Appeal from order of Court of Common Pleas of Fayette County, Dec. T., 1962, No. 186, in case of Carl Pugh v. Bankers Mutual Insurance Company of Adams County.
Peter U. Hook, with him Herman M. Buck, and Ray, Buck, John & Hook, for appellant.
Ira B. Coldren, Jr., with him Coldren & Adams, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Hoffman, J.
[ 206 Pa. Super. Page 139]
On or about November 14, 1961, Bankers Mutual Insurance Company of Adams County issued an automobile collision insurance policy to Carl Pugh, with a loss payable clause in favor of the Fayette National Bank and Trust Company of Uniontown. In consideration of a total stated premium of $948.30, the company agreed to insure Pugh's 1958 Mack Tractor for a period of two years against loss or damage in excess of $250. by collision or upset.
On July 23, 1962, the tractor was damaged when, while being operated on a downhill portion of road, it rolled over a hillside and upset.
Pugh brought an action in assumpsit on the policy. A jury awarded him a verdict of $9,064.25. The insurance company then moved for a new trial and for judgment n.o.v. The lower court, sitting en banc, modified and reduced the verdict. It refused, however, the motions for judgment n.o.v. and for a new trial. Accordingly, it entered judgment for Pugh, from which judgment the company now appeals.
Appellant contended at trial that it had cancelled the instant policy of insurance in February, 1962, five months prior to the destruction of appellee's tractor.
The insurance policy contained the standard cancellation clause which provided that, ". . . 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 ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice . . ."
[ 206 Pa. Super. Page 140]
Under this clause, the burden of proof that the policy was cancelled is on the company; this burden is sustained, however, by proper proof of mailing. Mackiw v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company, 201 Pa. Superior Ct. 626, 630, 193 A.2d 745, 746 (1963).
To prove that the notice of cancellation had been mailed, appellant's cancellation clerk testified that a cancellation notice had been duly prepared. Appellant produced, in addition, a carbon copy of the alleged notice of cancellation. The lower half of this document displayed an official stamped post office certificate of mailing stating that two envelopes, addressed to appellee and to the Fayette Bank, had been received from appellant; it also bore a certificate signed by appellant's mailing clerk which stated that he had compared the contents of the envelopes with the notice of cancellation. Appellee testified that he had never received a notice of cancellation.
The lower court charged the jury that the insurance company need not prove appellee's receipt of the notice of cancellation. It recognized, however, that appellee's denial of receipt went to the credibility of the evidence, direct or circumstantial, that the notice had in fact been mailed. Verecchia v. DeSiato, 353 Pa. 292, 45 A.2d 8 (1946); Mackiw v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company, supra. Consequently, it submitted ...