Opinion
March 10, 1949. —
April 12, 1949.
APPEAL from a judgment of the circuit court for Oconto county: AROLD F. MURPHY, Circuit Judge. Affirmed.
For the appellant there was a brief by Fisher, Reinholdt Peickert of Stevens Point, and oral argument by Richard T. Reinholdt.
For the respondent there was a brief by Lehner Lehner, Adolph P. Lehner, and Howard N. Lehner, and oral argument by Howard N. Lehner and Eugene E. Behling, all of Oconto Falls.
Action commenced August 16, 1947, by Raymond Suennen, administrator of the estate of Louis Suennen, plaintiff, against Cornelius Evrard and Hartford Accident Indemnity Company, an insurance corporation, defendants, to recover damages for the instantaneous death of Louis Suennen as the result of a collision between his automobile and one driven by the defendant Evrard. From a judgment dated August 16, 1948, in favor of the plaintiff, the insurance company appeals.
In December, 1946, the defendant Evrard, a resident of the city of Oconto Falls, Wisconsin, made application to the city council of that city for a license to operate a taxicab. He was informed that it would be necessary for him to file an insurance policy covering the operations of his automobile as a taxicab with more coverage than was provided by the automobile liability policy then in force on his automobile. He then made application to one Gillis, the insurance agent through whom he had purchased insurance, for a policy with the limits required by the city. That company refused to increase the policy for the reason that it did not insure taxicabs. The agent then made two additional applications for this insurance to other companies, and each of the companies refused to write the insurance. After the third rejection the agent referred the application to the Wisconsin Assignment Risk Plan which assigned it to the defendant Hartford Accident Indemnity Company. This company issued its policy dated March 6, 1947, which covered the period from February 27, 1947, to February 27, 1948. The premium was paid in full and the policy was filed with the city clerk of Oconto Falls. Evrard obtained his taxicab license and operated his automobile as a taxicab in and around Oconto Falls. In May, 1947, Evrard went to West Allis, Wisconsin, where he obtained employment. On May 15, 1947, Evrard wrote the following letter to Gillis at Oconto Falls:
"Will you fill out that claim slip and send it to me and I will sign it and send it back.
"I also want my cab insurance canceled and I want some like I had before on my other car and you can give the balance of the money to my mother."
Gillis picked up the Hartford policy at the office of the city clerk and on May 21, 1947, forwarded it to the Hartford Accident Indemnity Company at Hartford, Connecticut with the following letter:
"Inclosed policy No. 78225, is to be canceled out.
"Mr. Evrard has discontinued the taxi business, and has no further use for this policy.
"Yours very truly, "Albert Gillis "Agent "P.S. Please mail the refund check to me at Oconto Falls, Wis."On June 21, 1947, Evrard was driving his car from West Allis, where he was employed, to Oconto Falls. He was accompanied by one Peterson who paid for half of the gasoline and oil used on the trip. Near Oconto Falls they were involved in an accident in which Louis Suennen was instantly killed and one Raymond Suennen was injured. On June 23, 1947, Gillis reported this accident to an adjuster for the Hartford Company who resided at Appleton, Wisconsin. On June 24, 1947, Gillis sent the following telegram to the Hartford Accident Indemnity Company:
"Herewith canceling cancellation letter of May 21, 1947, policy No. 78225"
The company replied to Mr. Gillis that it had received the telegram but its file did not reveal a letter of cancellation dated May 21, 1947. Upon receipt of the letter of May 21st inclosing the insurance policy the Hartford Accident Indemnity Company had forwarded the policy and letter to its Chicago office for processing. The letter and policy were mislaid in the Chicago office. On July 17, 1947, the Hartford Company notified Evrard that his instructions for cancellation on May 21, 1947, had received their attention and they were sending the return premium to Mr. Gillis. That check was returned and on July 29, 1947, the company inclosed a check direct to Evrard who also returned it.
The plaintiff contends that there had been no cancellation of the policy by Evrard; that the taxicab ordinance of the city of Oconto Falls required that the policy of insurance could be canceled only upon ten days' written notice to the city, and that Gillis was the agent of the Hartford Accident Indemnity Company because of the provision of sec. 209.05, Stats. The appellant contends that the surrender of the policy to the company operated as a cancellation thereof under the terms of the policy, that the ordinance was invalid because not properly published, and that Gillis was the agent of Evrard.
In our opinion the sole question involved in this appeal is whether or not the policy issued by the Hartford Accident Indemnity Company was in force on June 21, 1947, when the accident occurred. The policy contained the following cancellation clause:
"This policy may be canceled by the named insured by mailing to the company written notice stating when thereafter such cancellation 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 cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period. . . .
"If the named insured cancels, earned premiums shall be computed in accordance with the customary short rate table and procedure . . . . Premium adjustment may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation becomes effective. The company's check . . . mailed or delivered as aforesaid shall be a sufficient tender of any refund of premium due to the named insured."
The letter of May 21, 1947, was not an effective cancellation of the policy under such cancellation clause. It did not state when after the notice the cancellation should be effective.
"A policy of insurance cannot be canceled under the provisions in that regard, unless such provisions are strictly followed. The right of cancellation does not exist at all except by contract, and a clause in that regard is in the nature of a condition precedent, which must be strictly complied with in order to make an effort to cancel effective to accomplish its purpose." John R. Davis Lumber Co. v. Hartford Fire Ins. Co. 95 Wis. 226, 239, 70 N.W. 84; Gabriault v. Genske, 219 Wis. 383, 263 N.W. 86.
It is not necessary to go into the question of the validity of the ordinance, nor is it necessary to a determination of this case to decide for which party the insurance agent Gillis was acting. Even though he were the agent of Evrard his authority was conditioned upon obtaining another policy upon Evrard's car.
By the Court. — Judgment affirmed.