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PAUL v. DWYER (ET AL. (03/19/63)

March 19, 1963

PAUL
v.
DWYER (ET AL., APPELLANT).



Appeal, No. 58, Jan. T., 1963, from judgment of Court of Common Pleas of Montgomery County, June T., 1959, No. 218, in case of David Brooks Paul v. Joseph H. Dwyer, Jr. and State Farm Mutual Automobile Insurance Company. Judgment affirmed.

COUNSEL

Frank M. Jakobowski, with him White & Williams, for appellant.

Philip Salkin, with him Pearlstine, Salkin & Hardiman, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 410 Pa. Page 231]

OPINION BY MR. JUSTICE COHEN

Appellee obtained a judgment against Joseph Dwyer for injuries arising out of an accident on May 5, 1957. In an effort to collect on this judgment, appellee served a writ of attachment execution on appellant-insurer as garnishee. Appellant admitted that it had issued a policy of insurance to Dwyer covering the period from January 31, 1957 to October 3, 1957. It alleged, however, that the policy had been cancelled on April 24, 1957 for failure to pay premiums. This cancellation had been in pursuance of the following provision of the policy: "The company may cancel this policy by written notice addressed to the insured ... stating that when not less than ten (10) days thereafter cancellation shall be effective. ... The mailing of the notice shall be sufficient proof of notice. ..." Appellant introduced evidence tending to prove that the notice of cancellation had been mailed on April 11, 1957.*fn1 Dwyer denied receiving any such notice.

The trial judge instructed the jury that the sole question before it was whether the notice of cancellation had been mailed. He told them that it was irrelevant whether the premium due had been paid or whether the notice of cancellation had actually been received by the insured. The jury returned a verdict for the appellee and this appeal followed the denial of appellant's motions for judgment n.o.v. and for a new trial.

Appellant raises four contentions before us: (1) that as a matter of law the court below should have declared the policy not in effect on the day of the accident in question because of a failure of consideration in not paying the premium due; (2) that the trial judge committed prejudicial error in telling the jury that he did not approve of the law applicable to the case; (3)

[ 410 Pa. Page 232]

    that the trial judge gave improper instructions as to the quantum of proof required for appellant to sustain its burden of proving cancellation; (4) that the trial judge erred by referring to a presumption applicable to the question of whether the notice of cancellation was mailed.

As for the alleged failure of consideration, it is true that the insured had not paid any premiums to cover the period subsequent to April 3. Under the insurance policy, however, a mailing or delivery of a notice of cancellation was required to terminate the policy. Until such procedure is followed, the policy remains in effect regardless of whether premiums are paid. See Levan v. Pottstown, Phoenixville Ry Co., 279 Pa. 381, 124 A.2d 89 (1924); Harris v. Meyers, 160 Pa. Superior Ct. 607, 52 A.2d 375 (1947); Couch on Insurance 2d, ยง 32:60 (1961).The fact that appellant attempted to mail a notice of cancellation illustrates its understanding that the policy was not automatically terminated when the premium was not paid.

Since mailing of a notice of cancellation was required, and since appellant's evidence on this point was oral in nature, the question of cancellation was properly submitted to the jury. ...


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