Opinion
No. 6978.
May 21, 1951.
APPEAL FROM THE BUTLER COUNTY CIRCUIT COURT, RANDOLPH H. WEBER, J.
David W. Hill, of Poplar Bluff, for appellant.
James A. Finch, Jr., and Finch Finch, all of Cape Girardeau, for respondent.
To avoid confusion, the appellant will be referred to herein as plaintiff, and the respondent as defendant, since the parties were styled that way in the trial court.
The action was brought on a policy of accident insurance, issued by defendant to Floreda W. McCoy, with the plaintiff, James R. McCoy, a brother of Miss McCoy, as beneficiary.
The insurance policy was issued August 26, 1947, and covered nearly everything from accident to sickness and disability from accident. It also covered accidents occurring in a certain way, which doubled the liability of defendant; but as the trial court did not mention the sort of accidents which doubled the defendant's liability under such accident insurance policy, we will not discuss that feature of the policy either, and will treat this case as an action for single liability for ordinary fatal accidental injury.
When the insurance policy was issued to Miss McCoy, she resided in Clayton, Missouri, and later, as stipulated between the parties, received her mail in box No. 286, Hayti, Missouri. She was a clerk in Hayti and later became a clerk in the State of Louisiana. On November 10, 1949, she received an injury from an automobile collision in Louisiana and died four days later, in Mercy Hospital in Vicksburg, Mississippi, without having regained consciousness.
On September 20, 1949, defendant wrote to Miss McCoy, at the address furnished by her to the insurance company, enclosing copies of a rider, which defendant requested Miss McCoy to read, attach one copy to her insurance policy and return a copy to defendant. This letter may have been received by Miss McCoy, as it was afterwards found on her person. However, she did not sign or return the rider, as requested by defendant.
On October 5, 1949, defendant wrote Miss McCoy again at the same address, calling her attention to such rider and threatening to cancel the insurance policy if such rider was not signed and attached to the policy, as requested. This letter apparently was not received by Miss McCoy, as she had then gone to the State of Louisiana, and her mother had the letter after her death.
On November 4, 1949, 10 days before the fatal injury to Miss McCoy, defendant wrote another letter, in which is the following:
"`Inasmuch as you have not seen fit to comply with our underwriting requirements, we regret that we have no choice other than to cancel your policy, effective 10-19-49. This cancellation is in accordance with Standard Provision No. 16 of your policy contract.' A post script clause is attached to that letter, after the signature, and is as follows:
"Our enclosed check in the amount of $12.00 represents a return of your remittance received September 26, 1949."
In his brief defendant says:
"The Insured never received that letter, and the stipulation recites that she was away from Hayti meanwhile, never returned there and that the letter remained unopened until after her death. It contained the check for $12.00 dated November 4, 1949."
The Standard Provision No. 16 of the accident insurance policy was as follows:
"The Company may cancel this Policy at any time by written notice delivered to the Insured or mailed to his last address, as shown by the records of the Company, together with cash or the Company's check for the unearned portion of premium actually paid by the Insured, and such cancellation shall be without prejudice to any claim originating prior thereto."
As this was a case where a jury did not pass on the facts, the trial court made the following findings of fact and declarations of law:
"Findings of Fact
"The Court finds the facts to be that Florence W. McCoy was insured by the defendant corporation for accidental death and that the plaintiff is her beneficiary; that insured gave as her address and defendant had as her address, Box 286, Hayti, Missouri; that insured never notified defendant of any change of the above address; that said policy contained a clause for cancellation, number 16, which reads as follows: "`The Company may cancel this policy at any time by written notice delivered to the Insured or mailed to his last address, as shown by the records of the company, together with cash or the Company's check for the unearned portion of the premium actually paid by the Insured and such cancellation shall be without prejudice to any claim originating prior thereto.' That on September 20, 1949, defendant wrote insured and enclosed a rider for execution to cancel certain protections in the policy; that on September 26, 1949, insured paid her premium of $12.00 but did not execute the rider; that on October 3, 1949, defendant notified insured that rider had been forwarded and if insured didn't comply proportionate share of coverage would be cancelled and that they must hear from her in ten days; that on November 4, 1949, defendant notified the insured that the rider had not been signed and they had cancelled the policy by virtue of Section 16 thereof as of October 19, 1949, and enclosed their check of $12.00 for refund of premium.
"The Court further finds the facts to be that all of the letters by defendant to the insured were addressed to her last known address, Box 286, Hayti, Missouri, and were delivered at Hayti, Missouri, but that the insured did not see nor read the letters of October 5, and November 4, 1949; that Florence W. McCoy was injured on November 10, 1949, in Delhi, Louisiana as a passenger in a 1947 Chevrolet Taxi Cab and died of such injuries on November 14, 1949.
"The Court further finds that plaintiff as beneficiary made demands upon the defendant and the defendant has refused to pay upon the policy for the death of said insured.
"Declarations of Law
"The Court declares the law of Missouri to be that Notice of the cancellation of an accident policy of insurance, addressed to the last known address of the insured, when provided for in the policy of insurance, is valid and binding and constitutes notice of cancellation when deposited in the United States mails whether or not actually received by the insured personally.
