93 W. Va. 448 | W. Va. | 1923
By notice of motion for judgment on a policy of insurance, plaintiff obtained judgment for $1500 on July 24, 1922; and defendant prosecutes this writ of error therefrom. The insurance policy was upon a motor truck whereby the assured was indemnified against loss by damage to the truck caused solely by accidental collision .with another object. The policy was dated July 31, 1921, and provided that it might be “cancelled at any time by either of the parties hereto upon written notice to the other party stating upon what date thereafter (not less than five days hereafter when cancelled by the company) cancellation shall bé effective, upon which date at 12 o ’clock noon, the policy shall terminate. ’ ’
The first defense interposed was that the policy had been duly cancelled under this provision at the time the accident occurred damage for which is the basis of the claim sued on. Two accidents had occurred prior to the one which is the basis of this suit, and the claims arising thereunder had been promptly paid by defendant. It appears that defendant had ordered the > policy cancelled, and on October 18, 1921, the local agent of defendant, Hi Williamson, went to the office of plaintiff for that purpose, where he found Lane Schofield, vice president and general manager of plaintiff company, and called for the policy. The circumstances, of the alleged surrender and cancellation of the policy is detailed by Scho-field as follows: “ITe asked me for this policy and I had some little trouble finding it, but I dug around among our files and found it — we. had a number of them — and I handed him the policy and he put it in his pocket and said, ‘I have been asked by the company to cancel this policy,’ and left 'the office with the policy. * * * * * The following day we got a check for $85.39 being the unearned premium. The check was put on deposit the same day as any, other money.” Williamson, the agent, testified in substance that he called upon Schofield on the 18th of October and took up the policy, .cancelled it as of that date and gave the check for the return premium, which check was introduced in evidence as paid. The policy was'marked cancelled on the books
On October 21, 1921, three days after the policy had been taken np as detailed, Clyde Goosly, who was driving -the truck (on which had been placed a tank for oil delivery) around a hill on a down grade, on a narrow road, in attempting to negotiate a curve in the road, went over the embankment because the steering gear “stuck” or would not function, and the truck and tank rolled over a steep hillside and onto a l^ailroad track about 60 yards below, where it was.practically demolished. The casings, of the value of $58, were saved. A day or so after the accident the plaintiff gave the wreckage of the truck to Maynard, who sent it to the motor ear repairman of the railroad company at Flat Top, who traded the engine of the truck for a Maxwell engine and built up a truck from the damaged one, using the Maxwell engine therein". It seems that there were some rocks at the edge of the roadbed where the truck left the road, on a level with the road, and the driver says that if it had not
The second point of defense is that the truck was not damaged or destroyed by accidental collision within the meaning of the policy, even if the policy was in force at that time and had not been cancelled.
The third point of defense is: (a) because of no prompt notice of the accident to defendant, as required by the policy; (b) because no opportunity to inspect, as provided for in the policy, was given; and (c) because defendant was denied the right to repair, build or replace the truck, as provided for by the policy.
It is apparent that if the first point of defense interposed is effective, that is, that there was a legal and complete cancellation of the policy, the other defenses' are superfluous. The question as to whether there was an accidental collision within the meaning of the policy, and the failure to pi*omptly give notice of the accident and allow defendant opportunity to inspect, and repair or replace, the truck, are interposed upon the assumption that the policy'was in force at the time of the accident.
On the claim of cancellation, plaintiff says that there could be no cancellation except in the manner set out in the policy, that is, by a notice in writing five days before the time it was intended that the cancellation should become effective. It is argued that Schofield did not assent to the cancellation; that he was not asked by the agent to waive the right to a five days notice; that although he made no objection to the cancellation it was because he had no knowledge that he was entitled to a notice of five days, and not having knowledge could not and did not waive a right of which he was ignorant. Both Schofield, the vice-president and general manager, and who had charge of the insurance of the company’s property, and Randolph, the president of the company, vouched the record by saying if they had been allowed to testify on that point, they would have said that they knew nothing of the
The case of Hattie F. Baird v. Firemans Ins. Co., 108 Me. 506, is relied ripon by plaintiff as authority for the proposition that there was no cancellation. An inspection of that case reveals that the agent telephoned the assured that he had instructions to cancel the policy, and requested her to forward it to him. She replied that he did not have a right to cancel, and refused to comply with his request; afterwards he called on her and took the policy in question and told her that she might as well sign it as he had cancelled it. She expressed a doubt as to his right to cancel and asked: ‘ ‘ Gan you cancel that if I do not sign it?” to which he replied, “I certainly can. It is already cancelled. It is merely a matter between you and the company about this paper. I have done my duty; I have cancelled it.” He then took the paper in his possession and she asked him if he could procure other insurance for her, and he said he saw no reason why he could not, but that he was unable to write any policy that day be
“If the evidence of cancellation by mutual consent raises no real question of fact under the issue, the court need not submit it to the jury.” Candee v. Citizens Ins. Co., 4 Fed. 143, citing Pleasants v. Faut, 22 Wall. 89, U. S. 116; Com’rs. v. Clark, 94 U. S. 278.
There is no conflict in the evidence concerning the cancellation, surrender and payment of unearned premium. The policy was not in force at the time of the accident, and defendant’s peremptory instruction to find in its favor should have been given. It is unnecessary to consider the assignments of error based on the other defenses interposed.
The judgment is reversed, verdict set aside, and a new trial awarded.
Reversed and remanded.