Suennen v. Evrard

Broadfoot, J. 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.” *569 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.