Urey v. Southern Fire Insurance

Per Curiam. Plaintiff contends .that he had paid the premium in full and that the policy was in force at the time of the fire and that he had *387 no notice that the defendant had attempted to cancel the policy, and that he had not authorized the cancellation. There was some evidence to sustain these contentions. The defendant admits that the policy of insurance was a standard fire insurance policy and issued’ in plaintiff’s name. In Dawson v. Insurance Co., 192 N. C., at p. 315, 316, it is said: “It is expressly stipulated in each policy, as required by statute (1) that ‘this policy will be canceled at any time at the request of the insured,’ and (2) that ‘the policy may be canceled at any time by the company by giving to the insured five days written notice of cancellation.’ No notice of intention to cancel, or of cancellation was given to the insured by the company. Clearly, therefore, if the attempted cancellation of the policies, on 30 April, 1923, was upon the initiative of the companies, or of their agent, acting for them, it was void. It did not release the companies from their obligations under the policies; they were in force, notwithstanding such attempted cancellation, on 2 June, 1923. No contract, valid in its conception, and unobjectionable in its terms, can be canceled, without the consent of all parties, who have acquired rights thereunder. Trust Co. v. Insurance Co., 173 N. C., 558. The insured, when he accepted the policy, consented that the company might thereafter cancel the policy, upon giving him notice, in writing, of five-days. This provision is'manifestly for the protection of the insured. The right of the company to cancel the policy exists only because of the consent of the insured, given at the time of his acceptance of the policy and thereafter to be acted upon by the company only upon strict compliance by it with the terms upon which such consent was given.” The only material question we think involved in this controversy: Was there sufficient evidence to be submitted to the jury on the second issue? “Did the plaintiff Ralph Urey authorize the cancellation of the said policy described in the complaint?” From a careful review of the evidence, unnecessary to set forth, we think the matter resolved itself into practically a question of fact between the plaintiff and one C. H. Williams, and certain facts and circumstances corroborating the plaintiff’s contention. The jury has found with the plaintiff, and we do not feel justified, from the evidence, to say that it was not sufficient to have been submitted to them for their consideration. It is admitted that defendant did not give the plaintiff 5 days written notice required by the policy to cancel same. The jury has found on. sufficient evidence that Williams had no authority and the policy was not canceled at plaintiff’s request. In Cooley’s Brief on Insurance, (2 ed.), Vol. 5, p. 4634, speaking to the subject and citing a wealth of authorities, it is said: “One who is *388 authorized or employed to procure insurance does not thereby acquire any authority to cancel the policies after being procured.” The court below charged the jury: “The burden is upon the defendant to satisfy you by the greater weight of the evidence that the cancellation was authorized by Mr. Urey, the policyholder. The burden of proof is on the defendant to satisfy you that they did cancel the policy with his authority and consent.” We think the charge correct under the facts and circumstances of this ease. Kendrick v. Mutual Ben. L. Ins. Co., 124 N. C., 315; Page v. Insurance Co., 131 N. C., 115; Roberta Mfg. Co. v. Royal Exch. Assur. Co., 161 N. C., 88. It would seem that, under all the facts and circumstances of the case, just dealing would require notice, which the standard policy so wisely provides, to plaintiff of so important a matter as the cancellation of his insuránce policy, but this is not for us. The jury has settled the disputed facts in plaintiff’s favor. In the judgment of the court below, we find No error.