Leland W. Walker, Somerset, for appellant.
George Y. Meyer, and William W. Matson, both of Pittsburgh, Clarence L. Shaver, and Shaver & Heckman, of Somerset, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 176]
This is an action in assumpsit by plaintiff on a policy of automobile insurance issued by defendant. The court below sustained defendant's preliminary objections to plaintiff's complaint and held that, under the terms of the insurance contract and the admitted facts, the policy had been effectively cancelled by the insurer before the loss occurred.
The following facts which appear from the pleadings are not disputed: The policy providing for collision insurance on plaintiff's automobile was issued by defendant on November 5, 1948, at a total premium of $53.71, and extended for a period of six months. On November 23, 1948, defendant mailed written notice of cancellation of the policy to plaintiff, the insured, stating that cancellation was to be effective November 30, 1948. On December 5, 1948, plaintiff's car was damaged by collision, and plaintiff suffered a loss to the extent of $1,200 after allowing for the salvage value of the car. On December 28, 1948, plaintiff by his attorney notified defendant of the loss and requested payment under the policy. On December 30, 1948, defendant advised plaintiff that it denied liability for the reason that the policy had been canceled as of November 30, 1948, which was before the loss; and it returned to plaintiff the unearned premium of $48,71.
The section in the policy relating to cancellation provided as follows: 'This policy may be canceled by the named insured by mailing to the company written notice stating when thereafter such cancellation shall be effective. This policy may be canceled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than five days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancellation
[ 167 Pa. Super. Page 177]
stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.
'If the named insured cancels, earned premiums shall be computed in accordance with the customary short rate table and procedure. If the company cancels, earned premiums shall be computed pro rata. Premium adjustment may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation becomes effective. The company's check or the check of its representative mailed or delivered as aforesaid shall be sufficient tender of any refund of premium due to the named insured.'
Plaintiff has appealed from judgment for defendant.
The single question presented is whether, as a matter of law, under the cancellation clause of the policy, defendant could cancel the policy merely by written notice to the insured, or whether the return of the unearned premium ...