Savarese v. State Farm Mutual Automobile Insurance

DRAPER, J.

Plaintiff first recovered judgment against Floyd J. Dickerson for injuries to person and property sustained in an automobile collision which occurred at about 2 o’clock a. m., June 15, 1954. She then brought this action, alleging that defendant was, at the time of the accident, the insurer of Dickerson against liability arising from his operation of his automobile, and seeking recovery from the insurer of the amount of the earlier judgment. Defendant contended that the policy had in fact been cancelled at 12:01 a. m. on the day of the accident. The case was tried to the court without a jury. Judgment was for defendant, and plaintiff appeals.

Respondent’s underwriting superintendent identified a copy of a letter, properly addressed to Dickerson, dated June 3, 1954. This letter notified him that his insurance was “can-celled as of June 15, 1954, at 12:01 a. m.” This witness testified that the established practice of the company is to type an original and copies of this letter, together with original and copy of cancellation notice to the lien holder, 10 days before the date they bear. Upon typing, a copy of the letter to the owner is sent to the company’s agent, to give him advance notice of the action. The remaining letters are clipped together and placed in a suspense file. On the date they bear, the letters (to owner and lien holder) are mailed. If any such letter is returned, efforts are made to effect delivery, and the original envelope is retained in the file. In the ease at bar, the letter to Dickerson was not returned.

Dickerson testified that he did not receive the notice of

[520]

cancellation, but the trial court found that it had in fact been delivered to him. Appellant contends that the insurer must show actual delivery of the notice to Dickerson. Appellant then argues that, in the absence of testimony by the party who deposited the letter with the post office, its mailing, is shown only by the presumption that “the ordinary course of business has been followed” (Code Civ. Proc., § 1963, subd. 20). There is no direct evidence of receipt of the letter by Dickers on and, says appellant, such receipt is evidenced only by another presumption (Code Civ. Proc., § 1963, subd. 24). This, says appellant, amounts to basing a presumption upon a presumption, and thus results in inadequate proof of receipt.