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Lawskills.com Georgia Caselaw
DAVIS v. TRAVELERS INDEMNITY COMPANY.
36159.
Garnishment, etc. Before Judge Moore. Fulton Superior Court. December 21, 1956.
QUILLIAN, J.
1. Where an insurance policy provides that the mailing of notice of cancellation of the policy to the insured at the address shown in the policy shall constitute proof of notice of such cancellation, it is unnecessary to prove that the insured actually received the written notice, when it is undisputed that the notice was mailed as stipulated in the policy. 2, 3, 4. None of the special ground of the motion for a new trial show error.
5. The motion for a judgment notwithstanding the verdict is without merit.
Catherine Davis instituted an action for damages for personal injuries alleged to have been sustained on November 16, 1952, by an automobile which was being operated by Ralph Conner, the eighteen-year-old son of B. Clifford Conner, and named as defendants in that suit B. Clifford Conner and Ralph Conner. The case was tried before a jury and resulted in a verdict for $3,000 in favor of Catherine Davis. Being unable to collect the judgment from Ralph Conner, the plaintiff, Catherine Davis, on February 5, 1954, sued out an affidavit and bond for garnishment in the Civil Court of Fulton County and caused summons of garnishment to be served on Travelers Indemnity Company. The said Travelers Indemnity Company, as garnishee, filed its answer in which it denied any indebtedness whatsoever to Ralph Conner. Catherine Davis then filed her traverse to the answer of the garnishee. The plaintiff contended that the garnishee issued a policy of insurance to the defendant, Ralph Conner, against loss by reason of liability arising from injuries to others by Conner while operating a described automobile; that she was injured within the period during which the defendant was covered by the policy and obtained a judgment against him, hence the garnishee was indebted to the defendant at the time the summons of garnishment was issued.
The garnishee contended that Conner was not covered by the policy because prior to the date of the plaintiff's injuries, it had been canceled by reason of non-payment of premiums by the insured. The plaintiff contended that the policy was not legally canceled because notice of its cancellation was not given Ralph Conner in the manner provided by the policy, and that the payment of certain money after the time garnishee contended the policy was canceled was sufficient in amount to pay premiums on it and keep it in life beyond the date when the defendant Ralph Conner injured the plaintiff.
The policy contained this provision among others: "In consideration of the issuance of this policy on an instalment premium payment basis, it is agreed that failure to pay to the company any instalment within ten days after the date it becomes due and payable shall be deemed to be a request by the named assured for cancellation of the policy on a short-rate basis."
Upon the trial of the case Jack May,a witness for the garnishee, testified in part that he was an insurance agent for Travelers Indemnity Company and sold their policies, that he sold two policies to Clifford Conner, one covering a 1950 Ford automobile and another covering a 1940 Ford automobile which was driven by Clifford Conner's son, Ralph Conner, that the policies here issued in June of 1952, that Ralph Conner asked him to change the policy on the automobile he was driving to cover him as driver of a certain 1950 Ford automobile and he did so by an indorsement upon the policy, that he did not know it at the time, but that Ralph Conner was already covered on the 1950 Ford car and that this in effect caused him to have two policies covering said Ralph Conner as driver of the same automobile; that he mailed bills to B. Clifford Conner every month requesting payment of the premiums due; that said B. Clifford Conner made no payments and was in contact with the witness from June, 1952, to October, 1952, at which time he requested Travelers Indemnity Company to cancel the policies by direct notice; that the first time the witness saw or ever communicated with B. Clifford Conner was in December, 1952, at which time said Conner asked him to back date the policy on the 1950 Ford automobile which had been canceled; that he informed said Conner that he could not back date the policy because it had been canceled; that he collected payment on the policy which Ralph Conner had requested covering the 1950 Ford for the time between June and October of 1952, but no charge was made on the policy B. Clifford Conner had bought covering the 1950 Ford to be effective June 16, 1952; that he charged said Conner for premiums on the policy which Ralph Conner had requested on the "short-rate basis" because the policy had not been in force for a full year; and that he had no policy in force on November 16, 1952, which covered the 1950 Ford involved in the collision.
B. Clifford Conner testified in part: that he had received no notice that the policy had been canceled and had no knowledge of the fact until he made demand upon the insurance company for payment of damages arising out of the collision with the plaintiff; that he had received no bills from Jack May at any time; that he called Jack May and told him about there being two policies on the same automobile and that May told him not to worry, that he would straighten it out for him; and that when he paid the premiums on December 2, 1952, May told him he had paid his back payments in full.
