Creaghe v. Iowa Home Mutual Casualty Co.

323 F.2d 981 (10th Cir. 1963)

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Nature of the Case

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Facts

P has an unsatisfied judgment against Muril J. Osborn that arose from a collision between P's car and Osborn's truck. P sued D claiming that D was the insurer of Osborn's truck at the time of the accident. P seeks to collect from D. D admitted that at one time it issued a liability policy to Osborn, but claims that it was canceled shortly before the accident. Osborn was not a party to this suit and did not appear as a witness. The policy in question was for an operator of a commercial vehicle. A copy of such policy had to be filed with the Colorado Public Utilities Commission and the policy could not be canceled without first giving the Commission a ten-day notice. The policy states that the insured may cancel it by a surrender of the policy or by mailing notice of cancellation. The policy also provides that the premium adjustment be made as soon as practicable after cancellation becomes effective. Osborn came to the agent's office on October 19 and, in the presence of the agent and a secretary, stated he wanted the insurance canceled immediately. A bounced check was returned to Osborn and the agent told him he did not know whether there would be a refund or not. Osborn did not have the policy to be able to physically surrender it. The agent got a copy of the policy and then sent it to D and advised it of the cancellation. D notified the Colorado Public Utilities Commission of the cancellation. The date of receipt of this notice was not determined, but on October 29 the Commission responded to the notice. The collision between Osborn's truck and P's car occurred on November 25. Both parties moved for a directed verdict. The judge reserved his ruling and submitted interrogatories to the jury. These were answered favorably for appellant, but the court found that there was no material fact for the jury and gave appellee a directed verdict. P appealed.