QUINN, Associate Judge.
Appellees purchased a policy of automobile liability insurance from appellant in February 1957. The policy contained the following provision with respect to cancellation:
On May 14, 1957, appellees were involved in a collision with a third party. As a result, they were obliged to pay for the other person's damages. Appellant refused to reimburse them, whereupon they brought this suit. The defense was that the policy had been canceled as of May 9, 1957. The trial judge, sitting without a jury, rendered judgment for appellees, from which this appeal is taken.
The only question before us is whether the policy was effectively canceled. Appellant contended that on April 26, 1957, it mailed to appellees a notice to the effect that it was canceling the policy as of May 9, 1957. Appellees denied receiving such a notice, and the trial judge found that they did not receive it. Appellant argues that according to the terms of the policy, cancellation was accomplished by simply depositing the notice in the mail, and that actual receipt by the policyholder was unnecessary. It is true that several courts which have passed on the type of provision involved here have reached and enforced such an interpretation, at least where there has been no expression by the legislature on the subject.
Appellees urge that appellant's proof was insufficient to establish its claim that it had in fact mailed the notice. Appellant alleged that the notice was sent from its office in Upper Darby, Pennsylvania, to appellees at their Washington address. The only testimony in its behalf was furnished by a Mr. Bittner, one of its local agents, who testified that he was familiar with the procedures and customs in both the Washington and Upper Darby offices. He stated that when a cancellation is decided upon, a letter is typed notifying the policyholder. The original is mailed to the insured, a copy is retained in the company's file, and a copy is sent to the agent who sold the policy. A carbon copy of the notice, supposedly sent to appellees, dated April 26, 1957, was received in evidence. This document bore the stamped notation, "Original of This Letter Enclosed, Sealed and Mailed by [illegible and unidentified] * * * Date 4/26/57." An original postal receipt, which indicated that on April 26 the post office received from appellant a piece of mail addressed to appellees at their Washington address, was admitted into evidence. Mr. Bittner identified both of these exhibits as records and documents kept by appellant in the usual course of its business.
Appellees contend that this general evidence as to the procedures followed in appellant's office was insufficient to show mailing without the actual testimony of the person or persons who allegedly complied with such usage.
It is argued that appellant's proof of mailing was not refuted merely by appellees' evidence of nonreceipt and consequently appellant should have been awarded judgment. We recognize that some of the cases which have held that mailing alone effected cancellation have also determined that proof of mailing is not rebutted by testimony that the notice was not received. Typical of this view is the following statement by the Fourth Circuit:
Other courts, however, have rejected this approach. As Wigmore has pointed out,
In the instant case the trial judge found (1) that appellees did not receive the notice of cancellation; (2) that appellant delivered a piece of mail to the post office in Upper Darby, but he stated that he could not find that it contained the original cancellation notice. He concluded that appellant had not "effected a cancellation of the policy * * *." As we have shown, there was some evidence that the original notice was enclosed in the envelope mailed, although the postal receipt did not disclose the contents. On the other hand, there is appellees' testimony that they "received no notice of the cancellation * * *." Apparently appellant did not attempt to adduce any testimony as to whether appellees did receive either an empty envelope or one containing other material. Considering all the circumstances and in view of the lack of detail in the record before us, we cannot hold that the court's finding is clearly erroneous.
We reiterate that we express no opinion as to whether mailing alone is sufficient to effect cancellation of the policy. The decision of that question must await the case in which both mailing and nonreceipt are conclusively established.