Werner v. Commonwealth

• Decision Date: 25 August 1931
• Citation: 156 A. 116
• Parties: WERNER et al. v. COMMONWEALTH CASUALTY CO.
• Court: New Jersey Supreme Court

156 A. 116

WERNER et al.

v. COMMONWEALTHCASUALTY CO.

Supreme Court of New Jersey.

Aug. 25, 1931.

Policy in question contained no provision for sending cancellation notice by registered mail, but did provide that policy could be canceled at any time on written notice, and that notice of cancellation in writing, mailed to or delivered at address of insured as given therein, should be sufficient.

Action by May Werner and husband against the Commonwealth Casualty Company. Judgment for plaintiffs.

Breslin & Breslin, of Lyndhurst, for plaintiffs.

Morrison, Lloyd & Morrison, of Hacken-sack, for defendant.

CAFFREY, J.

This case was tried without a jury upon stipulated facts and testimony offered by plaintiffs and defendant.

From the evidence, it appears that May Werner was struck by an automobile owned and operated by Joseph Bongiorno on the 5th day of December, 1929. As result of this accident, Mrs. Werner and her husband, Anthony Werner, sued Joseph Bongiorno in the Bergen county common pleas court, and on April 28, 1930, judgments were entered in favor of May Werner in the sum of $9,000 and in favor of Anthony Werner for $3,000.

Pursuant to the judgments, executions were issued against the defendant and returned unsatisfied by the sheriff because of the insolvency of Bongiorno.

This present cause is against the Commonwealth Casualty Company, pursuant to Public Laws of 1924, chapter 153, p. 352 (Comp. St. Supp. § 99—90e). This generally provides that, in the event of insolvency of an assured, the insurer must respond in keeping with the terms of the policy.

From the evidence, it appears that, prior to the happening of the accident, which serves as the basis of this suit, the defendant company paid $4,500 under this policy. This removes any doubt as to the issuance of the policy and recognition of its force and effect.

The defendant company contends, however, that at the time of the accident to Mrs. Werner, on December 5, 1929, the policy had been canceled pursuant to Clause H., which is the following: "This policy may be cancelled at any time by either of the parties upon written notice to the other party, stating when thereafter cancellation shall be effective and the date of cancellation shall then be the end of the policy period. If cancelled by the Assured, the Company shall receive or retain the short rate premium calculated according to the table of short rates printed hereon. If cancelled by the Company, the Company shall be entitled to the earned premium pro rata. Notice of cancellation in writing, mailed to or delivered at the address of the Assured as given herein, shall be sufficient notice, and the check of the Company, or of its duly authorized agents, similarly mailed or delivered, shall be a sufficient tender of any unearned premium."

From the testimony offered by plaintiffs and defendant, there is a dispute with respect to the payment of premium; however, I find as a fact that the premium was paid.

At the trial, ...