Warner v. Farmers' Auto. Inter-Insurance Exchange, 14548.

• Decision Date: 15 May 1939
• Docket Number: 14548.
• Citation: 104 Colo. 359,90 P.2d 965
• Parties: WARNER v. FARMERS' AUTOMOBILE INTER-INSURANCE EXCHANGE.
• Court: Colorado Supreme Court

90 P.2d 965

104 Colo. 359

WARNER v. FARMERS' AUTOMOBILE INTER-INSURANCE EXCHANGE.

No. 14548.

Supreme Court of Colorado

May 15, 1939

In Department.

Error to District Court, Larimer County; Claude C. Coffin, Judge.

Action by Jean Warner against the Farmers' Automobile Inter-insurance Exchange to recover amount of judgment previously obtained by plaintiff against one who was allegedly insured by defendant against damages arising out of automobile collision. Judgment was entered on a directed verdict for the defendant, and plaintiff brings error and applies for supersedeas.

Judgment affirmed.

Waldo Riffenburgh, of Fort Collins, for plaintiff in error.

Wolvington & Wormwood, of Denver, and Stone &amp Hill, of Fort Collins, for defendant in error.

BAKKE Justice.

Plaintiff in error, plaintiff below, sued defendant in error hereinafter mentioned as the company, to recover $2,564.46 the amount of a judgment she previously had obtained against one Carl Heinrich, for damages sustained by her July 14 1937, resulting from a collision of a car owned and driven by Heinrich with her automobile in which she was riding. The company admitted having written a policy insuring Heinrich against such damages, but defended on the ground that the policy had been cancelled July 4, 1937, and was not in force at the time of the accident. A replication alleged waiver of premium payment, and denied that the policy had been cancelled. At the close of the evidence, the court, on motion, directed a verdict for the company. Reversal is sought on application for supersedeas.

Of the four assignments of error urged, we deem it necessary to consider only the third: That the court erred in 'directing a verdict on behalf of the defendant at the close of the evidence in the case * * * contrary to the evidence,' the others being clearly insufficient under our rule 32. Cunningham v. Snelling, 91 Colo. 454, 15 P.2d 713. This involves the determination of whether there was any evidence in the case requiring submission of the issues to the jury.

Heinrich made application for, and received, a contract of insurance from the company for a term period from April 8, 1937, to October 8, 1937, the premium being $24.60, upon which he made two payments, one of $10 when the application was signed April 7th, which was the membership fee, and the other, for $2.30, May 1st. The following notation appears on the receipt given Heinrich by Mr. Nelson, the company's agent, dated May 1, 1937, the time of the payment of the last item of $2.30: 'Remainder of 1/2 prem.' June 25, 1937, notice of cancellation was mailed to Heinrich, which reads as follows:

'June 25, 1937.

'Notice of Cancellation

'Of entire Coverage.

'Carl Heinrich, Box 154, Windsor, Colorado.

'Policy No. 2194506

'The coverage noted above will be cancelled on July 4, 1937 in accordance with the terms of your policy, unless Before that time the amount due $12.30, is received at the home office.

'Dear Sir: We have been expecting your remittance for the above amount but up until the time of mailing this notice it has not been received.

'Under the terms of your policy we are regretfully obliged to cancel the coverage indicated above under 'Notice of Cancellation,' unless Before the effective date indicated your remittance has been received at the home office.

'No further notice will be given and the exchange will assume no further liability on the cancelled coverage after the cancellation date.

'Yours very truly,

'Farmers Underwriters Association

'Atty. in Fact

By John C. Tyler, Pres.'

'an

'cc Colo. 21

The provision in the policy concerning cancellation is as follows:

'(19) Cancellation

'This policy may be cancelled by the named insured by mailing written notice to the Exchange stating when thereafter such cancellation shall be effective, in which case the Exchange shall, upon demand, refund the excess of premium paid by such insured above the customary short rate premium for the expired term. This policy may be cancelled by the Exchange 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, and upon demand the Exchange, shall refund the excess of premium paid by such insured above the pro rata premium for the expired term. The mailing of notice as aforesaid shall be sufficient proof of notice and the insurance under this policy as aforesaid 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 Exchange shall be equivalent to mailing. The Exchange's check or the check of its representative similarly mailed or delivered shall be a sufficient tender of any refund of premium due to the named insured. If required by statute in the state where this policy is issued, refund of premium due to the named insured shall be tendered with notice of cancellation when the policy is cancelled by the Exchange and refund of premium due to the named insured shall be made upon computation thereof when the policy is cancelled by the named insured.'

The address of Heinrich given in the policy was Box 154, Windsor Colorado. He claims, and we may assume for the purpose of this opinion, that he never received the notice of cancellation, although the evidence is conclusive that it was mailed to him at the address recited in the policy. Heinrich's correct address was Box 154, Route 1, Windsor, Colorado. There was a box No. 154...