P. H. Speer testified in part: that he was employed by Travelers Indemnity Company and part of his job was to issue and mail cancellations on insurance policies; that on October 14, 1952, he executed the cancellations on policies held by Ralph and Clifford Conner; that he mailed these cancellations to 798 Park Street, S W., Atlanta, which was the address shown in the policies; and that the cancellations took effect ten days after the time of mailing.
At the conclusion of the evidence counsel for the plaintiff made a motion for a directed verdict, which was overruled. The jury returned a verdict in favor of the garnishee, Travelers Indemnity Company. The plaintiff filed a motion for a new trial and also a motion for a judgment notwithstanding the verdict. Both of these motions were overruled and the plaintiff excepted to these rulings.
1. The general grounds insist that there was not sufficient evidence from which the jury could determine that the defendant Conner received any notice of the cancellation of the insurance policy covering the 1950 Ford automobile. Speer testified that he mailed the cancellation to the defendant at the address shown in the policy. The policy in question contained the following provision: "23. Cancelation. This policy may be canceled by the named insured by mailing to the company written notice stating when thereafter such cancelation 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 cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancelation 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." In order to prove cancellation of the policy it was unnecessary for the garnishee to prove that the insured actually received the written notice, where it is undisputed that the notice was mailed to the address of the insured as stated in the policy. Genone v. Citizens Insurance Co. of New Jersey, 207 Ga. 83 (2) (60 S. E. 2d 125).
The plaintiff contended that the payments made by Clifford Conner kept the policy in force up to and including the date she was injured by Ralph Conner, though, as the garnishee contended, made after the policy was canceled. This contention is predicated upon the further insistence of the plaintiff that the payments made by Clifford Conner should have been applied to the payment of premiums on the policy calculated upon a pro rata basis from the time of the issuance of the policy on June 16, 1952, to the date of her injury on November 16, 1952. The garnishee on the other hand contended that the policy was formally and legally canceled for non-payment of premiums on October 14, 1952, that the money paid by Conner on December 2, 1952, was properly applied to the payment of premiums on a "short-rate basis" as provided by the policy, and, as calculated, it covered a period extending from June 16, 1952, to October 14, 1952, which latter date was prior to that on which the plaintiff was injured. The policy provision as to cancellation for non-payment read: "In consideration of the issuance of this policy on an instalment premium payment basis, it is agreed that failure to pay to the company any instalment within ten days after the date it becomes due and payable shall be deemed to be a request by the named assured for cancellation of the policy on a short-rate basis." There being evidence that the defendant failed to make payment on premiums due, for more than ten days after their due dates, the jury was authorized to find that the garnishee's agent, May, had the authority to charge the defendant premiums on a shortrate basis.
The plaintiff also contends that the garnishee used the wrong basis of calculating the premiums on a "short-rate basis", and that even figured on the short-rate basis the premiums paid by Clifford Conner would have kept the policy alive through the date of the collision with Ralph Conner. Mr. Green, a witness for the garnishee, testified that the premiums charged were in the correct amounts and conformed to the standard rate tables used by insurance companies. This was sufficient evidence from which the jury could determine that the correct basis in figuring the amount of premiums due had been used, hence that the amount paid by Clifford Conner was not enough to keep the policy in force until the date on which the plaintiff was injured by Ralph Conner. There was sufficient evidence to support the verdict and the general grounds are without merit.
2. Special grounds 1, 2, 3, 5 and 6 of the motion for a new trial insist that several excerpts from the trial judge's charge were error because he failed to direct a verdict for the plaintiff. These special grounds are controlled by the general grounds and require no elaboration.
"And, gentlemen, it then becomes a question for you to determine in this case whether or not notice was given to the holders of the policies, that is the Conners, by the company, that it would cancel the policies unless the premiums were paid on a certain date, it being the contention of the company in this case that it mailed to these parties a notice that unless the premium was paid by a certain date, that is, 10 days after notice was mailed, that the policies would be declared void and be cancelled." This charge presented a correct statement of one of the issues of the case and was not error.
4. Special ground 7 complains that the trial judge erred in failing to charge, even without request, the following: "A contract of insurance involving the substitution of one policy of insurance for another requires perfect good faith and full disclosures on the part of the company. A policy issued in lieu of another which has not been cancelled is not binding." Substitution of policies not being an issue in the case at bar, the trial judge did not err in failing to charge the above quotation. Special ground 7 does not show error.
5. The trial court did not err in denying the motion for a judgment notwithstanding the verdict, inasmuch as the judgment denying the motion for new trial is being affirmed by this court.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
Marshall, Greene & Neely, Harry L. Greene, contra.
William A. Thomas, for plaintiff in error.
DECIDED APRIL 23, 1956 -- REHEARING DENIED MAY 10, 1956 AND JUNE 26, 1956.
Saturday May 23 02:20 EDT


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