"Dent v. Monarch Life Insurance Co., 231 Mo.App. 283, 98 S.W.2d 123; Nick v. Travelers Insurance Co., 238 Mo.App. 1181, 185 S.W.2d 326; 45 C.J.S. Insurance, § 450(2) Note 93.
"The Court declares the Law of Missouri to be that where an accident insurance policy provides that the company might cancel at any time by mailing notice to the last known address of insured, such notice is not ineffective merely because it stated that the policy was cancelled as of a date prior to the date of mailing, but notice was effective as of the date of mailing.
"California Western States Life v. Williams, Tex.Civ.App., 120 S.W.2d 844; Gulf Insurance Co. v. Riddle, Tex.Civ.App., 199 S.W.2d 1000.
"The Court declares the Law of Missouri to be that if an insurance company sends a notice of cancellation to the last known address of the insured as provided in the provisions of the policy and that said notice contained a date of cancellation prior to the date of mailing and that the insured was injured six days after the notice was posted and died ten days after the notice was posted, that the posting of notice constitutes sufficient cancellation of the policy and the death of the insured having occurred after the posting of said notice, such insurance company is not liable under the terms of the policy for the accidental death of the insured.
"Conclusions
"The Court concludes from the findings of fact and declarations of law aforesaid that as the defendant sent a written notice to the insured on November 4, 1949, in which they advised the insured that her policy was cancelled as of October 19, 1950, and tendered the premium in full, previously paid, and that as said notice of cancellation was posted in the mails and actually delivered at the last known address of the insured, and as the policy in question specifically provided for such cancellation, and as the insured was injured and died after the posting of the notice to cancel the insurance policy, that the plaintiff, as beneficiary of the insured, should not recover upon his petition and the issues should be found for the defendant and the plaintiff's petition dismissed."
In accordance with such findings of fact and conclusions of law, the trial court, on August 8, 1950, entered judgment for defendant, and on the same day overruled plaintiff's motion for new trial. Plaintiff filed his notice of appeal and the case is thus before us.
As we understand paragraph VI of appellant's brief, he refers to the action of defendant in giving notice of cancellation, subsequent to cancellation and contends that there should have been a " previous notice and tender before cancellation." He cites two cases and Vol. 12 of American Jurisprudence, Sections 236 to 250, inclusive.
The citation of Henderson v. Massachusetts Bonding Ins. Co., 337 Mo. 1, 84 S.W.2d 922, 924, made by plaintiff, will first be considered. That was not a cancellation case. Insured there was permitted to recover because of the indefiniteness of the terms of the policy. Judge Hyde, then Commissioner of Division One of the Supreme Court, said:
"Generalities usually make ambiguities. The insurer can always prevent the necessity of strict construction against it, or any construction at all, by stating the terms of any provision so clearly, definitely, and specifically as to make its meaning so plain that no room is left for construction."
Since the argument in this case, plaintiff has called our attention to the case of Hendricks v. Washington National Ins. Co., 236 S.W.2d 358, 362, by the Kansas City Court of Appeals. In that case, Presiding Judge Dew said: "If, however, there be any reasonable doubt as to whether this fatal accident should be classified a `Railroad Accident' under Part 1 of Section One, or as a `Farm Machinery Accident' under Part 2 of Section One, or whether the classifications of Section One are modified by Section Two Parts 1 and 2, the provisions would present an ambiguity, in which event the doubt should be resolved in favor of the insured * * *."
In his brief appellant cites us to American Jurisprudence, Vol. 12, Sections 236 to 250, inclusive, and we assume that plaintiff meant that part of Vol. 12, of American Jurisprudence devoted to contracts, although the citation is not very clear on that point. We have carefully read all of Sections 236 to 250, inclusive, of said Vol. 12, American Jurisprudence, under the heading "Contracts" and find nothing therein which creates any doubt in our minds as to the meaning of Standard Provision No. 16, of the insurance policy in this case. That provision stated in clear language and unmistakable terms, that written notice of cancellation should be delivered to the insured or mailed to his (her) last address, as shown by the records of the insurance company.
It is stipulated that such address was Box 286, Hayti, Missouri. The written notice of cancellation was mailed, with sufficient postage to that address and fully complied with Standard Provision No. 16 of the insurance contract. There is no proof that insured's address had ever been shown, on the records of defendant, as in the State of Louisiana.
Plaintiff points out discrepencies in the trial court's findings of fact, but we are unable to see where such discrepencies, if any, made any difference in defendant's right to cancel the insurance policy on November 4, 1949, as of an earlier date, for insured's failure to agree to the rider previously sent to her. As she had failed to agree to the modification of her insurance policy, as proposed by defendant, it had the unquestioned right, under Standard Provision No. 16, to cancel the policy when it did.
Therefore, under Standard Provision No. 16 of the insurance policy, defendant had the right to cancel such policy, and it was not in force when Miss McCoy was fatally injured on November 10, 1949, or when she died on November 14, 1949. Plaintiff had no right of action, as beneficiary under such insurance policy, when he filed his petition. The judgment of the Circuit Court must be affirmed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concurs.