Fireman's Fund Insurance v. Hellner

ANDERSON, J. The appellant had the right, under the terms of the policy, to cancel -same upon five days’ notice to the insured. Whether or not a return of the premium for the unexpired period, or the notes for same, ivas a condition precedent to the exercise of this right, we need not decide, as the trial court seems to have ruled favorably to the appellant upon this point. Under either theory of the evidence, the company did no more than notify its agent, Brooks, to cancel said policies, As to whether Brooks complied with the instructions, and actually canceled same, was a question for the jury. The message to Brooks did not operate per se as a cancellation of the policies, but merely instructed him to do so, and until there Avas affirmative action on his part, canceling .same, they remained in force and effect. Of course, had the telegram actually canceled the policies, instead of delegating the duty of so doing to Brooks, and he exhibited the telegram to the insured, it might be questionable whether or not Brooks could liaA'e bound the company by any subsequent action looking to a continuation of the policies-, inasmuch as the telegram disclosed to the insured the Avant of authority to do .so; [452] but the telegram in question was not a peremptory cancellation by the company, to be communicated through Brooks, and was at most a direction to him to cancel, and there was no cancellation unless he actually complied with the direction given him. While there is a conflict in the authorities upon this question, we think the conclusion reached in the case at bar is not only sound ami reasonable, but is supported by the majority of the leading and best-considered cases. — Mohr Distilling Co. v. Ohio Ins. Co., (C. C.) 13 Fed. 74; 18 Cyc. p. 648; 2 Joyce on Insurance, § 1660; Jno. R. Davis Lbr. Co. v. Hartford F. Inc. Co., 95 Wis. 226, 70 N. W. 84, 37 L. R. A. 131; Van Valkenburg v. Lenox F. Ins. Co., 51 N. Y. 465; Goit v. National Protection Ins. Co., 25 Barb. (N. Y.) 189; Aetna Ius Co. v. McGuire, 51 Ill. 342; Van Tassel v. Greenwich Ius. Co., 151 N. Y. 130, 45 N. E. 365; Tisdale v. New Hampshire F. Ins. Co., 11 Misc. Rep. 20, 32 N. Y. Supp. 166, affirmed 155 N. Y. 163, 49 N. E. 664, 40 L. R. A. 765; Niche v. Am. Central Ins. Co., 152 N. Y. 635. Section 4594 of the Code of 1907 (section 2619 of the Code of 1896), provides for a recovery of 25 per cent, on the amount of the actual loss or damage, if the insurer belonged to, or was a member of, or in any way connected with, any tariff association, etc., either at the time of the issuance of the policy or subsequently before the trial. This statute was upheld as not being unconstitutional in the case of Continental Co. v. Parks, 142 Ala. 650, 39 South. 204, and we need only to cite and reaffirm said decision. The appellant insists, however, on a point not discussed and considered in the Parks Case, supra, that the penalty is fixed on the loss or damage sustained, regardless • of the amount of the insurance. We think the clear intent and meaning of the statute is to authorize the recovery in the nature of a penalty of 25 per cent. [453] on the amount to which the insured is entitled, under the policy — ex vi termini, 25 per cent, of the loss or damage as covered in the policy, and not 25 per cent, of the loss or damage sustained and not covered by the policy. Indeed, the trial court properly put this construction on the statute, and instructed the jury that the penalty meant 25 per cent, on the amount which the plaintiff was entitled to recover under the policy. The ruling of the trial court upon the pleading and charges as to the penalty claimed was in harmony with the statute. The evidence of the witness Young was more than a mere conclusion or opinion, and tended to show that the defendant was connected with the tariff association, and the trial court did not err in declining to exclude same in its entirety. The judgment of the' city court is affirmed. Dowdell, C. J., and Simpson and Mayfield, JJ., concur.