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Werner v. Commonwealth Casualty Co.

Decided: May 16, 1932.

MAY WERNER AND ANTHONY WERNER, HER HUSBAND, RESPONDENTS,
v.
COMMONWEALTH CASUALTY COMPANY, APPELLANT



On appeal from the Supreme Court.

For the appellant, Morrison, Lloyd & Morrison (Francis V. C. Lloyd, of counsel).

For the respondents, Breslin & Breslin (John J. Breslin, Jr., of counsel).

Lloyd

The opinion of the court was delivered by

LLOYD, J. While two questions are sought to be presented in this record, there is but one available to the appellant and that is whether the insurance company's policy was canceled in the manner specified in the policy itself.

The action was by the Werners to recover from the Casualty company the amount of a judgment which they had recovered for injuries received at the hands of the assured Joseph Bongiorno, and the company's answer was that at the time of the accident the insurance policy had been canceled. It is the sufficiency of the proofs to establish cancellation that was before the trial court and is presented here.

The policy contained this provision respecting cancellation:

"This policy may be canceled at any time by either of the parties upon written notice to the other party, stating when thereafter cancellation shall be effective and the date of cancellation shall then be the end of the policy period. If canceled by the assured, the company shall receive or retain the short rate premium calculated according to the table of short rates printed hereon. If canceled by the company, the company shall be entitled to the earned premium pro rata. Notice of cancellation in writing, mailed to or delivered at the address of the assured as given herein, shall be a sufficient notice, and the check of the company, or of its duly authorized agents, similarly mailed or delivered, shall be a sufficient tender of any unearned premium."

The company sent a notice of cancellation by registered letter requiring the personal receipt of the assured to 102 Sherman avenue, Clifton, the address specified in the policy. The letter was never delivered, but was returned unopened to the insurance company by the postal authorities with the post office endorsement, "returned to the writer unclaimed from Clifton, New Jersey."

Judge Caffrey, hearing the case without a jury, determined that this was not sufficient to effect a cancellation of the policy as required by its terms. The insurance company appeals and contends that this was an erroneous construction of the cancellation provision of the policy, and cites the opinion of the Supreme Court in the case of Raiken v. Commercial Casualty Co. (1927), 5 N.J. Adv. R. 16; 135 A. 480.

It seems to us that the notice of cancellation must be "mailed to" (using the words of the policy), if mailed at all, in such form of mailing as would be reasonably expected to effectively reach the place designated by the policy and thereby come to the notice of the assured. The purpose of the particular provision specifying how notice should be given is of course to protect the company against changes of residence of the assured which it could not be expected to follow, while at the same time affording reasonable protection to the assured through the mail forwarding custom of the postal authorities. If mailed in the ordinary unregistered letter the notice would be delivered at the address named or forwarded and thus reach the assured. If directed, however, to an individual living at such address in a manner requiring a personal receipt it is obvious it could not be delivered unless that person were available and the receipt personally given. It seems to us that mailing a letter to an address by a method that might (and assumably did in this case) prevent it reaching the person ...


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