Pettit v. Wood-Owen Trailer Co.

OlaResoN, J. The questions involved: Was the Lumber Mutual Casualty Insurance Company of New York the compensation insurance *338 carrier for the Wood-Owen Trailer Company at noon on 3 December, 1936, when the plaintiff was injured? We think so. Where the cancellation provision-of the policy provides for mailing of notice, does the ten-day period of cancellation notice provided in the policy start running from the date of the mailing of the notice? We think not. We think the finding of fact and conclusion of law by the trial Commissioner approved by the Full Commission correct, except we do not think it necessary to determine whether notice to the North Carolina Rating Bureau by compensation carrier that it is canceling a compensation policy is notice to the Industrial Commission. The cancellation provision in the policy is as follows r “This policy may he canceled al any lime by either of the parties upon written notice to the other party stating when, not less than ten days thereafter, cancellation shall be effective. The effective date of such cancellation shall then be the end of the policy period. (Italics ours.) The law of any state, in which this policy applies, which requires that notice of cancellation shall be given to any board, commission or other state agency is hereby made a part of this policy and cancellation in such state shall not be effective, except in compliance with such law. The remuneration of employees for the policy period stated in said declarations shall be computed upon the basis of the actual remuneration to the date of cancellation determined as herein provided. If such cancellation is at the company’s request, the earned premium shall be adjusted pro rata as provided in Condition A. If such cancellation is at this employer’s request, the earned premium shall be computed and adjusted at short rates, in accordance with the table printed hereon, but such short rate premium shall not be less than the minimum premium stated in said declarations. If this employer, when requesting cancellation, is actually retiring from the business herein described, then the earned premium shall be computed and adjusted pro rata. Notice of cancellation shall be served upon this employer as the law requires but, if there is no different requirement, notice mailed to the address of this employer herein given shall be a sufficient notice, and the check of the company, similarly mailed, a sufficient tender of any unearned premium.” In 6 Cyc. of Insurance Law (Couch), part sec. 1440, p. 5095, it is written: “But, as above stated, there is a conflict of authority as to the necessity that the notice be received, if sent by mail. And, as a matter of fact, the weight of authority seems to regard receipt of the notice as a condition precedent to cancellation.” N. C. Code, 1935 (Michie), sec. 6437 (providing for cancellation of a fire insurance policy), in part, is as follows: “Cancellation of policy— This policy will be canceled at any time at the request of the insured, in which case the company shall, upon demand and surrender of the *339 policy, refund tbe excess of paid premium above tbe customary- short rates for tbe expired time. Tbe policy may be canceled at any time by tbe company by giving to tbe insured a five days written notice of tbe cancellation with or without tender of tbe excess of paid premium above tbe pro rata premium for tbe expired time, which excess, if not tendered, shall be refunded on demand. Notice of cancellation must state that tbe excess premium (if not tendered) will be refunded on demand.” In Wilson v. Ins. Co., 206 N. C., 635 (639), is tbe following: “All tbe evidence shows that tbe defendant desired to cancel tbe policy, and proceeded to do so in accordance with its provisions, without tbe consent of tbe plaintiff. Tbe cancellation by tbe defendant did not and could not under tbe provisions of tbe policy take effect until tbe expiration of five days from tbe receipt of the written notice by tbe plaintiff. This provision of tbe policy was manifestly for tbe protection of tbe plaintiff. Dawson v. Ins. Co., 192 N. C., 312, 135 S. E., 34.” N. C. Code, supra, see. 922, is as follows: “Tbe time within which an act is to be done, as provided by law, shall be computed by excluding tbe first and including tbe last day. If tbe last day is Sunday, it must be excluded.” Olsen v. McGraw (Minn.), 247 N. W. Rep., 8. Although we are construing a contract, we think that tbe construction given is correct, and strengthened by analogy to tbe above decision and statute. Tbe North Carolina Industrial Commission found as a fact, upon sufficient competent evidence, which findings are binding upon this Court: That there was no unreasonable delay in tbe Wood-Owen Trailer Company receiving notice of cancellation, which notice was received by it on 24 November, 1936, and therefore, tbe first of tbe ten-day period would commence to run 25 November, 1936, therefore, tbe policy was in full force and effect when plaintiff was injured a few minutes before noon on 3 December, 1936. For tbe reasons given, tbe judgment of tbe court below is Reversed.