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MACKIW v. PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY (09/12/63)

September 12, 1963

MACKIW
v.
PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY, APPELLANT.



Appeal, No. 30, April T., 1963, from judgment of Court of Common Pleas of Washington County, Nov. T., 1958, No. 19, in case of Mary Mackiw, administratrix of estate of Edward Mackiw, deceased, v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company. Judgment reversed.

COUNSEL

James C. McCreight, with him McCreight, Marriner and McCreight, for appellant.

Milton D. Rosenberg, with him Bloom, Bloom, Rosenberg & Bloom, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P. J.,absent).

Author: Watkins

[ 201 Pa. Super. Page 628]

OPINION BY WATKINS, J.

This is an appeal from the judgment of the Court of Common Pleas of Washington County, entered on the verdict of a jury, in an action on an automobile insurance policy, in favor of Mary Mackiw, administratrix of the Estate of Edward Mackiw, deceased, the

[ 201 Pa. Super. Page 629]

    plaintiff-appellee, and against the Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company, the defendant-appellant, in the amount of $1443.61; and from the refusal, by the court en banc below, of motions for judgment n.o.v. and for a new trial.

The action is based upon the claim for collision damage under an automobile insurance policy and the main issue in this appeal is whether or not the policy issued by the company was effectually canceled by the company as provided by the terms of the policy.

Edward Mackiw, the decedent assured, was a member of the Pennsylvania State Police, who insured his automobile with the defendant company. His current policy would have expired on December 31, 1957. On or before November 29, 1957, the company issued and sent to Edward Mackiw, a new policy of insurance covering his Cadillac automobile for a six-month period to begin December 31, 1957 and expire on June 31, 1958. The policy was the standard form with the $100 deductible collision clause. A check for $57.83, dated December 29, 1957, was drawn to the credit of the defendant company by his brother's wife, at the suggestion of the decedent, who gave her the cash. The check was delivered to the agent of the company and was never returned. On January 1, 1958, the automobile was damaged in an accident. The repairs cost $1366.33. The decedent filed with the company the necessary claim for the damages resulting from the accident.

Subsequently Edward Mackiw was accidentally killed and when the company refused payment of the collision claim this suit was brought against the company by Mary Mackiw, his mother, as administratrix of his estate, to recover the costs for the repairs. The defendant company defended on the ground that notice of the cancellation of the policy of insurance had been mailed to the insured on December 16, 1957, to become effective on December 27, 1957.

[ 201 Pa. Super. Page 630]

The burden of proof that the policy was canceled is on the company and this burden, under the terms of the contract, is sustained by proper proof of mailing. The clause in the contract reads as follows: "15.... This policy may be canceled by the company by mailing to the insured named in Item I of the Declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of the surrender or the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by such insured or by the company shall be equivalent to mailing."

In Verecchia v. De Siato, 353 Pa. 292, 45 A.2d 8 (1946), the same question was raised and the evidence is strikingly similar to that in the instant case. The insurance company presented oral testimony of a clerk that a cancellation notice was duly prepared and the notice deposited in the Post Office in due course of office procedure; and this testimony was supported with a postal document certifying to the receipt of certain letters for mailing without knowledge of the contents. In this case the insured denied receipt of the notice. The Supreme Court held, at page 295, that: "The clerk's oral testimony was circumstantially strongly supported by a 'document' - the postal receipt; but this did not withdraw the question of notice from the circle of dispute or controversy. The insurer had the burden of proving the policy had been terminated, and whether the notice had been duly given remained an issue of fact despite the circumstance that the undoubted weight of the evidence inclined toward the insurance company. In other words, the credibility of the clerk's testimony with reference to the notice and the mailing of it was for the jury." The testimony in the instant

[ 201 Pa. Super. Page 631]

    case is quite similar except for the introduction of another document, in addition to the postal receipt, to wit, an alleged carbon copy of the notice form. The top half of the document is an exact copy of the notice form, and was typed as a carbon copy when the original notice was prepared; the lower half consists of the official stamped and canceled Post Office Receipt of Mailing and a certificate by the employee that he mailed it.

However, there was still no testimony as to the specific notice of cancellation which the defendant alleged was prepared and sent to Edward Mackiw. The witnesses could not remember the specific notice with the decedent's name on it and were unable to testify that the alleged notice was placed in an envelope and mailed to the decedent, even though his name appears on the certificate. As President Judge CARSON, speaking for the court en banc, said: "The employees of the defendant insurance company could not and did not testify that a notice of cancellation was actually executed and mailed to the decedent. An analysis of the testimony on this subject merely reveals that the procedure followed in accordance with the custom and practice of the office, did indicate that some clerk prepared a number of cancellation notices and some messenger delivered a number of cancellation notices to the post office. The record lacks any positive evidence that ...


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