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Womack v. Fenton

Decided: November 17, 1953.

LUCILLE WOMACK, GENERAL ADMINISTRATRIX, ETC., PLAINTIFF,
v.
MICHAEL FENTON, DEFENDANT. MICHAEL FENTON, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT, V. ATLANTIC CASUALTY INSURANCE COMPANY, A CORPORATION, THIRD-PARTY DEFENDANT-RESPONDENT. MICHAEL FENTON, PLAINTIFF-APPELLANT, V. AUTOMOBILE ASSOCIATION OF NEW JERSEY, DEFENDANT-RESPONDENT



Eastwood, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

[28 NJSuper Page 346] A concise prefatory statement will adequately disclose the controversial subject of the present

appeal. On February 27, 1951 the defendant Atlantic Casualty Insurance Company issued to the plaintiff Michael Fenton its conventional automobile insurance policy and simultaneously the defendant Automobile Association of New Jersey issued to him its service contract, both to expire on February 24, 1952. On February 17, 1952 the plaintiff Fenton was involved in an automobile mishap which resulted in the death of one Pearly Womack and subjected Fenton to alleged criminal and civil liability to which the policies of insurance respectively pertained. Fenton was ultimately exonerated from culpable responsibility for the occurrence of the accident but had been obliged to finance the expenses of his defense which amounted in the aggregate to $1,000, of which in the present actions he claimed $800 from the Atlantic Casualty Insurance Company and $200 from the Automobile Association of New Jersey.

The defendants averred that the policy and the service contract were both duly cancelled prior to the occurrence of the accident by a notice mailed to the insured in accordance with the respective relevant terms of each of the two contracts.

The provision in the insurance policy relating to its cancellation is as follows:

"23. CANCELATION: This policy may be canceled by the named insured by surrender thereof or 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 name 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."

The following provision is contained in the service contract:

"CANCELATION:

This membership may be canceled at any time by the Association by giving member notice of cancelation stating when, thereafter,

cancelation shall be effective and the earned fees shall be adjusted pro rata. Notice of cancelation mailed to the address of named member stated in the certificate shall be sufficient notice."

At the conclusion of the introduction of the evidence adduced on behalf of the plaintiff and the defendants, adverse motions for judgment were addressed to the court. The motion for judgment in favor of the defendants was granted. The entry of a conformable judgment ensued, from which the plaintiff Fenton prosecutes the present appeal.

In the consideration of the grounds of appeal, it is of basic significance initially to observe that the contractual engagements of the parties by their express terms required only the mailing of a written notice of the cancellation to the insured at the address appearing in the instruments in order to effectuate their termination. Cf. Pearson v. General Casualty and Surety Co. , 107 N.J.L. 509 (E. & A. 1931); Werner v. Commonwealth ...


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