SERVICE FIRE INSURANCE COMPANY OF NEW YORK, Appellant, v. Robert MARKEY, Appellee, 83 So. 2d 855

TERRELL, Justice. July 17, 1952, appellee secured an automobile collision insurance policy from appellant. In June, 1953, the automobile was engaged in an accidental collision resulting in a loss of $1,432.86 to the plaintiff in damage to his car. It is further alleged that no part of said amount has.been paid, account of which plaintiff says that he has been compelled to employ counsel and bring this suit to recover on the policy.

Defendant’s answer alleged that it cancelled said policy - effective August 11, 1952, and that plaintiff was given due notice of such cancellation with a refund of .the unearned premium being made to a finance company. At the conclusion of the trial, the jury returned a verdict for the plaintiff on which the trial court entered an amended final judgment. A motipn for new trial was denied and defendant appealed. The point for determination is whether or not the trial court should have directed a verdict for the defendant at the close of all the evidence.

The record shows that cancellation of the policy became effective at 12:01 A.M. Standard Time, August 11, 1952, and the loss or damage to the car occurred June 14, 1953. The evidence shows that defendant complied with the cancellation provision of the policy before the loss by mailing by ordinary mail the required notice of cancellation to the plaintiff. Evidence also showed that the notice of cancellation was not received by the plaintiff. The trial court denied a motion to set aside the verdict.

The provision for cancellation of the insurance policy is as follows: “This policy may be cancelled by the company by mailing to the 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.” This is the standard form of policy cancellation used by insurance companies. It is unambiguous and must be construed according to its plain intent. Genone v.

Citizens Ins. Co. of New Jersey, 207 Ga. 83, 60 S.E.2d 125; Seaboard Mutual Casualty Co. v. Profit, 4 Cir., 1940, 108 F.2d 597, 126 A.L.R. 1105; Trinity Universal Insurance Co. v. Willrich, 13 Wash.2d 263, 124 P.2d 950, 142 A.L.R. 1; Duff v. Secured Fire & Marine Ins. Co., Tex.Civ.App.1949, 227 S.W.2d 257; Bradley v. Associates Discount Corp., Fla.1952, 58 So.2d 857; American Fire & Casualty Co. v. Combs, Ky.1954, 273 S.W.2d 37; Insurance Co. of Texas v. Parmelee, Tex.Civ.App.1955, 274 S.W.2d 944; Wisconsin Natural Gas Co. v. Employers Mut. Liability Ins. Co., 263 Wis. 633, 58 N.W.2d 424.

These cases approve the rule that proof of mailing the notice of cancellation' to the named insured at his address stated’ in the policy shall be sufficient compliance with the policy provision requiring notice-to the insured. Some of these same authorities hold that convincing evidence of mailing is not rebutted merely by evidence-that the notice was not actually received.. In denying the motion for directed verdict at the conclusion of the testimony, the trial court overlooked these holdings.

The notice provision in the policy in the case at bar conforms substantially with the notice-provision in the policy in Bradley v. Associates Discount Corp., supra. The loss in. the case at bar took place after the notice-of cancellation was mailed to the plaintiff' who testified that he did not get the notice-of cancellation. This court held that mailing of the notice by registered mail without, return receipt was “meticulous compliance”' with the law. The policy provision did not-, require mailing by registered mail and we can not read such a requirement into the-contract. See Rigel v. National Cas.

Co., Fla.1954, 76 So.2d 285. Our attention is directed to Womack v. Fenton, 28 N.J.Super. 345, 100 A.2d 690, treating the question of whether or not a jury issue was presented as to mailing of' the notice by a denial as to its receipt. The - court held that the weight of authority is-, to the effect that where the mailing of the-written notice of cancellation in strict conformity with the expressed essentials of' such a provision is established by proof,, the cancellation is effectual without evidence of the receipt of the notice by the-insured.

In this case, as in the case at. bar, effort was made to overcome with-positive and uncontradicted evidence the-presumption of law that since the notice-was properly mailed, it was received. Said', the court the decisional law is to the contrary. A presumption of law has no artificial probative force of its own. It compels; the particular conclusion for the trial judge in the absence of evidence to the contrary,, it vanishes in the face of positive, substantial, trustworthy, uncontradicted and repellent evidence. In our view Bradley v. Associates Discount Corp. and Womack v.

Fenton, supra, compel a reversal of the judgment appealed from. The motion of appellant for directed verdict at the conclusion of all the testimony should have been granted so the amended judgment is reversed with directions to enter judgment for the defendant. Reversed with directions. THOMAS, THORNAL and BARNS, JJ., concur. DREW, C. J., concurs specially. HOBSON and ROBERTS, JJ., dissent.