Lauman v. Springfield Fire & Marine Ins. Co.

[651]

WILBUR, J.

This action is brought by the plaintiff to recover, upon an insurance policy issued by defendant to plaintiff, for a fire loss which occurred July 14, 1917. The policy was issued June 26, 1917, insuring the premises owned by plaintiff Roy Lauman and mortgaged to plaintiff H. R. Dodd. Attached to the policy is a mortgage clause providing that the loss or damage hereunder should be payable to H. R. Dodd, mortgagee, containing five conditions. The third condition, which is the only one material to this inquiry, is as follows: “Condition Three—This company reserves the right to cancel this policy at any time as provided by its terms, but in such case this policy shall continue in force for the benefit only of the mortgagee (or trustee) for ten days after notice to the mortgagee (or trustee) of such cancellation, and shall then cease; and this company shall have the right, on like notice, to cancel this agreement.”

On July 3d the agent of the defendant company notified Roy Lauman by telephone that the policy was canceled. The policy apparently provided that it might be canceled by five days’ notice in writing. No notice whatever was given to the mortgagee. In the telephonic conversation with reference to the cancellation of the policy Lauman stated that he would get the policy and return it by mail; that it was in the possession of his brother. Two days later defendant’s agent again demanded the policy of Mr. Lauman, who said he would get the policy and mail it. Lauman having neglected to return the policy, defendant’s agent called upon him on July 10th and demanded the policy, to which Lauman replied, “Why worry. . . the policy is canceled and your company has no liability.” The trial court found that on July 10, 1917, the plaintiff Lauman and the defendant agreed to cancel the policy of insurance; that H. R. Dodd did not agree to cancel the policy of insurance, and that the oral notice theretofore given by defendant to Lauman of the cancellation of the policy was not communicated to II. R. Dodd. In pursuance of these findings the court entered a judgment in favor of H. R. Dodd against the defendant for the full amount of the loss, as the mortgage upon the property was one thousand eight hundred dollars, and denied recovery to Lauman.

The appellant contends that Roy Lauman was the agent for H. R. Dodd, authorized to receive notice of cancellation and to agree to such cancellation. As to such agency, R. Gr.