St. Paul Fire & Marine Ins. Co v. C. I. T. Corp.

• Decision Date: 28 November 1936
• Docket Number: No. 25565.,25565.
• Citation: 55 Ga.App. 101,189 S.E. 390
• Court: Georgia Court of Appeals
• Parties: ST. PAUL FIRE & MARINE INS. CO. v. C. I. T. CORPORATION, for Use of HOUSTON.

55 Ga.App. 101

189 S.E. 390

ST. PAUL FIRE & MARINE INS. CO.

v.C. I. T. CORPORATION, for Use of HOUSTON.

No. 25565.

Court of Appeals of Georgia, Division No. 2.

Nov. 28, 1936.

Motion for Reconsideration Denied Dec. 18, 1936.

Rehearing Denied Dec. 12, 1936.

Syllabus by Editorial Staff.

Error from City Court of Bainbridge; P. D. Rich, Judge.

Action by the C. I. T. Corporation, for Use of W. H. Houston, against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Smith, Smith & Bloodworth and Wm.

H. Smith, all of Atlanta, for plaintiff in error.

J. A. Drake, of Colquitt, John E. Drake, C. A. Drake, and J. C. Hale, all of Bainbridge, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

On August 12, 1935, there was instituted in the city court of Bainbridge an action on a policy of fire insurance against the St. Paul Fire & Marine Insurance Company, in the name of the C. I. T. Corporation, for the use of W. H. Houston. The insurance company denied liability, setting up that the policy had been canceled. The matter was submitted to the judge without a jury on substantially the following agreed statement of facts: On May 26, 1934, a policy of fire insurance was issued by said company in favor of the C. I. T. Corporation, with notice of insurance coverage issued to W. H. Houston, of Colquitt, Ga., for the period of one year. It appeared that Houston had purchased from a local dealer a Plymouth sedan automobile, paying part cash and executing a note for the balance with a conditional sales contract, covering the title to the automobile to secure its payment, which had been assigned to the C.

I. T. Corporation. The premium on this insurance was paid by Houston. The policy and insurance coverage certificate provided that " * * * this policy may be canceled at any time by this Company by giving the assured five days written notice of cancellation, with or without tender of the excess of paid premium above the pro-rata premium for the unexpired term, which excess, if not tendered, shall be refunded on 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 a sufficient notice." On November 8, 1934, the New York office of the company deposited in the United States mails with three-cent stamp attached, as first-class mail matter, a notice addressed to W. H. Houston at Colquitt, Ga., stating that this policy was canceled, whichnotice, through the usual course of delivery of mails, would have reached Houston at Colquitt on November 10, 1934. It appears that Houston did not receive this notice of cancellation. On November 17, 1934, this automobile was destroyed by fire. On November 19, 1934, Houston received a notice from the C. I. T. Corporation that the policy had been canceled, and at the same time this corporation tendered to Houston the unearned premium, which Houston declined to accept. Due notice of the loss was given the company and due proof of loss filed with the insurer, and more than sixty days before suit was filed Houston made a demand on the company for payment of his claim. The judge found in favor of the plaintiff for the amount of the loss and 25 per cent, attorney's fees. To this judgment, the defendant excepted directly.

The right to cancel a policy of insurance can be exercised only because it is reserved in the policy, and can be exercised only as therein provided. Farmers' Mut. Fire Ins. Co. v. Harris, 50 Ga. App. 75, 81, 177 S.E. 65. "Where notice is required to be given, it is generally held, in the absence of anything appearing to the contrary, that the notice is not complete until it is received, and that, while mailing a notice duly directed and stamped may furnish presumptive evidence of its receipt, it does not alone constitute notice." Puryear v. Farmers' Mutual Insurance Association, 137 Ga. 579, 581, 73 S. E. 851, 852.

"An insurance company which reserves to itself the right to cancel its policies upon return of the unearned premium, must pay or tender such premium to the assured before it can relieve itself of liability on the policy. Notice of...