BERTON v. ATLAS ASSURANCE CO

Practice, Civil, Agreed statement of facts. Insurance, Fire. Where a case is submitted upon an agreed statement of facts with no power to draw inferences, the judgment must be for the defendant unless the facts show as matter of law that the plaintiff is entitled to recover.

In an action against an insurance company on an agreement, contained in a policy of fire insurance alleged to have been cancelled by the defendant, that in case of such cancellation the defendant should pay to the plaintiff a ratable portion of the premium named in the policy, the case was submitted upon an agreed statement of facts with no power to draw inferences. Under the terms of the policy the defendant had a right to cancel the policy upon giving a notice in writing to the insured and tendering to him the amount of the unearned premium. Neither of these things was done. It appeared by the agreed statement of facts that, when the policy had been in force for four months, no part of the premium had been paid, and a note which had been given to secure the payment of the premium had been dishonored, that thereupon the agent of the defendant wrote to the plaintiff asking him to return the policy immediately for cancellation, that the plaintiff returned the policy and it was cancelled. Held, that a finding that the cancellation was by mutual consent, so that the provision for a return of unearned premium was not applicable, would not be inconsistent with the agreed facts, and indeed was warranted by them, and that the plaintiff had failed to show as matter of law a right to recover, so that judgment must be given for the defendant.

HAMMOND, J.

The case having been submitted upon an agreed statement of facts with no power to draw inferences, the judgment must be for the defendant unless the facts show as matter of law that the plaintiff is entitled to recover. No inferences except those necessarily implied by law can be drawn either for or against the plaintiff. Boston v. Brooks, 187 Mass. 286, and cases cited. Commonwealth v. Cutter, 13 Allen, 393. Old Colony Railroad v. Wilder, 137 Mass. 536. The question therefore is not whether the agreed facts, with such inferences as a trier of fact, — either judge or juror, — could properly draw, would warrant a finding for the plaintiff, but whether, as matter of law, the agreed facts with the necessary legal inferences require a judgment for him.

The action is brought upon the theory that the policy in question was cancelled by the defendant in the exercise of the right therein reserved to it. But it is manifest that a contract of insurance, like any other contract, can be cancelled or prematurely terminated by mutual consent of the parties. If the policy was cancelled under the right reserved in the contract, then the question would arise whether under the peculiar circumstances the plaintiff was entitled to the return premium. If, however, the policy was cancelled by mutual consent, the provision for the return premium is not applicable.

We are of opinion that the agreed facts do not show conclusively that the policy was cancelled by the defendant in the exercise of the right therein reserved. The whole premium had been charged to the plaintiff, but no part of it had been paid by him or by Knight. As between the insured and the insurer no part of the premium had been paid. The note given by Knight was dishonored when it came due, and it does not appear that any part of it ever has been paid. On November 2, 1908, just before the time it became due, Jones and Company, the defendant's agents, wrote to the plaintiff as follows:

"We understand that you were in our office last Saturday in regard to the insurance on the `Bridgton House' and we would advise you that the note in payment of these policies comes due November 7th, the same being, for $330.

"These policies are all written in your name and while we took a note from Mr. Knight as collateral to the account, yet the policies are not paid for until the note is paid.

"It being necessary to take immediate action, will you kindly advise us at once if it is your intention to pay the note at maturity. We presume you will desire to pay this note in order to continue your protection, but if not, kindly advise us at once, so that we may order the policies cancelled and stop expense for you as it is now running on."

No reply having been received, Jones and Company, on November 10, 1908, wrote to the plaintiff as follows:

"As we have heard nothing from you in reply to our favor of November 2nd, in regard to the insurance on the `Bridgton House' and as we were obliged to pay the note given us for $330 at its maturity yesterday, we would request that you immediately return to us the policies delivered to you by Mr. Anthoine a week ago, as we desire to cancel the same.

"We would be pleased to continue these policies for you but we are not willing to take any loss on them ourselves as it is not necessary. If you will give this matter your prompt attention, it will save us from the disagreeable duty of serving cancellation notices, which must be done to protect ourselves.

"Please let us hear from you. . . ."

Whereupon and in compliance with the request contained in this last letter, the plaintiff returned the policy, with the other seven which stood in the same way, to Jones and Company, and they were cancelled. It does not appear that at or before the time of the delivery of the policy to Jones and Company, or at or before the time of the cancellation, the plaintiff demanded or expected to have any part of the premium returned, although it is stated that before the bringing of the action the plaintiff had often demanded it. It appears that in order to cancel the policy under the right reserved in it the defendant was required to give written notice to the insured and to tender to him the amount of the unearned premium. Neither was done. The plaintiff gave up the policy to relieve the agents from issuing a cancellation notice. Neither he nor anybody for him had paid a dollar for the insurance of four months he had already received. It may well be argued upon the facts that he was content to give up the policy and "call it square," and that the cancellation was by mutual consent; and a finding to that effect would not be inconsistent with the agreed facts but would be fully warranted by them. Under those circumstances it could not be ruled as matter of law that the plaintiff could recover. The only ruling that could have been made was that the plaintiff had failed to show as matter of law a right to recover; and this we understand to have been the ruling in fact made. The ruling having been right, in accordance with the terms of the report there must be.

Judgment for the defendant.