Potomac Insurance v. Atwood
1905 Ill. App. LEXIS 224
Ill. App. Ct.
1905
Check Treatment
Mr. Justice Freeman

delivered the opinion of the court.

Appellant’s principal contention is that the policy sued upon had been cancelled before the loss occurred. It is argued that appellant had done all that could reasonably be required of it to effect cancellation. The policy contained the provision that it might be cancelled at any time “ by giving five days’ notice of such cancellation.” It is said this requirement was sufficiently complied with .when appellant undertook to give such notice by mailing to appellee a registered letter to that effect; that the policy did “ not provide for actual notice.” It is no doubt true, as appellant suggests, that it was not its fault that appellee did not get his mail promptly. The fact, however, remains that until appellee received the registered letter he had no notice of the intention to cancel the policy. He did not in fact receive any such notice until five davs’after the time therein fixed by appellant as the time when the policy would be cancelled. In the absence of any stipulation in the contract as to the manner in which notice shall be given, actual personal service must be had. N. W. Trav. Men’s Ass’n v. Shauss, 148 Ill. 304-309; Ry. Pass. & Ft. Conductors Ass’n v. Leonard, 82 Ill. App. 214-218. The policy under consideration required “ five days’ notice.” . This language can be construed as meaning nothing more nor less than what it says. There is no modifying word or phrase, no condition, no limitation, nothing left to implication. It is “notice,” that is, actual notice. As said in Pro. Life Ins. Co. v. Palmer, Adm’r, 81 Ill. 88-94, “ the placing of a notice in the post office is no more the service of a notice than placing it in the hands of a messenger.”

It is urged that the first count of the declaration does not state a cause of action because of the alleged absence of an averment that the property was located at the time of the fire as described in the policy. But the declaration avers appellee’s ownership of the property as located and described in the policy. The latter-is set forth in the declaration and made a part thereof. It is averred that the property therein described was “ then and there ” lost by the fire. An averment, morever, contained in the second count expressly states that the property was lost “ while located and contained as described in said policy.”

Appellant returned to appellee the proofs of loss furnished by the latter, with an express denial in writing of “ any liability under said policy whatever.” This was a waiver of right under the policy to the sixty days’ time allowed after proofs of loss were furnished, before suit should be brought. The' provision of the policy to that effect thereupon became nugatory. Williamsburg City Ins. Co. v. Cary, 83 Ill. 453-457. The suit was not in fact commenced until after the expiration of that period. It is insisted, however, by appellant, that the declaration should have contained an express averment that sixty days had elapsed after proofs of loss were received by the company before the action was commenced. The policy contains the provision that no suit shall be sustainable until after full compliance by the insured with its requirements. There is an averment in the declaration that the plaintiff has kept and performed all things in said policy mentioned on his part to be kept and performed, that the defendant has not paid the loss or damage, and that on the 24th day of April, A. D. 1902,- it informed plaintiff that it “ would not pay any loss whatever under said policy.” That averment charges in effect a waiver of the sixty days’ limitation and dispenses with any need of averring- that the time had elapsed. See Milwaukee Ins. Co. v. Schallman, 188 Ill. 213-220.

There is evidence sufficient to sustain the verdict, and finding no material error the judgment will be affirmed.

Affirmed.