that plaintiff was given due notice of such cancellation with a refund of the unearned premium being made to a finance company. At the conclusion of the trial, the jury returned a verdict for the plaintiff on which the trial court entered an amended final judgment. A motion for new trial was denied and defendant appealed.

The point for determination is whether or not the trial court should have directed a verdict for the defendant at the close of all the evidence.

The record shows that cancellation of the policy became effective at 12:01 A.M. Standard Time, August 11, 1952, and the loss or damage to the car occurred June 14, 1953. The evidence shows that defendant complied with the cancellation provision of the policy before the loss by mailing by ordinary mail the required notice of cancellation to the plaintiff. Evidence also showed that the notice of cancellation was not received by the plaintiff. The trial court denied a motion to set aside the verdict.

The provision for cancellation of the insurance policy is 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 five days thereafter 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.'

This is the standard form of policy cancellation used by insurance companies. It is unambiguous and must be construed according to its plain intent. Genone v. Citizens Ins. Co. of New Jersey, 207 Ga. 83, 60 S.E.2d 125; Seaboard Mutual Casualty Co. v. Profit, 4 Cir., 1940, 108 F.2d 597, 126 A.L.R. 1105; Trinity Universal Insurance Co. v. Willrich, 13 Wash.2d 263, 124 P.2d 950, 142 A.L.R. 1; Duff v. Secured Fire & Marine Ins. Co., Tex.Civ.App.1949, 227 S.W.2d 257; Bradley v. Associates Discount Corp., Fla.1952, 58 So.2d 857; American Fire & Casualty Co. v. Combs, Ky.1954, 273 S.W.2d 37; Insurance Co. of Texas v. Parmelee, Tex.Civ.App.1955, 274 S.W.2d 944; Wisconsin Natural Gas Co. v. Employers Mut. Liability Ins. Co., 263 Wis. 633, 58 N.W.2d 424.

These cases approve the rule that proof of mailing the notice of cancellation to the named insured at his address stated in the policy shall be sufficient compliance with the policy provision requiring notice to the insured. Some of these same authorities hold that convincing evidence of mailing is not rebutted merely by evidence that the notice was not actually received. In denying the motion for directed verdict at the conclusion of the testimony, the trial court overlooked these holdings. The notice provision in the policy in the case at bar conforms substantially with the notice provision in the policy in Bradley v. Associates Discount Corp., supra. The loss in the case at bar took place after the notice of cancellation was mailed to the plaintiff who testified that he did not get the notice of cancellation. This court held that mailing of the notice by registered mail without return receipt was 'meticulous compliance' with the law. The policy provision did not require mailing by registered mail and we can not read such a requirement into the contract. See Rigel v. National Cas. Co., Fla.1954, 76 So.2d 285.

Our attention is directed to Womack v. Fenton, 28 N.J.Super. 345, 100 A.2d 690, treating the question of whether or not a jury issue was presented as to mailing of the notice by a denial as to its receipt. The court held that the weight of authority is to the effect that where the mailing of the written notice of cancellation in strict conformity with the expressed essentials of such a provision is established by proof, the cancellation is effectual without evidence of the receipt of the notice by the insured. In this case, as in the case at bar, effort was made to overcome with positive and uncontradicted evidence the presumption of law that since the notice was properly mailed, it was received. Said the court the decisional law is to the contrary. A presumption of law has no artificial probative force of its own. It compels the particular conclusion for the trial judge in the absence of evidence to the contrary, it vanishes in the face of positive, substantial, trustworthy, uncontradicted and repellent evidence.

In our view Bradley v. Associates Discount Corp. and Womack v. Fenton, supra, compel a reversal of the judgment appealed from. The motion of appellant for directed verdict at the conclusion of all the testimony should have been granted so the amended judgment is reversed with directions to enter judgment for the defendant.

Reversed with directions.

THOMAS, THORNAL and BARNS, JJ., concur.

DREW, C. J., concurs specially.

HOBSON and ROBERTS, JJ., dissent.

DREW, Chief Justice (concurring specially).

In Atlantic Coast Line Railroad Co. v. Beazley, 1907, 54 Fla. 311, 45 So. 761, this Court approved an instruction which is now given in the general instructions of trial courts either in the exact or similar language in almost every civil trial held in this State. This instruction reads as follows:

'It is your province, and yours alone, to pass on the disputed issues of fact; and it is the Court's province to give you the law in charge, to which you are to apply the facts as you find them. You are the sole judges of the weight of the evidence and the credibility of the witnesses who have testified before you, and where the testimony is conflicting it is your duty to reconcile it, if you can, upon the theory that such witnesses have sworn to the truth; but, if you cannot do so, then you are privileged to discard so much or such parts of it as you deem unworthy of credit.'

The result reached in the opinion of Justice TERRELL reversing the judgment below with directions to enter one for the defendant is the only result which could properly be reached in the disposition of this case if we give full effect to this well accepted charge. If we accept as true the testimony of both the plaintiff's witnesses and the defendant's witnesses, we must reach the conclusion that the notice of cancellation was mailed in accordance with the requirements of the policy. If, on the other hand, we should affirm the judgment below, it would necessarily require the conclusion that the testimony of defendant's witnesses with reference to mailing the notice was untrue.

I, therefore, concur in the judgment reached in the opinion of Justice TERRELL.

ROBERTS, Justice (dissenting).

The sole issue here is whether the trial judge erred in sending to the jury the question of whether the insurance company had actually mailed to the insured a notice of cancellation of his policy. The trial judge did not submit to the jury the question of whether the notice was received by the insured; in fact he specifically instructed the jury that 'If you believe from the testimony that notice was actually mailed by this company, it don't make any difference whether the plaintiff got it or not under the terms of this policy. If you believe that the notice was actually mailed, whether he received it or not would be of no consequence because the policy only provides for the mailing of it, but you do have the right and it is your duty to go into the question of whether or not the notice was actually mailed. You should be absolutely fair and impartial between the parties here.'

This instruction was, of course, eminently correct insofar as it told the jury that the fact that the insured did not receive the notice 'would be of no consequence,' in view of our holding in Bradley v. Associates Discounts Corp., Fla.1952, 58 So.2d 857, that the insurance company was not required to prove receipt of the notice by the insured in order to effect cancellation of a policy under a clause therein very similar to that with which we are here concerned. But we did not decide in that case that testimony by the company's employee that he or she had placed the notice of cancellation in the mail, properly addressed to the insured, when controverted only by evidence that the insured did not receive the notice, entitled the company to a directed verdict on the issue of whether the notice had been mailed. ...