Verecchia v. De Siato

• Citation: 45 A.2d 8,353 Pa. 292
• Decision Date: 07 January 1946
• Docket Number: 4176
• Parties: Verecchia v. De Siato (et al., Appellants)
• Court: United States State Supreme Court of Pennsylvania

45 A.2d 8

353 Pa. 292

Verecchia v. De Siato (et al., Appellants)

No. 4176

Supreme Court of Pennsylvania

January 7, 1946

Argued November 27, 1945

Appeal, No. 132, Jan. T., 1945, from order of C.P. No. 5 Phila. Co., March T., 1941, No. 2599, in case of Michael Verecchia v. Frank De Siato et al. Order affirmed.

Attachment execution proceeding.

The facts are stated in the opinion, by LEWIS, J., of the court below, as follows:

The plaintiff, having recovered a verdict against the defendant Frank DeSiato, for $4,040 and entered judgment thereon, issued an execution against the garnishee insurance company. Interrogatories were filed in due course, and the garnishee's answer set up that the defendant's policy of liability insurance had been cancelled upon due notice, and that the insurance company had refused to defend the action in tort against the defendant because of that cancellation. The answers further set up that the garnishee had, on February 24, 1941, mailed to the defendant a five-day advance notice of cancellation, and under date of March 4, 1941, had given to defendant by letter final notice of cancellation, which became effective on March 17, 1941, at 12:01 A.M. Eastern Standard Time, defendant not having in the meantime made payment in full of a premium of $23.40 claimed by the company to be overdue. The injury for which the verdict was obtained and judgment entered occurred on March 25, 1941.

The issue joined between the plaintiff and the garnishee came on for trial before us, and we erred in concluding that the evidence exhibited no dispute of fact to be left to the jury and in giving binding instructions for the garnishee. Subsequently, upon motion and argument, we made absolute the rule for a new trial.

The garnishee insurance company had the undoubted right to cancel its policy upon due notice. Paragraph 18 of the policy, relating to cancellation, contains this provision as to the company's right to cancel and the method of procedure:

"This policy may be canceled by the company by mailing written notice to the named insured at the address shown in this policy 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 insurance under this policy shall end on the effective date and hour of cancellation stated in the notice. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing."

The company's contention at the trial was that the cancellation notice was duly prepared, the covering envelope was properly addressed, postage was affixed and the notice deposited in the United States mail in the due course of office procedure. This contention was presented by the oral evidence of a clerk, who also identified a postage receipt as having been given by the local post office for the notice, although, of course, this receipt referred only to an envelope and not to its contents. The insured denied having received the cancellation notice. Plaintiff's right to recover from the garnishee therefore depended upon whether the policy had been, in fact, "cancelled" by the notice alleged to have been sent.

There was also evidence that at the time of the alleged cancellation -- which was for non-payment of premium -- the company had in its hands a sum of money to which the insured was entitled as a "refund of premium." The insurance carrier did not credit this sum on the installment of premium overdue, nor did the carrier enclose a check for the same with the cancellation notice. In Paragraph 18 of the policy above referred to, there is this provision as to refund of premiums by the company upon cancellation by it:

"If the company cancels, earned premiums shall be computed pro rata. ...