Pettit v. Wood-Owen Trailer Co., 214 N.C. 335 (1938)

Nov. 2, 1938 · Supreme Court of North Carolina

214 N.C. 335

J. B. PETTIT v. WOOD-OWEN TRAILER COMPANY, Employer, LUMBER MUTUAL CASUALTY COMPANY OF NEW YORK, Carrier.

(Filed 2 November, 1938.)

Master and Servant § 45c — Ten-day period required for cancellation of policy runs from receipt of notice of cancellation by mail.

Tbe policy of compensation insurance involved in tbis case provided that it might be canceled at any time by either party upon ten days written notice to tbe other party. Insurer mailed defendant employer notice of cancellation by registered mail, and claimant employee was injured more than ten days after notice was mailed, but less than ten days after receipt of notice by defendant employer. C. S., 922. Tbe Industrial Commission found that there was no unreasonable delay in receipt of said notice by defendant employer. Held,: Tbe ten-day period of cancellation began to run from receipt of the notice by the employer and not from the dat.e the notice was mailed, and the finding of the Industrial Commission that the policy was in effect at the time of the injury is supported by the evidence and is binding on the courts. This construction of the rights of the parties, though contractual, is strengthened by analogy to C. S., 6437, relating to cancellation of fire policies, and the decision in Wilson v. Ins. Go., 206 N. C., 635, construing that statute.

Appeal by plaintiff from Alley, J., at February, 1938, Kegular Term of BuNoombe.

Eeversed.

Tbe findings of facts and judgment of tbe trial Commissioner, which was approved by tbe Full Commission, in part, is as follows: “There is no question but that tbe employer is responsible in tbis ease. Tbe main question to be determined is whether tbe Lumber Mutual Casualty Company of New York was carrying tbe compensation coverage for tbe "Wood-Owen Trailer Company, Incorporated, at tbe time tbe claimant was injured — a few minutes before twelve o’clock, noon, 3 December, 1936. In tbis connection tbe Commissioner finds as a fact from tbe evidence offered in tbe case and from additional evidence recorded and from stipulations forwarded to tbe Commission and entered into by agreement since tbe bearing, that for some time prior to 3 December, 1936, tbe Lumber Mutual Casualty Insurance Company of New York bad carried tbe compensation insurance for tbe Wood-Owen Trailer Company. Tbe question before tbe Commission now is as to wbetber tbeir attempt at cancellation of their policy of insurance was effective at twelve o’clock noon, or thereabouts, on 3 December, 1936.

“According to tbe statement of tbe postmaster at Asheville, North Carolina, contained in bis letter which has been made a part of tbe record in this case by agreement, tbe letter from tbe carrier to tbe employer carrying notice of cancellation arrived at tbe Biltmore Station of tbe Asheville post office at approximately eleven-thirty a.m., 23 November, 1936, it being a registered letter, and that notice of arrival of said registered letter was placed in tbe post office box which was being rented by tbe addressee, tbe Wood-Owen Trailer Company, at approximately twelve o’clock noon, 23 November, 1936, and that tbe registered letter itself was delivered to O. H. Harrison (officer in charge of tbe Wood-Owen Trailer Company) on 24 November, 1936. Tbe Commissioner finds as a fact that tbe delay in receiving said letter from twelve o’clock noon, 23 November, 1936, was not an unreasonable delay in tbe receiving of said mail.

“Tbe Commissioner further finds as a fact from tbe records in tbe office of the Industrial Commission, which were agreed to as being a part of tbe evidence in this case, that notice of cancellation of tbe policy I7S35278, issued by the defendant carrier to tbe defendant employer, was received by tbe Eating Bureau on 23 November, 1936, and was not received by tbe Industrial Commission until 24 November, 1936, and that under tbe Eating Bureau’s rules tbe coverage would extend through 3 December, 1936, and under tbe Commission’s rules would extend coverage through 4 December, 1936.

“Wherefore, tbe Commission finds as a fact that tbe policy of insurance above referred to and issued by tbe defendant carrier to tbe defendant employer was in full force and effect on 3 December, 1936, at tbe time of tbe injury sustained by tbe claimant in this case and finds that tbe defendant carrier is bound by tbe terms of this policy to pay compensation as awarded in this case not inconsistent with tbe provisions of tbe North Carolina Workmen’s Compensation Act.

“It is therefore directed that an award shall issue directing tbe defendants to pay tbe claimant compensation, jointly or severally, for temporary total disability for a period of seven (7) weeks beginning 3 December, 1936, and for injury to claimant’s band of a permanent nature, as provided for by statute, together with all medical costs and hospital costs incident to said injury, when approved by this Commission. Defendants will pay tbe cost of tbe bearing. Compensation shall be based on a wage in excess of $30.00 per week. An attorney’s fee of $50.00 is hereby approved by the Commission for the attorney who represented the claimant in this case. Said fee shall be paid direct to the attorney and deducted from compensation awarded herein.”

The judgment of the court below, in part, is as follows:

“This cause coming on to be heard before Hon. Felix E. Alley, Judge presiding, at the February, 1938, Begular Term of Superior Court of Buncombe County on an appeal by the Lumber Mutual Casualty Insurance Company of New York from an award of the North Carolina Industrial Commission; and the court being of the opinion as a matter of law, after reading the record and the argument of counsel, that the Lumber Mutual Casualty Insurance Company of New York was not the compensation insurance carrier for the Wood-Owen Trailer Company at the time of the occurrence of the accident on 3 December, 1936, and the court being of the opinion that the policy of compensation insurance issued by the Lumber Mutual Casualty Insurance Company to the Wood-Owen Trailer Company was legally cancelled as of 12:01 a.m., 3 December, 1936, and the court being of the opinion and so holding as a matter of law that the Lumber Mutual Casualty Insurance Company is not liable for the payment of any compensation to the plaintiff in this case since its policy was not in force and effect at the time of the sustaining of the injury by the plaintiff; now, therefore, it is ordered, adjudged and decreed that the award of the North Carolina Industrial Commission directing the payment of compensation to the plaintiff by the Lumber Mutual Casualty Insurance Company be and the same is hereby reversed and the Lumber Mutual Casualty Insurance Company is dismissed as a party defendant in this cause. This 8 March, 1938. Felix E. Alley, Judge Presiding.”

The material exception and assignment of error is as follows: “To the action of the Superior Court in signing and entering the judgment reversing the award of the North Carolina Industrial Commission in finding that the Lumber Mutual Casualty Insurance Company of New York was the compensation insurance carrier of the Wood-Owen Trailer Company at the time of the accident on 3 December, 1936, when the claimant J. B. Pettit was injured, and for holding that the Lumber Mutual Casualty Insurance Company of New York was not liable for the payment of any compensation to the plaintiff because its policy was not. in force and effect at the time the plaintiff sustained the injury.”

Worth McKinney and Cecil C. Jackson for plaintiff.

Walter Hoyle for defendant Insurance Company.

OlaResoN, J.

The questions involved: Was the Lumber Mutual Casualty Insurance Company of New York the compensation insurance 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 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.